Intermittent leave allows for recertification of the serious health condition each year

Let's say you have an employee who suffers from chronic migraine headaches. She applies and is approved for intermittent FMLA leave on September 24. Your company uses the calendar year to calculate FMLA eligibility benefits. During her period of intermittent leave, her condition worsens and she takes an extended period off, which lasts into the beginning of the next calendar year. Because you assume that FMLA eligibility cannot carry over from one year to the next, you ask the employee to recertify her need for FMLA leave as of January 1. When she fails to do so, you begin counting her absences as unexcused, and ultimately terminate her for excessive absences.

When the inevitable lawsuit is filed, are you correct that FMLA eligibility expires at the end of the FMLA year? Can you require the employee to recertify the need for the leave at the beginning of the next FMLA year, and legally deny further leave if she fails to do so? According to the 6th Circuit in Davis v. Michigan Bell Tel. Co. (9/29/08), the answer is yes:

[A] series of absences, separated by days during which the employee is at work, but all of which are taken for the same medical reason, subject to the same notice, and taken during the same twelve-month period, comprises one period of intermittent leave. That leave, however, can only extend to the end of the twelve-month FMLA period in which it began. Once a new twelve-month FMLA period begins, any additional absences caused by that same chronic condition would constitute a new period of intermittent FMLA leave. Otherwise, there would be no point at which the initial period of intermittent FMLA leave ended and a new period commenced. Under that scenario, employees would never have to reestablish their eligibility for FMLA leave and would therefore be perpetually entitled to twelve weeks of FMLA leave per year based on a single eligibility determination. (internal quotations and citations omitted).

Thus, absences caused by the same chronic condition, but occurring in different twelve-month FMLA periods, constitute different periods of FMLA leave. If a company has an employee with a chronic condition that spans two years, it can legally re-determine the employee's FMLA eligibility at the beginning of each leave year, according to the Davis opinion.

This opinion has significant implications on how an employer chooses to calculate the FMLA leave year, an issue we'll look at tomorrow.

New Ohio minimum wage rate

Ohio's minimum wage law calls for the state minimum wage to increase by the annual rate of inflation each January 1. On September 30, the Ohio Department of Commerce announced that the new minimum wage effective 1/1/09 will be $7.30 per hour. Stash this tidbit away for when the calendar turns.

WIRTW #50

Tattoos seem to be hot issue this week. In addition to my post on this topic, The Pennsylvania Labor & Employment Blog, The Word on Employment Law, and The HR Capitalist all provide their own points of view.

Human Resource Executive Online has a nice summary of the various employment law ballot issues around the country. Why should Ohio companies care what is going on in other states? Because it may foreshadow what's next for Ohio.

Do you want to put yourself in the best position possible in litigation? Take the advice of the Manpower Employment Blawg and tell the truth.

The Delaware Employment Law Blog reports on a settlement that cost a company more than $300,000 for the acts of a bullying employee.

In a similar vein, On Point gives its thoughts on a $101,500 verdict in a sexual harassment claim brought by a barmaid for "Animal House"-type behavior at her workplace.

BLR's Daily HR Advisor lists 25 forbidden interview questions. I've previously written on how to avoid hidden interviewing traps.

Law.com discusses the difficulties inherent in trying to discover online data in litigation.

A second opinion on terminating the chronic complainer

There is perhaps nothing scarier to an employer than an at-risk employee who complains about discrimination. Many employees complain because they think it affords them some level of job protection, and many employers become gun shy in pulling the trigger for fear of a retaliation lawsuit.

A couple of months ago, I discussed Butler v. Alabama Dept. of Transportation, which gave employers hope that all is not lost when considering terminating a chronic complainer. Magyar v. Saint Joseph Regional Medical Center (7th Cir. 9/12/08) provided a different take on this issue, and serves as a cautionary tale for companies that want to terminate an employee who complains about discrimination.

Jessica Magyar worked as a hospital scheduler. Two times, a co-worker named Carl, 30 years her senior, sat in her lap and whispered to her that she was "beautiful."  Magyar reported the incidents to her immediate supervisor, Goddard, who then spoke to Carl but did not follow-up with Magyar.

While the harassment temporarily stopped, Magyar feared "that at any moment there might be a third incident." Thus, two months later she went to the Hospital's General Counsel and complained about Goddard's failure to respond to the complaint. Goddard then followed-up with Magyar, who secretly tape recorded the conversation. Approximately a week later, Goddard informed the GC that Magyar's issues "are resolved."

In the meantime, Goddard combined Magyar's job with that of another part-time employee. With the creation of the new position, Magyar received no further work and was eventually terminated. She then sued for retaliation.

The majority opinion found that Magyar's complaint up the chain of command constituted protected activity:

We note that, to succeed on a retaliation claim, Magyar need not prove that the underlying conduct she perceived as sexual harassment actually was serious enough to constitute a Title VII violation. Instead, she need only show that, when instituting her grievance, she had a "sincere and reasonable belief" that she was opposing an unlawful practice.... In this case, the record sufficiently demonstrates that Magyar subjectively felt that she had been sexually harassed.... Having a man old enough to be her father plop into her lap and put his lips to her ear to whisper “you’re beautiful” is the type of occurrence that, if it happened often enough, could constitute sexual harassment, and so Magyar's grievance was objectively reasonable.

In a strong dissent, however, Judge Posner takes the majority to task for missing the distinction between complaining about harassment and complaining about the handling of a complaint of harassment:

Magyar was complaining to the general counsel not of having been sexually harassed (she mentioned the alleged harassment only by way of background, for that grievance had long since been resolved), but of Goddard’s handling of the grievance.

Even more troubling to Judge Posner, however, was that Magyar seemed to be setting up the hospital for a lawsuit:

Shortly after the meeting with Goddard of which Magyar now complains (the meeting in which she revealed the sexual assault), she emailed Goddard saying: "Thank you ... so much for listening and understanding. You made me feel a lot more comfortable when I left. Thanks :)"

The only possible explanation for Magyar's dramatic swerve from being pleased with Goddard's handling of the situation (the smiley-face email) to litigation planning, complete with an illegal secret tape recording, is that she saw that she was about to lose her job. Otherwise the two-month interval between the meeting with Goddard that is the core of her complaint about Goddard's handling of the harassment grievance and the meeting with the general counsel makes no sense.

My friends at the Workplace Prof Blog take Judge Posner's side:

It seems that Judge Posner is correct. Magyar's complaint about the processing of her sexual harassment complaint  is not protected activity under Title VII. An internal investigation is not a practice made an unlawful employment practice by Title VII. It is rather a complaint about the handling of an internal investigation which is an internal business decision.

I do not think the analysis of this case is so simple. A complaint about the handling of a harassment complaint should count as protected activity. If an employee cannot complaint up the chain of command about a manager's handling of a harassment complaint, there would be little accountability or oversight for how a company adjusts the complaint. The company would always be able to hide behind the "internal business decision" defense and act with impunity towards the employee who takes issue with the harassment investigation. Even more troubling to me is Judge Posner's weighing of the facts on summary judgment. Yes, there are concerns about Magyar's motivation given the timing of her conduct and her surreptitious recording. Yet, aren't these facts that should be weighed and resolved by a jury?

For businesses, the takeaway from this case is that any employee who complains about discrimination or harassment should be treated with extra care. It does not mean that such an employee cannot be terminated. Any such termination, however, must be carefully deliberated and meticulously documents, your attorney should be consulted before reaching a decision, and you should brace yourself for the likely prospect of defending a retaliation lawsuit.

Employment decisions based on tattoos are not discriminatory

Last week I was having lunch in the Tulsa airport, and saw a woman with green hair, a bull ring through her nose, and at least a dozen large tattoos. I turned to my partner and asked, "Who would ever hire her?" Apparently, a lot of employers are asking the same question.

According to last Wednesday's New York Times, courts continue to find policies prohibiting tattoos and body modifications to be nondiscriminatory.

While there is ample evidence of tattooing’s migration from the backwaters of alternative culture into the mainstream (or at least onto some part of David Beckham’s body), we are still a long way from seeing facial tattoos on the selling floor at Bloomingdale’s or the trading floor of the stock exchange.

In case after case, the courts have found on-the-job appearance requirements — including policies forbidding tattoos and body modifications — to be nondiscriminatory.

Among the better publicized cases was that of Kimberly Cloutier, a Massachusetts woman who sued for the right to wear her 11 earrings and eyebrow piercings while at work as a Costco cashier. Claiming membership in the Church of Body Modifications, Ms. Cloutier argued her piercings were a form of religious expression. Although she ultimately lost, her case was soon followed by others in Massachusetts and in Washington State.

There is nothing discriminatory on its face about refusing to hire the green-haired, tattooed, or pierced. It is simply a decision of the type of image that your company wants to project. Of course, it matters that such a policy is applied non-discriminatorily. In other words, a company can't have two standards to visible body art -- one for men and one for women, or one for whites and one for blacks. So, to answer my question, a company should not be liable if it rejects the green-haired airport barfly because of her unique appearance.

Time off for religious holidays

Today is Rosh Hashanah, the Jewish New Year. As it falls during the work week, many Jews (including yours truly) are taking the day off. The question, however, is what are an employer's obligations to an employee who asks for a day off to observe a religious holiday?

Title VII requires an employer to reasonably accommodate an employee whose sincerely held religious belief, practice, or observance conflicts with a work requirement, unless doing so would pose an undue hardship. An accommodation would pose an undue hardship if it would cause more than de minimis cost on the operation of the employer's business. Factors relevant to undue hardship may include the type of workplace, the nature of the employee’s duties, the identifiable cost of the accommodation in relation to the size and operating costs of the employer, and the number of employees who will in fact need a particular accommodation.

Scheduling changes, voluntary substitutions, and shift swaps are all common accommodations for employees who need time off from work for a religious practice. It is typically considered an undue hardship to impose these changes on employees involuntarily. However, the reasonable accommodation requirement can often be satisfied without undue hardship where a volunteer with substantially similar qualifications is available to cover, either for a single absence or for an extended period of time.

In other words, permitting Jewish employees a day off for Rosh Hashanah, and next week for Yom Kippur, may impose an undue hardship, depending on the nature of the work performed, the employee's duties, and how many employees will need the time off. Employees can agree to move shifts around to cover for those who need the days off, but employers cannot force such scheduling changes.

In plain English, there might be ways around granting a day or two off for a Jewish employee to observe the High Holidays, but do you want to risk the inevitable lawsuit? For example, it will be difficult to assert that a day off creates an undue hardship if you have a history of permitting days off for medical reasons.

Legalities aside, however, this issue asks a larger question. What kind of employer do you want to be? Do you want to be a company that promotes tolerance or fosters exclusion? The former will help create the type of environment that not only mitigates against religious discrimination, but spills over into the type of behavior that helps prevent unlawful harassment and other liability issues.

D.C. Court rules in favor of transgendered job applicant

Four years ago, the 6th Circuit handed down a landmark decision in Smith v. Salem. In Smith, the Court reversed the district court's dismissal of a Title VII sex discrimination claim brought by a transgendered firefighter. It found that

Sex stereotyping based on a person’s gender non-conforming behavior is impermissible discrimination, irrespective of the cause of that behavior; a label, such as “transsexual,” is not fatal to a sex discrimination claim where the victim has suffered discrimination because of his or her gender non-conformity....

Having alleged that his failure to conform to sex stereotypes concerning how a man should look and behave was the driving force behind Defendants’ actions, Smith has sufficiently pleaded claims of sex stereotyping and gender discrimination.

The following year, in Barnes v. Cincinnati, the same court followed suit by affirming a jury verdict in favor of Phillip Barnes, a pre-operative male-to-female transsexual who was denied a job in the Cincinnati Police Department.

Last week, the D.C. District Court, following Smith and Barnes, reached a similar conclusion in Schroer v. Billington. In that case, the Library of Congress had offer a position to David Schroer, until he told his his future employer that he would be showing up at work as Diane. He sued for gender discrimination after the Library rescinded the job offer. The trial judge ruled that the employer is liable for sex discrimination:

The evidence establishes that the Library was enthusiastic about hiring David Schroer -- until she disclosed her transsexuality.... The Library revoked the offer when it learned that a man named David intended to become, legally, culturally, and physically, a woman named Diane. This was discrimination "because of ... sex."

In other words, while transsexuality and transgenderism are not protected classes in and of themselves, men who fail to conform to sexual stereotypes of how men are supposed to look and act might be protected by Title VII's prohibition against sex discrimination. My concern with this decision is that if gender identity is protected under the umbrella of sex discrimination, why do we need to amend Title VII to specifically include gender identity as a new protected class.

For companies, the lesson to be learned in a universal one - employment decisions should always be made based on legitimate criteria and not innate personal characteristics. The former can always be defended; the latter opens up an organization to liability.

WIRTW #49

It's been a fairly light week, but I still have a few gems to pass along from my fellow bloggers:

The HR Capitalist writes on the bane of every lawyer's and businessperson's spouse, Blackberry addiction.

The Connecticut Employment Law Blog dissects whether there is a right or wrong answer to using social networking sites in employment decisions. For my thoughts on this issue, see Revisiting the Facebooking of job applicants.

HR World reports on Working Mother Magazine's annual list of the 100 best companies for working moms.

Wage & Hour -- Developments & Highlights discusses a case recently filed in the Northern District of Ohio, which seeks to determine whether topless dancers are employees or independent contractors.

BLR's HR Daily Advisor tells us how companies beg to be sued.

Finally, Jottings by an Employer's Lawyer discusses Walmart's ongoing wage and hour problems.

BREAKING NEWS: President Bush signs the ADA Amendments Act

While the Wall Street bailout/rescue plan has the White House preoccupied, President Bush did find time today to sign the ADA Amendments Act. The new provisions go into effect January 1, 2009. For more on what this new law means, see House overwhelmingly votes in favor of ADA Amendments Act of 2008.

Discrimination verdicts rise 70% in one year

Earlier this week I reported that fewer plaintiffs are winning their federal employment cases. Another study, however, suggests that those those are winning are winning bigger verdicts. Mark Toth at the Manpower Employment Blawg reports on a study released by Jury Verdict Research, which concludes that the median discrimination verdicts rose from $147,500 in 2006 to $252,000 in 2007, an astounding 70% increase.

The good news, however, is that employers really are better off in federal court, where they won 43% of the time, compared to only 34% in state court. And, in the cases won by plaintiffs, the median jury award in federal court was 22% lower than the median state jury award.

Is this increase a trend or an anomaly? It's hard to say. 2008 already saw the largest employment law jury verdict in the history of Ohio, $46.6 million. In a today's difficult economy, it is certain that more employment cases will be filed. It will remain to be seen if jurors who are facing their own tough economic times will continue to be generous.

A prediction on how Ohio state courts handle the ADA Amendments Act

It's been fairly well reported, here and elsewhere, that Congress has passed the ADA Amendments Act, and once President Bush signs it, as he is expected to do, the ADA's changes will go into effect on January 1. Beginning on January 1, the definition of what qualifies as a "disability" under the ADA will be much broader statutorily. One of the key changes is that the Sutton v. United Airlines U.S. Supreme Court case, which held that whether an impairment substantially limits a major life activity is to be determined with reference to the effects of mitigating measures on the impairment, will be expressly overturned.

The open question, however, is what will happen to the definition of "disability" under Ohio law. R.C. 4112.01(A)(13) defines "disability" as:

a physical or mental impairment that substantially limits one or more major life activities, including the functions of caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working; a record of a physical or mental impairment; or being regarded as having a physical or mental impairment.

This definition mirrors the old definition of "disability" in the ADA, and, in fact, Ohio courts often look to the old federal definition and the cases interpreting it (such as Sutton) to give some meat to the rather bare-bones statutory definition.

The question, then, is what will Ohio courts do with Ohio disability discrimination law after the ADAAA becomes federal law. Will Ohio courts follow Sutton and its progeny, or judicially adopt the new federal statutory definition? To the extent that the Ohio legislature has not changed the statutory definition of a "disability" under R.C. 4112, Ohio courts would be overstepping their bounds by doing so. The Congress made a decision to change the federal definition of disability. If Ohio wants to follow suit, it should do so through its legislature, and not via the courts' ad hoc adoption of the new definition.

If I am correct, and Ohio state law continues to mirror the old federal definition, it will be curious to see if plaintiffs in disability discrimination cases continue to favor state courts (with their better jury pools) and state law (with its more expansive damages), or will move towards federal claims in federal forums to take advantage of the broader coverage afforded by the ADAAA.

A rant about forms

Employment forms are not difficult to find. They are all over the internet. There are form handbooks, form employment applications, form harassment policies, form severance agreements, and myriad other employment and personnel related documents. Many companies even have old forms that an attorney prepared years ago, and dust them off when a situation warrants. Companies rely on these forms to save a few dollars in legal costs. After all, why pay a lawyer several hundred dollars to draft a form for a business when they are available for free? A lawyer must have reviewed it at some point, right? Not necessarily.

Even if a lawyer did review a form at some point, it may not be up to date, it may not have been reviewed for a specific state's particular employment laws, and it certainly was not reviewed for a specific legal situation. Forms are just that, a clean slate that can be adapted to a situation, but not perfect for any or every situation. Each state has specific laws that impact a form's language. Moreover, the law itself is always in flux. New cases come out that give new spins to old laws. New laws are passed that create new legal obligations. How many "form" EEO policies on the internet do you think take into account the Genetic Information Non-Discrimination Act that was passed in May, or account for Ohio's recent ban on military status discrimination? Do you think a generic employee handbook will take Ohio's smoking ban into consideration?

The point is, it may save a few dollars to use a form without consulting an attorney, but it will cost many dollars more to hire a lawyer to fix a mistake after the fact, especially if the mistake does not come up until a disgruntled employee files a lawsuit.

'Tis better to be in federal court after all

I don't think I'm giving away any state secrets of the defense bar by saying that all told, employers would much rather be in federal court than state court. Federal court gives a better jury pool and a much better chance that a summary judgment motion will be granted. Now, a study commissioned by the American Constitution Society confirms this long held belief. According to the study, which was based on data from 1979 to 2006, plaintiffs who brought employment discrimination suits in federal district courts prevailed only 15 percent of the time, compared to 51 percent for non-employment related cases. Some other key numbers from the study:

• The filing of employment cases in federal court has dropped by 37% from 1999 to 2007.
• The courts of appeals reverse 41% of plaintiffs' victories in employment cases.
• The same courts of appeals only reverse 8.7% of defendants' victories in employment cases.

While comparable state court data is not available, it does not take a huge leap of logic to conclude that federal filings are down 37% because more cases are being filed in state court.

This study is not necessarily groundbreaking news, but it does underscore the importance of forum selection in an employment lawsuit, and the real value to a company to have its case heard in federal court.

[Hat tip: Legal Blog Watch]

WIRTW #48

The news cycle this month has certainly been interesting. I can't recall when 3 huge stories dominated in such rapid succession. We started with Sarah Palin, moved onto Ike, and now we're inundated with economic doom and gloom. I'm starting this week's review with the latter. The Labor and Employment Law blog discusses a recent survey that asked employees what they are most worried about. It makes for an interesting read, and gives companies some insight on what issues are important to their employees.

Of course, the election is always newsworthy these days. COSE Mindspring asks if presidential politics and office politics can co-exist. Rush on Business reports on a summary prepared about the presidential candidates' positions on small business issues.

In light of the upcoming season premier of The Office, That's What She Said reminds employers that now is as good a time as any to review personnel policies.

World of Work reports on a recent 6th Circuit case that I missed, in which the court held that a company's failure to reasonably accommodate an employee's disability supported the employee's constructive discharge claim.

The Manpower Employment Blawg gives 10 great tips for testifying in court or a deposition.

The Delaware Employment Law Blog discusses a topic I touched on yesterday, the inherent dangers in making deductions from employees' paychecks.

Finally, Workplace Privacy Counsel lets us know that web-surfing at work is becoming more acceptable.

A primer on intermittent FMLA leave

Is there anything more frustrating for HR professionals than intermittent leave under the FMLA? While I can't ease that frustration, I can provide short primer on the rules of games that must be followed.

What is intermittent leave and when does it have to be provided?

The FMLA provides that leave may be taken "intermittently" in the following circumstances:

• When medically necessary for planned or unanticipated medical
  treatment of a serious health condition.
• For recovery from treatment of a serious health condition.
• For recovery from a serious health condition.
• To provide care or psychological comfort to an immediate family member with a serious health condition.

Examples of intermittent leave include leave taken on an occasional basis for medical appointments, or leave taken several days at a time spread over a period of six months, such as for chemotherapy.

Treatment by a health care provider is not necessary if the employee or family member is incapacitated or unable to perform the essential functions of the position because of a chronic serious health condition.

Intermittent leave is not available after the birth or placement of a child for adoption or foster care, unless the employer agrees. A pregnant employee, however, is allowed to take leave intermittently for prenatal examinations or for her own condition, such as for periods of severe morning sickness.

May an employer transfer an employee to an "alternative position" to accommodate intermittent leave?

The short answer is yes, if the intermittent leave is foreseeable based on planned medical treatment for the employee or a family member. The alternate position must have equivalent pay and benefits, but not necessarily equivalent duties. The employer may increase the pay and benefits of an existing alternative position to make it equivalent, or may transfer the employee to a part-time job with the same pay and benefits. When the employee no longer needs to continue on leave and is able to return to full-time work, the employee must be placed in the same or equivalent job as the job he/she left when the leave began.

It should go without saying that retaliation is still illegal, and an employer cannot transfer an employee as a means to discourage the taking of intermittent leave.

How is intermittent leave calculated?

Only the amount of leave actually taken may be counted toward
the 12-week FMLA entitlement. For example, a full-time employee working five days a week, one day off would equal 1/5 of a week of FMLA leave.

If an employee works part-time or a variable schedule, the amount of leave is determined  on a pro rata basis by comparing the new schedule with the employee's normal schedule. For example, if an employee who normally works 30 hours per week works only 20 hours a week, the employee's ten hours of leave would constitute one-third of a week of FMLA leave for each week the employee works the new schedule.

If an employee's schedule varies from week to week, a weekly average of the hours worked over the 12 weeks prior to the beginning of the leave period would be used for calculating the employee's normal workweek.

An employer may limit leave increments to the shortest period of time that the employer's payroll system uses to account for absences or use of leave, provided it is at least one hour. Thus, if a payroll system only tracks time in whole days, that company will have to figure out a way to track intermittent leave by the hour.

May an employer deduct hourly amounts from an employee's salary for intermittent leave taken?

Again, the short answer is yes, but with a huge caveat. Any such deductions to the salary of an exempt employee will severely jeopardize that employee's exemption. Companies must take extreme care in making any deductions from the salaries of exempt employees.

UPDATE: House passes ADA Amendment Act; President expected to sign shortly

The Connecticut Employment Law Blog and World of Work have the details.

For my earlier thoughts on these amendments, see House overwhelmingly votes in favor of ADA Amendments Act of 2008.

The Ohio Healthy Families Act is dead, but what's next?

Aside from being key battleground states in the 2008 election, Ohio and Colorado have another similarity, one to which employers in our state should pay attention.

In 2006, both states' voters passed ballot initiatives that amended their respective state constitutions to provide for a higher minimum wage. Why, you might be asking, should Ohio businesses care about what Colorado voters did two year ago? Because both minimum wage ballot initiatives were union-backed, as was the Healthy Families Act, and as are four different measures on Colorado's ballot this fall that should have businesses scared for their lives. According to Business Insurance, Colorado employers are fighting four proposed constitutional amendments on November's ballot that would devastate businesses in that state, by:

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

Ohio businesses quickly mobilized against the Healthy Families Act, and should be commended for their efforts to defeat it. Imagine, however, the devastating cumulative effect of no more at-will employment, mandatory health insurance, and private lawsuits for workplace injuries. Companies need to stay vigilant in their efforts to keep Ohio business-friendly, and combat the type of job-killing ballot initiatives that labor organizations are testing in Colorado. Do not think for a second that if one or more of these Colorado initiatives are successful that we won't see some combination of them in 2010.

As long as labor organization can place transparently populist anti-business measures on the ballot via petition drives, we need to be mindful of what is happening in Colorado and fearful that it will come our way in the next election cycle.

Do you need to control employee blogging?

Washington Redskins Tight End Chris Cooley apparently (and accidentally) posted pictures from the team's playbook on his blog. The Washington Post quotes Skins Head Coach Jim Zorn:

It "is quite interesting, I think for all coaches in today's technology-sound world," Zorn said. "At any level, not only the NFL level, but at any level there's MySpace, Facebook, there's blogging. I just think it's something that most coaches have never had to deal with or have dealt with. This will be my first experience. There's no rules, there's no laws.

"I think the rule of thumb that I'm going to have to contend with here is that if you have your own blog, and you're putting photos or you're even saying anything, that nothing really should be put in there that has Redskins playbook [on it]. That goes without saying. I think Chris used a little bit of poor discretion using that type of prop, if you will."

As this story illustrates, you can't always trust good intentioned employees to use good judgment, never mind disgruntled employees who want to harm your business. Coach Zorn says that there are no rules, but that does not have to be the case in your organization.

Companies should consider accounting for employee blogs and other social media in overall technology use policies. Do you want employees to blog at all? If not, say so in a policy. If so, consider implementing clear guidelines employees can follow about what they are and are permitted to say.

I also recommend taking a look at Dan Schwartz's (of the Connecticut Employment Law Blog) five tips for drafting a corporate blogging policy:

1. Employees can be instructed that they should not comment or use any confidential information about the company or discuss internal matters. (Whether the employee should be allowed to identify the employer is a business decision for the company.) 
2. Employees should be told that blogs should be done during non-working hours and not using Company resources, unless authorized by the company.
3. Employees should be told that the blog should have appropriate disclaimers that indicate that all views on the blog are those of the individual and have not been reviewed or approved by the [company].
4. Employees should be told that the blog should not imply sponsorship, endorsement or support by the company, nor should the blog use any logos or trademarks of the company.
5. Employees should be instructed that the blogs should not be libelous or defamatory, and that the blogs should avoid being written in a way in which it could be construed as harassing or discriminatory on the basis of a protected category.

Without some clear guidelines in place, employees don't know what's permissible and what's not, and like Coach Zorn, employers feel like they don't have and rules to fall back on. Common sense simply doesn't always work.

Senate unanimously passes amendments to ADA

Last week, the Senate unanimously passed the ADA Amendments Act (S. 3406). It is similar to the bill the House passed 402-17 earlier this year. Given this widespread bipartisan support, it is likely that we might see the first Democratically-driven employment law changes before President Bush leaves office. By doing so, this President Bush would expand upon the law first enacted by his father in 1990.

The highlights of the bill defines "substantially limits" to mean "materially restricts," it specifies examples of major life activities, and expands upon them to include major bodily functions, and helps employers by exempting from "regarded as" claims transitory or minor impairments that last or are expected to last for 6 months or less.

The biggest changes, though, will come to the definition of "disability" itself. In Sutton v. United Airlines, the Supreme Court held that whether an impairment substantially limits a major life activity is to be determined with reference to the effects of mitigating measures on the impairment. If this bill becomes law, it will reverse that ruling, and require the determination of whether an impairment substantially limits a major life activity to be made without regard to the ameliorative effects of mitigating measures.

[Hat tip: Workplace Horizons]

A lesson in drafting clear handbook policies

Quality Mold had a handbook policy under which an employee would forfeit unused vacation upon a termination for "gross misconduct." The handbook, however, did not ascribe a definition to "gross misconduct." Quality Mold administered drug tests to its supervisors after receiving a tip from an employee's mother that one supervisor was furnishing drugs to her son. John Lang tested positive for cocaine and marijuana. Quality Mold terminated him and refused to pay him for his unused vacation time, determining that a failed drug test constitutes gross misconduct. In Lang v. Quality Mold (Summit Cty. 9/10/08), the Court of Appeals disagreed:

Quality Mold has argued that "gross" means "[g]laringly, obvious, [or] flagrant." As the magistrate noted, there was no evidence that Mr. Lang distributed illegal drugs to other employees. There was also no evidence that Mr. Lang's drug use had impaired his performance, that he had endangered other workers, that he had any absenteeism or disciplinary problems, or that he had caused harm to Quality Mold's other employees or property. Under these circumstances, this Court concludes that the trial court's finding that Mr. Lang had not committed gross misconduct was supported by the record.

On first blush, this opinion seems to defy common sense. As the concurring opinion points out, "employers and managers of companies unquestionably have an interest in preventing drug use by their employees, as it affects not only the quality of their production but also the safety of their staff and potential consumers." However, as the concurring opinion also points out, "employers also enjoy the prerogative to clearly set forth terms that define the manner in which vacation can be used or retained and the consequences for violation of company policies."

Let this case serve as a cautionary tale -- don't leave policies open to interpretation by a court. If you want drug use, or some other reason, to disqualify an employee from receiving a vacation payout on termination, say so. Don't trust that judges will see things your way when you have to argue an ambiguity after the fact.