Employee fired for taking time off to undergo in vitro fertilization allowed to proceed with sex discrimination claim

Fertility is a very touchy subject. Most people assume that it is easy for a couple that wants to get pregnant to get pregnant. Unless you experienced a prolonged inability to conceive, and the fertility treatments that go along with it, it's difficult to understand the stress it causes. Part of that stress is caused by the time away from work. Fertility treatments, particularly in vitro fertilization (IVF) are both time consuming and time sensitive.

What happens when a woman undergoing IVF treatments needs time away from work for those treatments? If her company fires her because of her infertility (a gender-neutral condition), does she present a sex discrimination claim? In Hall v. Nalco Co. (7th Cir. 7/16/2008), the Court permitted a woman fired during her IVF treatments to proceed with her Title VII sex discrimination claim.

Hall worked as a sales secretary at Nalco. In March 2003, she requested a leave of absence to undergo IVF, which her supervisor, Mary Baldwin approved. The first IVF cycle failed, and on July 21 she filed for another leave of absence to begin August 18. Around the same time, Baldwin told Hall that their office was merging with another office, and that only the secretary from the other office would be retained. Baldwin told Hall her termination “was in [her] best interest due to [her] health condition.” Prior to informing Hall of her termination, Baldwin discussed the matter with a corporate employee relations manager, whose notes reflect that Hall had “missed a lot of work due to health,” and more specifically, in a section relating to Hall’s job performance, cite “absenteeism—infertility treatments.” Dwyer, the secretary who was retained, was a female employee who, coincidentally, had been incapable of becoming pregnant herself.

Hall alleged she was fired on account of being “a member of a protected class, female with a pregnancy related condition, infertility.” Without reaching the merits of Hall’s claim, the district court granted summary judgment for Nalco on the ground that infertile women are not a protected class under the PDA because infertility is a gender-neutral condition.

The 7th Circuit disagreed and reinstated Hall's claim. The Pregnancy Discrimination Act made clear that discrimination based on a woman’s pregnancy, or childbirth and medical conditions related to pregnancy or childbirth, is, on its face, discrimination because of her sex. The Court believed that the district court's reliance on infertility as a gender-neutral condition was misplaced given the facts of Hall's case.

Employees terminated for taking time off to undergo IVF—just like those terminated for taking time off to give birth or receive other pregnancy-related care—will always be women. This is necessarily so; IVF is one of several assisted reproductive technologies that involves a surgical impregnation procedure.... Thus, contrary to the district court’s conclusion, Hall was terminated not for the gender-neutral condition of infertility, but rather for the gender-specific quality of childbearing capacity.

Moreover, the Court was troubled by the timing of and circumstances surrounding Hall's termination:

Hall was fired shortly after a failed IVF procedure and just before she was scheduled to undergo a second attempt; her boss, Marv Baldwin, told her that the termination was “in [her] best interest due to [her] health condition.” In her notes documenting Hall’s termination, Jacqueline Bonin, Nalco’s employee-relations manager, wrote that Hall "missed a lot of work due to health,” and also noted in a section regarding Hall’s job performance, “absenteeism—infertility treatments.” This evidence is susceptible of both discriminatory and nondiscriminatory explanations; a jury will have to decide.

The lessons to take away from this case are several:

1. The court got it absolutely correct that infertility treatments fall under the PDA as actionable sex discrimination. To me, it does not pass the smell test for the employer to rely on the retention of Dwyer to argue that it does not discriminate on the basis of infertility. Dwyer had not missed work for IVF treatments, and there was a clear factual question as to whether Hall would have been terminated but for her time away from to try to start a family.
2. Sometimes, too much documentation is a bad thing. If you right it down, it will be used against you in a lawsuit. Kudos to the corporate employee relations manager for taking diligent notes, but I'm not sure it was in her company's best interest to fully document that it was terminating Hall because she had “missed a lot of work due to health” because of “absenteeism—infertility treatments.”
3. Family responsibility continues to be a hot issue in the courts, and it is becoming easier and easier for employees to get these types of cases to juries.

Ohioans to Protect Jobs and Fair Benefits vows to fight against Healthy Families Act

Ohioans to Protect Jobs and Fair Benefits, a coalition of businesses, organizations, and others  that oppose the Healthy Families Act, has formally launched its campaign to defeat the November ballot initiative. It calls the sick leave mandate a "job killer" for Ohio, and has just issued the following news release:

Opponents of the union-backed mandated sick leave proposal today announced formation of a campaign committee to defeat the proposal, labeling it “a job-killer” that threatens Ohio’s economy at a time when it is already reeling.

The committee, representing a broad coalition of individual employers, trade associations and businesses organizations, said it intends to educate voters about the devastating effects the proposed state mandate will have on individual employers, their workers and the Ohio economy.

“Few people in Ohio are against sick leave,” said John C. Mahaney, Jr., treasurer of Ohioans to Protect Jobs and Fair Benefits. “But Ohio’s struggling businesses – particularly our small businesses – can’t withstand provisions in this proposal that threaten pay, benefits and jobs.”

“To make things worse, the proposal also severely penalizes employers who already provide sick leave by imposing rules that will make it much more expensive to operate assembly lines and facilities like hospitals and nursing homes,“ Mahaney added.

Mahaney said the mandate will brand Ohio as a “job-killer” in the eyes of businesses nationwide at a time when the state is in desperate need of new jobs.

“This proposal will make Ohio the only state in the union with a mandated paid sick leave law,” he said. “It will significantly drive up the cost of doing business when we can least afford it, and it will kill our job-development efforts.”

The provision that worries employers who currently grant sick leave is one that allows employees to take sick leave without warning in one-hour increments or less. Mahaney said such a provision poses a serious threat to production stability at process-dependent employers like assembly line manufacturers and staffing-critical operations like hospitals, nursing homes and day-care facilities.

“Companies like Honda, Ford, General Motors, Chrysler, Whirlpool and others have long-standing agreements that provide employees with good pay and benefits in exchange for work arrangements that ensure a continued high level of production,” he said. “This proposal directly interferes with long-established employer-employee relationships and the production stability achieved over many years of working together.”

Employers of every size worry that the cost to implement the mandate would require them to make up the difference by taking money from other benefits such as health care, curtailing raises or even cutting jobs, Mahaney said.

Ohioans to Protect Jobs and Fair Benefits promised a vigorous grassroots campaign in all 88 Ohio counties to defeat the proposal in November.

Ohio is suffering through its worst economic period in 20 years. This issue will make us one of the most business-unfriendly states in the country. With our nation's economy at a crossroads, Ohio's working people simply cannot afford our state to be branded a "job-killer."

If you want to get involved in this grassroots campaign, if you want to know how your business or organization can sign up as a supporter of Ohioans to Protect Jobs and Fair Benefits, or if you simply want more information on the dangers that the Healthy Families Act presents to Ohio, please contact me:

Jon Hyman - jth@kjk.com - 216-736-7226

Duty to reasonably accommodate obvious disabilities

Brady v. Wal-Mart Stores (2nd Cir. 7/2/08) asks whether an employer can ignore an employee's obvious disability when making employment decisions about that employee.

Patrick Brady has cerebral palsy, which very obviously manifested itself in his mannerisms. One trial witness testified: "Just by looking at him, you could tell he had a disability."

He applied for a part-time job at his local Walmart in its pharmacy department. He very quickly observed that his boss, Yem Hung Chin, was unhappy with his performance. He testified that "she was kind of short with me. At trial, Chin testified that she thought that Brady was too slow and that he appeared to have difficulty matching customers' names with their prescriptions. She thought Brady's performance was "absolutely awful,"and she "wanted [him] away from [her] prescriptions." Brady testified that he never handed out the wrong prescription, was never unable to find a prescription in the bin, and never required assistance from Chin or any other co-worker to perform his job.

After his first week of work, Walmart transferred Brady to collect shopping carts in the parking lot. After learning that Brady was unhappy with his new position, the store manager transferred him again, this time to stock grocery shelves. Frustrated, Brady quit and sued Walmart for disability discrimination. The jury returned a substantial verdict in his favor.

One of the issues on appeal is whether an employer is obligated to provide a reasonable accommodation when it perceives the employee to be disabled, whether or not the employee has asked for an accommodation. The court held that "an employer has a duty reasonably to accommodate an employee’s disability if the disability is obvious—which is to say, if the employer knew or reasonably should have known that the employee was disabled:

Indeed, a situation in which an employer perceives an employee to be disabled but the employee does not so perceive himself presents an even stronger case for mitigating the requirement that the employee seek accommodation. In such situations, the disability is obviously known to the employer, while the employee, because he does not consider himself to be disabled, is in no position to ask for an accommodation. A requirement that such an employee ask for accommodation would be tantamount to nullifying the statutory mandate of accommodation for one entire class of disabled (as that term is used in the ADA) employees.

Thus, if an employer knows of should know that an employee is disabled, the employer has a duty to engage in an interactive process with that employee to assess whether the disability can be reasonably accommodated.

For employers, the lesson is that one cannot turn a blind eye to an employee's obvious disability. Next week, we'll take a deeper look at the interactive process: what it means, how it is supposed to be carried out, and the risks inherent in ignoring it.

Dads get FMLA leave too

Even though new dads have the same FMLA rights as new moms, technically I'm not on FMLA leave. I'll be in and out of the office over the next several weeks as we get acclimated to our new family member. New parents don't qualify for intermittent leave:

(a) Intermittent leave is FMLA leave taken in separate blocks of time due to a single qualifying reason. A reduced leave schedule is a leave schedule that reduces an employee's usual number of working hours per workweek, or hours per workday. A reduced leave schedule is a change in the employee's schedule for a period of time, normally from full-time to part-time.

(b) When leave is taken after the birth or placement of a child for adoption or foster care, an employee may take leave intermittently or on a reduced leave schedule only if the employer agrees. Such a schedule reduction might occur, for example, where an employee, with the employer's agreement, works part-time after the birth of a child, or takes leave in several segments. The employer's agreement is not required, however, for leave during which the mother has a serious health condition in connection with the birth of her child or if the newborn child has a serious health condition.

Donovan Joseph Hyman was born at 12:42 yesterday, 7 pounds, 6 ounces, and 18.25 inches. And, not that I'm biased, but he's the best looking baby in the nursery.

WIRTW #39

Starting Monday, my posting may become more sporadic than I'd like, as my wife is going into the hospital to have our second child. I'll be taking care of my family responsibilities for a couple of weeks before I return to the office full time. I hope to do my best to keep posting, but it's all dependent on sleep patterns and how cooperative my normally very cooperative two-year-old wants to be. So bear with me, and I'll be back to regular postings later this month.

In the meantime, enjoy this week's best posts from other blogs.

The Delaware Employment Law Blog is taking everyone to HR Summer School by posting a series of "Back-to-Basics" articles on the 3 toughest employment laws - the ADA, the FMLA, and the FLSA. This week's lesson - What Does the ADA Require?

The Connecticut Employment Law Blog touches on a topic that I've covered before, that the presence of absence of fair treatment has a lot to do with whether an employee will sue you. For my thoughts on this issue, take a look at The Golden Rule of Employment Relations.

The Workplace Privacy Counsel lets us know about Sidell v. Structured Settlement Investments, recently filed in Connecticut, which will decide the limits on an employer's access, using its own computer equipment, to an employee's e-mail stored in an employee's personal e-mail account.

Case in point, the ABA Journal brings us the story of Philadelphia television news anchor Larry Mendte, fired for installing key stroke monitoring software on a station computer, which enabled him to access the private email account of his co-anchor, Alycia Lane. Philly.com has tons more on this bizarre story, including Lane's e-mailing of bikini photos of herself to NFL Network anchor Rich Eisen, who is married, her subsequent termination for allegedly assaulting a New York City cop, and the wrongful discharge lawsuit she has filed.

Electronic Discovery Navigator predicts that the added mobile technology made necessary by telecommuting will present an electronic discovery nightmare.

The Workplace Prof Blog lists 5 lifestyle choices that could cost an employee his or her job.

A lesson in union avoidance

No company does more to avoid unions than Walmart. Case in point - Wal-Mart Stores Inc. (NLRB 6/20/08). In the summer of 2000, Walmart's Kingman, Arizona, Tire and Lube Express (TLE) employees contacted United Food and Commercial Workers. The Union filed a representation petition on August 28. Two days later, a labor relations team from Walmart's corporate headquarters arrived at the store. During the organizing campaign, members of that labor relations team did such things as: threaten to postpone any merit pay increases for the TLE employees during any contract negotiations; engage in surveillance of employees' union activities; grant benefits and improved working conditions to discourage employees from supporting the Union; discriminatorily and disparately apply and enforce its no-harassment policies to the detriment of employees who supported the Union; and discharge and deny COBRA coverage to employees for supporting the Union.

It is not much of a surprise that the NLRB found that Walmart engaged in unfair labor practices. The point, however, is not whether Walmart violated the NLRA, but in how Walmart handled the litigation. The organizing campaign started in August 2000. The NLRB issued its final decision and remedial order nearly 8 years later. And that timeline does not include any appeals to federal court, which will add at least another 12 - 18 months. Does anyone doubt for a second that Walmart's strategy is to drag this process out as long as possible, making it as costly, difficult, and time consuming for the union and its members? Does anyone want to wage a bet on how long it will take Walmart to actually sit down and bargain with this union? By the time Walmart has exhausted all of its appeals on every claim the Union could possibly bring, will any of the original LTE employees be left at the store? If not, how can the Union say a majority of the bargaining unit even wants a union? The de-certification petition will surely follow.

The lesson from this case is that a successful organizing campaign is not necessarily the end game for a unionized workforce. The laws might be tilted towards the unions, but for companies that have the resources and the patience, the process can be used to their advantage to ultimately break the union.

Ohio Supreme Court takes a stand against liability for bullying (sort of)

Fontella Harper and Beverly Kaisk were neighbors in a public housing project. Apparently, Kaisk had problems living next door to an African American family, and let them know about it, frequently and offensively. Harper complained to building management, who took no corrective action. Kaisk's lease included a provision requiring tenants to conduct themselves in a manner that "will not disturb the neighbors' peaceful enjoyment of their accommodations," and the landlord could have terminated the lease "for serious or repeated violations of material terms of the lease."

Harper sued the landlord for housing discrimination based its failure to take corrective action of the racial harassment. Yesterday, in Ohio Civil Rights Commission v. Akron Metropolitan Housing Auth., the Ohio Supreme Court held that a landlord is not liable for failing to take corrective action against a tenant whose racial harassment of another tenant created a hostile housing environment.

You might be asking, what does a housing discrimination case have to do with employment law? The plaintiff argued that a landlord should be liable for a hostile environment on the same basis that an employer can be held liable. The Court disagreed:

[I]mposing liability on an employer who knew or should have known about coworker harassment was an application of negligence liability....This liability of an employer for an employee's negligence derives from the established principles of agency law.... None of those factors apply to the liability of a landlord for the actions of a tenant. The agency principles that govern employer-employee liability have no parallel in the context of landlord-tenant disputes....

The amount of control that a landlord exercises over his tenant is not comparable to that which an employer exercises over his employee. As the appellants observe, a landlord does enjoy a measure of control through his ability to evict tenants. In the present case, the lease signed by Kaisk gives the AMHA authority to evict a tenant who disturbs other tenants' "peaceful enjoyment of their accommodations." The power of eviction alone, however, is insufficient to hold a landlord liable for his tenant's tortious actions against another tenant.... We therefore reject the argument that our precedent in the employment context applies to the cause of action at issue here.

It's not earth-shattering news that agency principles hold employers liable for discriminatory (e.g., sexual, racial, etc.) harassment of one co-worker by another. This case, however, also speaks to the Court's unwillingness to extend harassment liability beyond the current parameters of the law. The Court could have reasoned a duty to correct from the power to evict, and from that duty fashioned a remedy for the harassed tenant. The Court, though, expressly rejected that argument.

For those who hold out hope that Ohio courts might recognize a general cause of action for workplace bullying, this opinion is a strong signal that our state's highest court would reject such an attempt.

Medical questions during job interview doom employer in discrimination case

Doe v. Salvation Army, decided last week by the 6th Circuit, provides employers with a valuable lesson on the dangers of asking the wrong question during a job interview.

Doe (whose proceeded pseudonymously to protect his confidentiality) had a history of paranoid schizophrenia. During a job interview with the Salvation Army, Doe was told of the requirements for the job, including the expected work days. Doe advised that he could not work on Fridays because, "[he] had to see [his] doctor, and . . . pick up [his] medicine." Doe claims that the interviewer asked him in response, "what kind of medication," to which Doe responded "psychotropic medicine." Doe claims the interviewer then ended the meeting and Doe was ultimately rejected for the job.

The Salvation Army argued, and the district court agreed, that Doe was rejected for safety concerns, not for reasons solely based on his disability. The 6th Circuit, however, found there to be a genuine issue of material fact as to whether the decision not to hire Doe was based solely on his disability:

It was immediately after Doe revealed his specific medications that Snider abruptly ended the interview. Snider testified that he ended the interview stating, "I did not say flat out no," but rather, "I'll have to check [the insurance] out." As we now know, he did not do so.

An employer may not base a hiring decision on a perceived notion that the applicant’s disability renders him incapable to perform the job. The district court stated that "[c]ourts have unanimously held that an individual with a disability 'cannot perform the essential functions of a job if his handicap poses a significant risk to those around him.'" But in May 2005, Snider ended Doe's interview not because he concluded that Doe's employment as a driver would pose a risk to others, but because Snider "wasn't going to take a chance" on Doe.

The Salvation Army got in trouble because it sought the wrong information in the wrong way. The employer provided legitimate information - the required work hours - an essential function of the job. Unprompted, Doe then voluntarily disclosed medical information. At that point, the interviewer should have simply confirmed that Doe could not meet that particular essential requirement and moved on to a different topic. At that point the company could have rejected Doe based on his inability to work the required hours, a decision that would not have been tainted by the inappropriate follow-up question, "What kind of medicine?"

6th Circuit decides standard of proof for mixed motive cases

Disparate treatment claims under Title VII are categorized as either single-motive claims (where only an illegitimate reason motivated the employment decision), or mixed-motive claims (where both legitimate and illegitimate reasons motivated the decision). Mixed-motive claims are specifically covered in 42 U.S.C. 2000e-2(m): "An unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice."
In Desert Palace v. Costa, the U.S. Supreme Court found that a plaintiff may prove a Title VII mixed-motive case by either direct or circumstantial evidence, and held that to obtain a mixed-motive jury instruction, "a plaintiff need only present sufficient evidence for a reasonable jury to conclude, by a preponderance of the evidence, that ‘'race, color, religion, sex, or national origin was a motivating factor for any employment practice.'" The opinion left open the issue of whether the McDonnell Douglas burden-shifting framework should apply to a summary judgment analysis of mixed-motive discrimination claims based on circumstantial evidence as it applies to single-motive discrimination claims based on indirect evidence.
Since Desert Palace, the 6th Circuit has been silent on the issue of the proper evidentiary framework to apply to mixed-motive cases at the summary judgment stage. Some circuits have expressly applied the McDonnell Douglas analysis, some have applied a modified McDonnell Douglas approach, under with a plaintiff can rebut the employer's legitimate non-discriminatory reason either with evidence of pretext or evidence of the mixed motive.Yet another approach is to permit the plaintiff to rebut the employer's legitimate non-discriminatory reason with evidence that a discriminatory reason more likely than not motivated the decision.
In White v. Baxter Healthcare Corp., decided last week, the 6th Circuit finally weighed in on this issue:

The McDonnell Douglas / Burdine burden-shifting framework does not apply to the summary judgment analysis of Title VII mixed-motive claims. We likewise hold that to survive a defendant’s motion for summary judgment, a Title VII plaintiff asserting a mixed-motive claim need only produce evidence sufficient to convince a jury that: (1) the defendant took an adverse employment action against the plaintiff; and (2) "race, color, religion, sex, or national origin was a motivating factor" for the defendant’s adverse employment action.... This burden of producing some evidence in support of a mixed-motive claim is not onerous and should preclude sending the case to the jury only where the record is devoid of evidence that could reasonably be construed to support the plaintiff’s claim.

The Court, however, did not totally dismiss any applicability of McDonnell Douglas to mixed-motive cases:

Although the employee need not establish a McDonnell Douglas prima facie case to defeat a motion for summary judgment on a mixed-motive claim, setting forth a prima facie case of discrimination under McDonnell Douglas can aid the employee in showing that an illegitimate reason motivated the adverse employment decision. [Likewise, in] assessing whether an employee has demonstrated that an illegitimate reason was a motivating factor in the employer’s adverse decision, the court should also consider evidence presented by the employer that the protected characteristic was not a motivating factor for its employment decision. (quoting Wright v. Murray Guard, Inc., 455 F.3d 702, 720 (6th Cir. 2006) (Moore, J., concurring)).

Thus, to survive summary judgment in a mixed-motive case, the plaintiff need only show:

1. an adverse action, and
2. some evidence that the protected class was a motivating factor for that adverse action.

This burden is low, and will likely make it much easier for plaintiffs in the 6th Circuit (and most likely Ohio state courts, which follow 6th Circuit precedent) to defeat summary judgment in a mixed-motive case. It will also create an incentive for employees to frame their cases as mixed-motive cases, because these cases will be more likely to go to a jury under this standard than single-motive cases under the traditional McDonnell Douglas standard.

46.6 million reasons to think about settlement

In the largest verdict Ohio history, and what might be the largest single-plaintiff employment verdict ever, a Cuyahoga County jury has awarded $46.6 million to Ronald Luri against garbage hauler Republic Services. Cleveland.com reports that Luri was fired after he refused to fire three employees in their 60s. The jurors reported that they were outraged by Republic's conduct after it fired Luri: "The jurors said the key piece of evidence was an email penned by Luri's boss, Jim Bowen, the Ohio area president. Attorneys Shannon Polk and Richard Haber presented a computer expert who found that Bowen had post-dated the memo and added two paragraphs critical of Luri's job performance two weeks after Luri filed the lawsuit."

There are many lessons to be learned from this story, but none more important than this - companies need to be aware of the risks that are inherent any time they step into the courtroom in an employment case. In Ohio, only 6 out of the 8 jurors must agree on the verdict. Of the 8 total jurors, it is a sure bet that at least 6 will more naturally identify with the employee than the employer, which means that the company is usually playing from behind.

Secondly, as far as employers are concerned, an employee's performance history must be frozen in time as of that employee's termination date. Nothing will anger a jury more than a company that looks like it is trying to cover its actions, either by destroying damaging documents or creating helpful ones. The shenanigans the jury found to have taken place after Mr. Luri was fired was a significant factor in the verdict, and if his personnel file was frozen on his termination date, I predict that the verdict would have looked much different.

Unsurprisingly, it is reported that Republic will likely appeal the verdict. Regardless of how much of the $46 million holds up, employers should use this information as a wake up call. Litigation is dangerous. Juries are unpredictable. Some cases cannot be resolved and need to be tried, but sometimes it's better to live to fight another day.

What I'm reading this week #38

I'm here a day early with this week's best from the blogosphere, starting with 2 posts from the New York Times' Shifting Careers series: Blogging About Layoffs, the Legal Implications, and Can Ex-Bosses Object When Ex-Employees Start Businesses?

The FLSA Blog has an interesting post on crisis planning for class action lawsuits.

The Delaware Employment Law Blog writes on a topic of the utmost importance to everyone this time of year - the office thermostat.

The Connecticut Employment Law Blog, meanwhile, reminds everyone of the important distinctions between hostile work environment and quid pro quo sex harassment claims.

The Pennsylvania Labor & Employment Blog opines that the Supreme Court's D.C. gun ban decision should have little impact on employers.

Finally, the Laconic Law Blog points everyone to the new I-9 form that employers must use beginning July 1. The only difference is its effective date; otherwise the form is unchanged.

Everyone have a fun and safe July 4th weekend, and I'll see everyone back on Monday.

More on compensation for meal periods

Yesterday, a Minnesota judge ruled that Wal-Mart violated state wage and hour laws by failing to provide meal and rest periods to more than 56,000 of its employees. The judge found evidence of more than 2 million separate violations, and awarded the class of employees $6.5 million in back wages. The judge will hold a second hearing on possible penalties, which could exceed $2 billion.

In light of this news, now is as good a time as any to revisit my post from a couple of weeks ago on whether employees' meal periods counted as "hours worked" under the FLSA:

A bona fide meal period, however, is not considered hours worked. To be a bona fide meal period the employee must be totally relieved of his or her work duties. According to the Department of Labor: "The employee is not relieved if he is required to perform any duties, whether active or inactive, while eating."

So, what does it mean to be "totally relieved of one's work duties?" The 6th Circuit falls in line with most of the federal courts in applying the "predominant benefit" test to determine whether an employee's meal period is compensable. Under this test, first applied by the 6th Circuit in Myracle v. Gen. Elec. Co., the employee bears the burden to prove that the normally non-compensable meal period should be compensable because it is spent predominantly for the employer's benefit. The key inquiry is whether the employee engaged in the performance of any substantial duties during the lunch break. As long as the employee can pursue his or her mealtime adequately and comfortably, is not engaged in the performance of any substantial duties, and does not spend time predominantly for the employer's benefit, the employee is not entitled to compensation under the FLSA for a lunch break. Thus, for example, it may not matter if an employee is "on call" during a meal break, unless the employee's meal is actually disturbed.

As most employment law issues, it is best to set out expectations about meal breaks in a clear policy. For example: "Each employee is entitled to a 30-minute lunch break each day. That lunch break is unpaid. Because it is unpaid, it is the employee's time to spend as he or she sees fit. Employees should expect to enjoy their lunch breaks without interruption by a co-worker, supervisor, or manager, except in the event of a emergency that requires an employee to cut his or her lunch break short. No employee is permitted to work through a lunch break without the prior approval of his or her immediate supervisor." Of course, such a policy is only as good as how it is enforced.

Did you know that FMLA policies are mandatory?

Did you know that if you are covered by the FMLA and have an employee handbook, the FMLA's regulations require that handbook to contain an FLMA policy?

If an FMLA-covered employer has any eligible employees and has any written guidance to employees concerning employee benefits or leave rights, such as in an employee handbook, information concerning FMLA entitlements and employee obligations under the FMLA must be included in the handbook or other document. For example, if an employer provides an employee handbook to all employees that describes the employer's policies regarding leave, wages, attendance, and similar matters, the handbook must incorporate information on FMLA rights and responsibilities and the employer's policies regarding the FMLA.

An annual review of an employee handbook or other policy manual is always a good idea. Laws are constantly in flux. New laws are passed (for example, Ohio's workplace smoking ban in 2006) that may require new guidance for employees. Courts issue decisions that may make old policies either obsolete or downright illegal. The only way to make sure that a handbook is up to date is to actually take a close look at it as often as every year.

The bottom line - if you have 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year, and your handbook at all deals with employee benefits or leave rights (as most do), take a look at the handbook and make sure it has an FMLA policy.

Do wage and hour laws apply to independent contractors?

Every once in a while I'll answer a question that comes from my readers. Sometimes a question comes by email. Other times (to break down the 4th wall) they come from a search someone ran to find the blog.

Last week, someone asked, "Do minimum wage laws apply to 1099 independent contractors?" The answer is no. The FLSA (and Ohio's parallel wage and hour laws) only apply to employees.

But, companies should tread very carefully before classifying a worker as an independent contractor. Among the factors that the Department of Labor will examine in determining whether one is an employee or a contractor are:

1. The extent to which the services rendered are an integral part of the principal's business.
2. The permanency of the relationship.
3. The amount of the alleged contractor's investment in facilities and equipment.
4. The nature and degree of control by the principal.
5. The alleged contractor's opportunities for profit and loss.
6. The amount of initiative, judgment, or foresight in open market competition with others required for the success of the claimed independent contractor.
7. The degree of independent business organization and operation.

If a company errs by misclassifying an employee as a contractor, it would be liable for back wages (up to the minimum wage if the hourly rate is less) and unpaid overtime for two years, or even three years if employer was trying to willfully avoid the FLSA.

In other words, I would think long and hard before paying a worker like a contractor, and would not do so without some input from an employment lawyer and a written agreement setting forth the terms of the relationship.

To whoever typed that search into Google, thanks for the question. If anyone has any topics they'd like to see covered, email me and I'll do my best to accommodate.

House overwhelmingly votes in favor of ADA Amendments Act of 2008

By a margin of 402-17, the House yesterday voted in favor of the ADA Amendments Act of 2008. The New York Times is reporting that the Senate is expected to take similar action soon, but that President Bush is concerned that "it 'could unduly expand' coverage and significantly increase litigation."

The highlights of the bill (the full text of which is available here) are several. It 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, however, 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. For example, a diabetic who has the condition under control with insulin might not meet the definition of "disability." These amendments expressly reverse that ruling:

• An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.
• 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, such as medications, equipment, assistive technology, auxiliary devices, learned behavioral, or adaptive neurological modifications.
• Eyeglasses or contact lenses, however, can still be considered in determining whether an impairment substantially limits a major life activity.

All in all, the goal of this legislation is to be lauded: "To carry out the ADA's objectives of providing 'a clear and comprehensive national mandate for the elimination of discrimination' and 'clear, strong, consistent, enforceable standards addressing discrimination' by reinstating a broad scope of protection to be available under the ADA." These amendments may not necessarily increase litigation, but they will certainly make it more difficult for employers to get ADA cases dismissed on summary judgment.

Delay in reporting harassment dooms employee's claim

Federal Express terminated the employment of Deborah Thornton after she failed to return to work from a 16-month leave of absence taken because of alleged stress stemming from sexual harassment by her immediate supervisor, David Bragorgos. She did not report the retaliation to FedEx until two months after her leave of absence began, claiming that she feared retaliation from Bragorgos and others if she reported it. In Thornton v. Federal Express, decided early this week, the 6th Circuit rejected that argument and upheld summary judgment entered in the employer's favor.

An employee’s subjective fears of confrontation, unpleasantness or retaliation do not alleviate the employee’s duty under Ellerth to alert the employer to the allegedly hostile environment.

In other words, employees have an affirmative obligation to report harassment. In return, the employer has an affirmative to ensure that the employee can do so free from retaliation. The employee is not excused from her responsibilities out of a fear that the employer will not live up to its end of the bargain.

Is the FLSA anachronistic?

Earlier this week I wrote about whether employees are entitled to overtime pay for reading emails. Michael Moore (the author of the Pennsylvania Labor & Employment Blog, not the director of Roger & Me) posted a comment to my post that is so wonderful that I'm reprinting it to make sure that all of my readers see it:

The only area immune from technology is the FLSA which is stuck in the year 1938, when it was enacted. Incidentally, this is the same year that the ball point pen was invented by the Argentine-Hungarian journalist László Bíró. I wonder if the DOL sat around in 1938 wondering if employees who wrote themselves work-related “To Do” list at home might actually be engaged in compensable work time activities entitling them to overtime?... or if the invention of the ball point pen (as opposed to the clunky fountain pen) would have so dramatically reduced these efforts that it would make the time de minimis?

Michael is dead on. As our employment laws move forward, the FLSA remains stuck in the past. The FLSA was enacted in 1938 to the curb worker exploitation, boost job creation, and bring the country out of the Great Depression. Last year, I asked if the 40-hour work week is still relevant in the modern world.  Michael's comment really drives home the point that a law enacted to address workplace conditions that existed during the Depression may need to be seriously reworked to address the realities of the modern workplace.

Protected activity does not protect theft of confidential information

Let's suppose an employee opts-in to a class action lawsuit against your company. Let's also suppose after she opts-in to the class action, she believes that her supervisor begins retaliating against her by treating her poorly. As part of discovery in the class action, she provides documents to her attorneys. Those documents not only include documents that might relate to the class action and potential retaliation claim, but also confidential customer files that she believes will jog her memory about specific instances of retaliation. The employer has a Privacy Policy, a Code of Conduct, and a Conflict of Interest Policy, all of which expressly prohibit the disclosure of confidential information, including customer information. When the employer learns of the delivery of the confidential customer files, it terminates her for violating company policy.

Does the delivery of the confidential files constitute protected activity for which the employee cannot be terminated? According to the 6th Circuit in Niswander v. Cincinnati Insurance, decided yesterday, the answer is it depends, but in this case no.

First, the Court analyze the dissemination for whether it constituted "participation" in protected activity. Because the confidential documents were not relevant to her claim, the Court concluded it did not:

This is not a case of an employee mistakenly or inadvertently delivering confidential information out of a belief that the documents provided direct proof of discrimination. Instead, Niswander delivered numerous documents, some of which were copies of e-mails from her supervisors related to her job performance, but some of which were claim-file documents that included confidential personal information of insured individuals....

Our analysis would be different if the documents that Niswander had given to her lawyers, and that they in turn produced to CIC, had reasonably supported her claim of gender-based pay discrimination—or if she reasonably believed that they did.

[C]oncluding that Niswander’s conduct here is protected participation ... would provide employees with near-immunity for their actions in connection with antidiscrimination lawsuits, protecting them from disciplinary action even when they knowingly provide irrelevant, confidential information solely to jog their memory regarding instances of alleged retaliation.

The Court also analyzed whether the dissemination qualified as "opposition" to an unlawful employment practice. The Court laid out 6 factors critical to its determination as to whether the dissemination of the documents was "reasonable" and therefore worthy of protection:

1. How the documents were obtained.
2. To whom the documents were produced.
3. The content of the documents.
4. Why the documents were produced, including whether the production was in direct response to a discovery request.
5. The scope of the employer’s privacy policy.
6. The ability of the employee to preserve the evidence in a manner that does not violate the employer’s privacy policy.

The Court found that the factors generally weighed against Niswander:

Although employees deserve protection when they make reasonable attempts to preserve evidence of illegal employment practices, including discrimination and retaliation, “we are loathe [sic] to provide employees an incentive to rifle through confidential files looking for evidence that might come in handy in later litigation.” To hold in favor of Niswander would turn the opposition clause into “a license to flaunt [sic] company rules or an invitation to dishonest behavior.” (quoting O’Day v. McDonnell Douglas Helicopter Co. (9th Cir. 1996)).

This case underscores the importance for employers to have clearly written confidentiality and other policies to govern employee ethics. The disclosure of confidential materials could very well be transformed into protected activity if the employer does not take active steps to protect the documents' confidentiality.

Moreover, businesses must also act swiftly and decisively when discovering a breach of confidentiality by any employee. Separate from being smart business, consistent enforcement diffuses any claim by an employee like Niswander of pretext - that she was treated differently than employees who breached policy but who had not filed a lawsuit.

What would President Obama look like to employers?

Yesterday, Senator Barack Obama gave some insight into employment policy in his administration. RealClearPolitics has his words from a speech given in Albuquerque. The highlights:

• He will push for the passage of the Lilly Ledbetter Fair Pay Restoration Act, which will overturn Ledbetter v. Goodyear Tire & Rubber. Recall that Ledbetter held that the statute of limitations for a pay discrimination claim under Title VII begins to run when the pay-setting decision is made, and not when the employee learns of the discrimination. The Ledbetter Fair Pay Act would start the statute of limitations when the employee learns of the pay discrimination. In my view, this law would create a floating statute of limitations for pay discrimination claims, which severely undermines the important aspect of certainty that statutes of limitations provide for businesses.

• To assist working parents, he would expand the Child and Dependent Care tax credit to 50%.

• He would expand the FMLA to cover employers as small as 25 employees, to permit leave for the care of elderly parents, to allow parents 24 hours of annual leave to join school activities with their kids, and to cover employees who are victims of domestic violence or sexual assault.

• Finally, he would require employers to provide all workers with seven paid sick days a year.

It's clear from Senator Obama's words that family responsibility will be a driving force in his administration:

As the son of a single mother, I also don't accept an America that makes women choose between their kids and their careers. It's not acceptable that women are denied jobs or promotions because they've got kids at home. It's not acceptable that forty percent of working women don't have a single paid sick day. That's wrong for working parents, it's wrong for America's children, and it's not who we are as a country.

It's hard to argue against greater family leave benefits on a national scale (The Ohio Healthy Families Act is an entirely different story). As I've said before, this country lags behind most of the civilized world, and even some of the third world, in family leave benefits. Until we solve this problem legislatively, aggressive plaintiffs will continue to push for judicial solutions - such as the $2.1 million verdict against Kohl's Department Stores in Cuyahoga County last year.

Overtime pay for reading emails

More than a year ago I asked the question, "Is time spent outside the office e-mailing from a Blackberry compensable under the Fair Labor Standards Act?" According to yesterday's New York Times, writers for ABC News are asking the same question.

BlackBerrys blur the lines between work and play. A recent dispute at ABC News asked: at what point does checking e-mail after hours constitute working overtime?

Several weeks ago, ABC’s news division presented three new writers with a waiver stating that they would not be compensated for checking their company-issued BlackBerrys after office hours. The waiver prompted some concern, leading ABC to take the BlackBerrys away from the three writers the week of June 9.

Before deciding whether time spent checking emails off-hours is compensable, several questions must be answered:

1. How much time is spent? The FLSA permits employers to disregard and not pay employees for off-hours de minimis time. Time is considered de minimis if it is insubstantial or insignificant, cannot as a practical administrative matter be precisely recorded for payroll purposes, is no more than a few minutes in duration, and where the failure to count such time is justified by industrial realities.
2. Is the employee checking emails of his or her choice, or is the employee essentially expected to be on-call 24/7?
3. Does the employer require the employee to carry a PDA or Blackberry, or does the employee choose to do so as a matter of personal convenience?

The safest course of action for employers is to provide PDAs only to exempt employees. But, if companies are going to provide PDAs to non-exempt employees, they should have a policy in place stating that employees who check emails off-the-clock do so of their own choice, and that the time spent will not be compensated. Of course, such a policy is not foolproof, and businesses who make it possible for employees to remain connected off-duty will have to take the risk that the time might count as hours worked.

My take is that most emailing should meet the test for de minimis time. Checking an email takes at most only a few moments, and it would create an administrative nightmare for companies to have to track this time for pay purposes. While I am not aware of any cases discussing this issue, it is only a matter of time before we get some judicial guidance for companies that provide PDAs to non-exempt workers. In the meantime, this debate remains academic, albeit with significant real-world implications.

Two new ways to search the blogosphere go live

It's easy to get lost in the blogosphere. There are thousands of lawyers publishing blogs, and new blawgs launch everyday, each elbowing each other for room in an increasingly more crowded market.

Two services have recently launched to help keep it all straight. LexMonitor strives to be a comprehensive database of every blawg. It's organized by category, author, and tags, and is updated as frequently as blogs update their feeds. It touts itself as "a free daily review of law blogs and journals highlighting prominent legal discussion and the lawyers and other professionals participating in this conversation." It launched last Friday, and on my initial review over the weekend, I have to say I'm impressed so far, in its organization, scope, and what it hopes to achieve.

Law.alltop.com has been around a little longer. It thinks of itself as the “digital magazine rack” of the Internet. It imports the last five posts from the blogs it lists. It is not trying to catalogue every piece of information out there, but to provide a representative sample of the best of the blogosphere.

Because alltop.com is more selective in its listings than LexMonitor, it may be a less intimidating starting point for those starting out searching legal blogs. LexMonitor, however, is an ambitious project, and has real potential to become the portal for those searching for up to the minute legal information.

Because I'm listed on both services, I'm happy to plug them both. It's because I think that they each offer something of real value that I'm also happy to recommend them.

Court limits employers' access to employee text-messages

It is generally understood that employers have the right to read employees' emails sent and received through the corporate email system. The system is owned and operated by the employer, and employees should have no expectation that such communications are private.

What about electronic communications that are not stored on an employer's server - for example, text messages from mobile devices? Can an employer legitimately intercept those communications without the employee's consent? According to the 9th Circuit in Quon v. Arch Wireless, the answer might be no. For those who want more information, Workplace Privacy Counsel has the details.

The bottom line for companies is that Internet Service Providers, text messages services, and online email services (such as Yahoo or Gmail) are prohibited from disclosing stored messages without the consent of the sender or the recipient. This ruling, however, should not affect an employer's ability to control its own property, such as cell phones or computers that it owns and provides to employees to use. The key is for companies to have clearly written electronic communications policies that spell out the expectations, and make it clear to employees that they have no expectation of privacy in the use of any corporate-issued equipment.

What I'm reading this week #36

We'll start this week's review with a couple of posts on firing employees. The Business of Management asks - is there ever a good time to fire someone? Meanwhile, The HR Capitalist gives us some tips on what to say to an employee after you make the termination decision.

Workplace Horizons gives us another update on the revamped ADA Restoration Act, and reports that a compromise is closer to being worked out.

The Word on Employment Law reminds us that fairness definitely matters when dealing with employees.

The Delaware Employment Law Blog (with a spiffy new design) talks about respectful workplace policies.

Finally, the Pennsylvania Labor & Employment Blog, as part of its series on resources for HR generalists, advises that it's a good idea to pay employees' final paychecks on time to avoid legal trouble.

Employers go 2 out of 4 at the Supreme Court today

The Supreme Court this morning released a quartet of opinions that impact employers. Continuing this Court's somewhat surprising trend, the employer came out on the winning end of only half of these cases.

In MetLife v. Glenn, the Court ruled that the fact that a claim administrator of an ERISA plan also funds the plan benefits is a "conflict of interest" that must be weighed in a judicial review of the administrator's benefit determination. I have always been troubled by benefit plans that both pay benefits and make the decision whether to pay. To the extent that such plans will no longer have the protection of the arbitrary and capricious standard upon judicial review of their decisions, I applaud the Court's decision.

In Kentucky Retirement Systems v. EEOC, the Court ruled that a benefit plan's use of age as a potential factor in the distribution of retirement benefits to disabled workers does not establish a prima facie case of age discrimination. For the background on this case, see Supreme Court considers use of age as factor in disability retirement benefits. I think the Court got it partially right. It seems to me that retirement eligibility is a proxy for age, but the employer in this case did not use the factor arbitrarily or discriminatorily.

In Meacham v. Knolls Atomic Power Laboratory, the Court ruled that when an employee alleges disparate impact under the ADEA, the employer bears the burden of persuasion on the "reasonable factors other than age" defense. Again, I think the Court got this right. If the employer is raising the defense, the employer should have the burden of proving it.

Finally, in Chamber of Commerce v. Brown, the Court ruled that federal labor law prohibits state from regulating or limiting an employer's right to speak out about labor union organizing by their employees.

[Hat-tip: SCOTUSblog]

Giving "high in the sky" a whole new meaning

There are certain thinks you just don't want to think about while your sitting at the gate waiting to board a flight. One of them is the pilot in the bathroom of the 737 you are about to board doing a few lines of coke. This morning, in Gabbard v. FAA, the 6th Circuit made the friendly skies a little bit safer by affirming an arbitrator's decision that had approved the FAA's revocation of a pilot's license after he had failed a drug test.

The take-away from this case has nothing to do with airlines, drug tests, or arbitrations. Instead, this case serves as another reminder that employees can sue for any reason at any time. Gabbard could not possibly have thought he was going to have his license reinstated, especially after an arbitrator had ruled against him. Yet, he had no shame in parading his shameful conduct before the second highest court in the land. Even the most rock solid termination can end in a lawsuit. That risk, however, should not hamstring employers from taking necessary actions to rid their workplaces of bad employees, especially when good cause exists.

Clearing up some wage and hour misconceptions

The Fair Labor Standards Act has two basic requirements for non-exempt employees 18 years old and over: the payment of a minimum wage (which is currently $7 an hour in Ohio), and the payment of one and one-half times the regular rate of pay for any hours worked in excess of 40 in any work week. What's missing from this list are typical payroll practices such as vacation, holiday, severance, or sick pay; meal or rest periods; premium pay for weekend, holiday, or off-shift work; pay raises or benefits; the payment of final wages to terminated employees; and pay stubs or W-2s.
Some of these payroll practices have no provision whatsoever in any federal or state law. For example, no law requires the payment of vacation, holiday, severance, or sick pay, premium pay (except for the over-40 requirements of the FLSA), pay raises, or benefits (although ERISA regulates the latter if benefits are provided). Of course, many of these are typical in virtually all businesses. Good luck hiring or retaining any decent employees if you don't offer paid holidays and annual raises, for example.
Ohio law regulates the handling of employees final paychecks. In Ohio, paychecks must be provided no less often than semi-monthly, which means that a severed employee must be paid no later than either the 15th or the last day of the month, depending on whether the employee's last day of employment falls within the 1st half of 2nd half of the month.
The Internal Revenue Code governs the handling of W-2s. Suffice it to say that if you are paying an employee any wages during the year, you must provide that employee with a W-2, and make all the applicable withholdings on that employee's behalf.
Meal and rest periods are not required by any law. Neither federal law or Ohio law requires employers to provided employees with any breaks during the work day. Federal law, however, does provide for whether meal and rest breaks are counted as "hours worked." This distinction is important. If time is counted as "hours worked," it goes into the calculation of time worked during the work week for consideration of whether the employee has crossed the 40-hour threshold for overtime pay.
Rest periods, which are considered breaks of 20 minutes or less, are counted as hours worked whether or not the break is paid. Rest breaks are customarily paid, and if they must be counted as work hours, they might as well be paid for.
A bona fide meal period, however, is not considered hours worked. To be a bona fide meal period the employee must be totally relieved of his or her work duties. According to the Department of Labor: "The employee is not relieved if he is required to perform any duties, whether active or inactive, while eating."
Next week, we'll delve into the mistakes employers make in the handing of rest and meal periods, which has led to a lot of wage and hour class action litigation and some huge judgments against unwary employers.

Color-blind employment practices

The Word on Employment Law has an interesting post this morning about the effect of color on the Presidential election. Note that I said color, and not race. Under Title VII (and Ohio's parallel employment discrimination statute) it is illegal to make an employment decision because of "color." How, exactly, is color different than race?

The EEOC gives us some guidance in its Compliance Manual on Race and Color Discrimination. "Color" means:

pigmentation, complexion, or skin shade or tone. Thus, color discrimination occurs when a person is discriminated against based on the lightness, darkness, or other color characteristic of the person. Even though race and color clearly overlap, they are not synonymous. Thus, color discrimination can occur between persons of different races or ethnicities, or between persons of the same race or ethnicity.

The EEOC also provides some hypothetical examples of color discrimination:

• An African American employer violates Title VII if she refuses to hire other African Americans whose skin is either darker or lighter than her own. For example, it would be an act of unlawful color discrimination for an employer to refuse to hire a dark-skinned person to work at a cosmetics counter because the vendor prefers a "light skinned representative."
• A dark-complexioned African American manager violates Title VII if he frequently makes offensive jokes and comments about the skin color of a light-complexioned subordinate. This example is based on the EEOC's settlement of a claim against Applebee's.

Moreover, the EEOC's E-RACE Initiative is targeting these types of claims for special enforcement efforts:

Color discrimination in employment seems to be on the rise. In Fiscal Year 1992, EEOC received 374 charges alleging color-based discrimination. By Fiscal Year 2006, charge-filings alleging color discrimination increased to 1,241. A recent study conducted by a Vanderbilt University professor "found that those with lighter skin earn on average 8 to 15 percent more than immigrants with the darkest skin tone -- even when taking into account education and language proficiency. This trend continued even when comparing people of the same race or ethnicity." Similarly, a 2006 University of Georgia survey revealed that a light-skinned Black male with only a Bachelor's degree and basic work experience would be preferred over a dark-skinned Black male with an MBA and past managerial positions. However, in the case of Black female applicants seeking a job, "the more qualified or experienced darker-skinned woman got it, but if the qualifications were identical, the lighter-skinned woman was preferred."

While these claims are still rare, it is significant that EEOC charges of color discrimination have risen more than 330% since 1992. Moreover, the EEOC's E-RACE initiative calls for stepped up enforcement in this area.

It may not be a defense to a discrimination claim that two African American employees were treated differently if one is light complexioned and the other is dark complexioned. For employers, it's important to keep in mind that color discrimination is illegal, and is different than race discrimination.

It's a Discriminatory World After All - Sikh sues Disney for banning his turban

I am a Sikh man and the turban that I wear is a religiously-mandated article of clothing. My supervisor tells me that my turban makes my coworkers "uncomfortable," and has asked me to remove it. What should I do?

If a turban is religiously-mandated, you should ask your employer for a religious accommodation to wear it at work. Your employer has a legal obligation to grant your request if it does not impose a burden, or an "undue hardship," under Title VII. Claiming that your coworkers might be "upset" or "uncomfortable" when they see your turban is not an undue hardship.

The above is the EEOC's position on the accommodation of religious articles of clothing. I bring this up because Disney has been sued by a practitioner of the Sikh religion, who claims he was denied a job because of his turban. According to a press release by the Sikh American Legal Defense and Education Fund:

Mr. Channa applied for a job as a musician with Disney in the Fall of 2006 but was told that he would not be hired because he lacked "the Disney look" - a negative reference to his religiously-mandated dastaar (Sikh turban).

This lawsuit will most likely be decided on one question - does it pose an undue hardship on Disney for one of its performers to wear a turban? This question is not as easy to answer as it might appear. Disney World might be the most controlled environment on the planet. Employees are not called employees, but cast members. Every worker is considered integral to the suspension of disbelief that Disney is trying to create. Thus, if Mr. Channa is going to be performing, shouldn't he be required to wear the uniform, even if it means not wearing his turban?

On the flip side, Disney permitted Mr. Channa to interview and rehearse with his turban. If the specific uniform was a requirement for the job, why lead him along only to pull the rug out from under him at the last minute. Plus, I'd image that a company as large as Disney has had cast members in the past who have not been able to match the uniform exactly. For example, would Disney refuse to hire a disabled musician if he had to perform in a wheelchair?

It seems to me that Disney dropped the ball on this one. Can there really be an undue hardship on Disney by allowing Mr. Channa to wear his turban? The EEOC defines undue hardship as an accommodation that "requires more than ordinary administrative costs, diminishes efficiency in other jobs, infringes on other employees' job rights or benefits, impairs workplace safety, or causes co-workers to carry the accommodated employee's share of potentially hazardous or burdensome work." Religious head wear does not impact any of these factors. This is a lawsuit that Disney should settle and settle quickly, if for no other reason that to avoid the bad press that its small world apparently does not include Sikhs.

Is this the beginning of the end for the Ohio Healthy Families Act?

The Cleveland Plain Dealer is reporting that Governor Strickland has publicly come out against the Healthy Families Act:

Strickland, a Democrat, began speaking out publicly against the so-called Healthy Families Act last week, urging business and labor to get together and work out a compromise that would keep it off the ballot.

His motivations are both practical and political.... From a practical standpoint, Strickland clearly is concerned about the measure's economic costs. Like the coalition of business interests that is opposing the issue, he has noted how expensive it would be for companies to provide such a benefit.... Despite the concerns of employers, voters love the idea. Therein lies Strickland's political headache.

Voters of both parties support the proposal, but it is especially popular among Strickland's fellow Democrats. It has been predicted to drive Democratic turnout in this fall's presidential race in much the same way a proposed gay marriage ban did with Republican turnout in 2004. As with that issue, the sick-day proposal has national scope: it has been proposed in a dozen states and two cities, and is supported by presumptive Democratic nominee Barack Obama.

Because 70% of Ohioans support this measure, it will be very difficult to keep if off November's ballot, despite Governor Strickland's efforts. In the meantime, if you want more information on the likely harm the Health Families Act will cause to Ohio's already fragile business climate, visit the Ohio Chamber of Commerce's website about the OHFA, Ohio Business Votes.

The intersection of techology and labor law: new website for posting of compensation information raises concerns

George's Employment Blog reminds us that an employer cannot ban its employees from discussing wage and benefits without violating the National Labor Relations Act. According the NLRB's recent decision in Windstream Corp.:

[A]n employer rule which regards employee compensation and benefit information as confidential and prohibits employees from discussing such information with one another violates Section 8(a)(1) of the Act.... In examining whether a particular rule so violates Section 8(a)(1), the Board's analysis requires that the rule be such that "Employees would reasonably construe the language to prohibit Section 7 activity."

Windstream's challenged policy stated:

Employee compensation, benefits, and personnel records and information are confidential.

Only employees who need to know such information in the course of employment should access such employee information.

You should not disclose this information to any other Windstream employee unless that employee has a need to know such information in the course of employment.

Except as required to comply with law, you should never disclose this information to any party other than the employee or individual whose access has been authorized by the employee.

This does not prohibit you from disclosing or discussing personal, confidential information with others, so long as you did not come into possession of such information through access which you have as part of your formal Company duties.

(Winstream added the last sentence after the filing of the unfair labor practice charge). The NLRB found that the language violated Section 8(a)(1) because it was "so broadly stated that employees could and will construe them to prohibit discussions of wages and working conditions with others."

I was again reminded of this line of cases when I read an article in Business Week magazine this week touting the launch of Glassdoor.com. According to Glassdoor.com's press release, it will make available user-submitted, anonymous compensation information organized by company:

Compensation information by company and position. Unlike most salary services that only report aggregated data by generic position type and industry, Glassdoor provides details of salary, bonuses, and other compensation for actual positions and titles at specific companies. For example, users can see exactly what a software engineer at Google makes, along with bonuses and types of equity grants, in comparison to a software development engineer at Microsoft.

If employees have a statutory right to discuss compensation and benefit information, but lack the same right to use an employer's e-mail system for Section 7 purposes, can a company prohibit its employees from accessing Glassdoor.com without violating the National Labor Relations Act? The answer seems to be yes, as long as the prohibition only extends to company time and company equipment. A more broadly draft ban that applies to what employees do on their personal time very well might run afoul of the Windstream line of cases.

What I'm reading this week #35

While I recognize that the next statement might alienate some of my readers, I have to admit that I'm not the biggest NASCAR fan. That fact, however, does not stop me from reporting that a former NASCAR official has sued the racing league for sexual harassment, seeking an astounding $225 million in damages (which makes NASCAR a whole lot more interesting to me). For an HR perspective on this issue, click on over to The HR Capitalist. Meanwhile, the Connecticut Employment Law Blog has some insightful thoughts on companies being fairly stereotyped by their public image.

Rush on Business advises that companies should "build an Ark" to avoid employment lawsuit. What does Rush mean? Like Noah, businesses should be proactive in attacking issues before they become a problem that can swamp the company. Some examples include having an effective harassment policy, promptly and accurately documenting performance problems, and reviewing wage and hour compliance.

Recall that in Thompson v. North Am. Stainless, the 6th Circuit went beyond the plain language of Title VII to find a claim for associational retaliation. Jottings by an Employer's Lawyer, the granddaddy of employment law blogs, reports on a case out of the 5th Circuit that came to the exact opposite conclusion under the FMLA.

The Delaware Employment Law Blog observes that in employment disputes, simply providing an employees a forum to air their grievances can often stave off a lawsuit.

The Pennsylvania Labor & Employment Blog reports on Klopfenstein v. National Sales & Supply, in which a Pennsylvania federal court found that the act of getting coffee is not gender specific and therefore cannot form the basis for a sexual harassment claim.

Finally, this week brings us a trio of thoughful articles on preventing and avoiding retaliation claims: the Labor & Employment Law Blog on training supervisors to avoid retaliation claims; BLR's HR Daily Advisor on how not to be blindsided by a retaliation claim, and BLR's HR Daily Advisor on rules to prevent retaliation.

Defining the proper "decisional unit" is key in legitimacy of RIFs

Today, we'll finish up our series on releases and waivers of age discrimination claims by looking at how courts examine the scope of the decisional unit for purposes of making the requisite disclosures under the Older Workers Benefits Protection Act ("OWBPA") for a group reduction. For the previous two posts, see Offering of severance package found to be evidence of a constructive discharge, and Refresher on age discrimination waivers.

According to the 6th Circuit in Raczak v. Ameritech Corp., the purpose of OWBPA is to ensure that "workers who signed a waiver had a clear idea of what they were giving up, particularly that they had the ability to assess the value of the right to sue for a possibly valid discrimination claim." Thus, a valid waiver under the OWBPA in a group reduction must include information - ages and job titles - of everyone in the decisional unit, whatever that decisional unit may be, and the status of each individual with respect to whether the employee was selected for termination or retention. The law requires employers engaging in a group layoff to give employees need data to conduct a meaningful analyses to determine whether an employer engaged in age discrimination before agreeing to sign a severance agreement. They key in determining whether employees are truly comparing apples to apples is the scope of the "decisional unit" the employer uses to compile is list of affected and unaffected employees.

The OWBPA's regulations (29 C.F.R. § 1625.22) define the term "decisional unit" as follows:

[D]ecisional unit is that portion of the employer's organizational structure from which the employer chose the persons who would be offered consideration for the signing of a waiver and those who would not be offered consideration for the signing of a waiver. The term "decisional unit" has been developed to reflect the process by which an employer chose certain employees for a program and ruled out others from that program.

The regulations offer several examples to assist companies in selecting the proper decisional unit:

• If an employer is attempting to reduce its workforce at a particular facility and undertakes a decision-making process by which some of the employees at the facility are selected for a program and others are not, then the facility will be the decisional unit.
• If the employer seeks to reduce the number of employees at a facility by exclusively considering a particular portion or sub-group of its operations at a facility, then the decisional unit would be that sub-group or portion of the workforce at the facility.
• The decisional unit may be larger than one facility if an employer is attempting to combine operations from several facilities and considers employees in several facilities for termination.

Thus, they key factors for deciding the proper scope of the decisional unit include the identity of the decision maker and the employees actually considered for the RIF. Several cases provide additional examples of these principles in action:

Burlison v. McDonald's Corp.

McDonald's engaged in a nationwide corporate reorganization. It charged each regional manager with the task of determining which employees to keep for each new region. McDonald's offered each RIFed employee a severance package in exchange for a release of all claims. In its effort to comply with the OWBPA, McDonald's provided with each severance agreement a region-specific information sheet. Each of the 5 plaintiffs (all of whom were over 40) signed the releases and accepted the severance packages. Two years later, however, they sued for age discrimination, claiming that the releases were void because McDonald's had engaged in a nationwide RIF, for which the OWBPA required that it provide them nationwide information, and not just information limited to their region. The 11th Circuit found that because the decisions as to who to terminate were made on the regional level, the region was the proper decisional unit. Because the local managers made the decision, the nationwide unit had no relevance to the plaintiffs.

Kruchowski v. Weyerhaeuser Co.

While the employees in Burlison were rebuked for arguing for an overly broad decisional unit, the employer in Kruchowski v. Weyerhaeuser Co. was punished for selecting a unit that was too wide for the actual scope of the RIF. The plaintiffs were 16 of the 31 employees selected for a RIF at the defendant's mill. The OWBPA notice advised the RIFed employees that the "decisional unit" was all salaried employees at the mill. The court of appeals found that the waivers were invalid because the Notice misidentified the decisional unit as all salaried employees. The actual unit was all salaried employees who directly reported to the mill manager. 15 salaried employees did not report to the mill manager, yet were included in the Notice. According to the court: "Defendant itself ignored its structure and decision-making hierarchy when the notified plaintiffs of the 'decisional unit.'" Because the decisional unit of which the plaintiffs were notified and the actual decisional unit were two separate groups, the waiver was void.

Conclusion

RIFs are not do-it-yourself projects for businesses. They raise myriad employment law issues, not the least of which is the scope of the proper decisional unit for purposes of making disclosures under the OWBPA. It is crucial to get these waivers absolutely right, or companies risk paying severance and still getting sued for age discrimination. Don't put yourself in that position - seek professional help before carrying out a RIF.

Refresher on age discrimination waivers

Yesterday, we looked at Coryell v. Bank One Trust, which found that the offering of a severance package could constitute evidence of a constructive discharge. Even though the employee was losing his job as part of a corporate reorganization, the court believed a question existed as to whether he had any meaningful choice but to accept the severance package.

As I mentioned yesterday, the lawsuit could have been avoided if the company required Coryell to sign a severance agreement that included a valid release of claims as a condition to receive the severance package. In fact, I'd go so far as to say that it would take a very rare case for me to feel comfortable with an employee receiving severance of any kind without signing a release in return.
Severance agreements for employees age 40 or over present their own set of problems. The Older Workers Benefit Protection Act (OWBPA), which amended the federal Age Discrimination in Employment Act, requires that any releases and waivers of federal age discrimination claims be "knowing and voluntary." Simple enough, right?. What release is not entered into knowingly and voluntarily? Not so fast. The OWBPA specifically defines what a "knowing and voluntary" waiver means, and it is not as simple as it might sound:

1. The waiver must be part of an agreement between the employee and the employer.
2. The waiver must be written in a manner calculated to be understood by the employee.
3. The waiver must specifically refer to rights or claims arising under the ADEA.
4. The employee cannot be waiving any rights or claims that arise after the date he or she signs the agreement.
5. In exchange for the release, the employee must receive consideration in addition to that which he or she is already entitled.
6. The employee must be advised, in writing, to consult with any attorney before signing the agreement.
7. The employee must be given 21 days to consider whether to sign the agreement.
8. The agreement must provide for a period of at least 7 days following its execution for the employee to revoke the agreement, and the agreement cannot become effective or enforceable until that revocation period has expired.

If the release and waiver is provided as part of some severance program offered to a group of employees (such as a reduction in force), these requirements change. The 21 day period within which to consider the agreement is extended to 45 days. Moreover, at the start of that 45 day period (i.e., at the same time the employer gives the severance agreement to the employees), the employer must also disclose, in writing:

1. The eligibility criteria for inclusion in the group.
2. The job titles and ages of all individuals eligible or selected for the program.
3. The ages of all individuals in the same job classification or organizational unit who are not eligible or selected for the program.

Meeting these criteria is vitally important. The absence of even one of these factors invalidates the entire release as to the employee's federal age discrimination claim. Thus, even if an employee signs a severance agreement, the employee is free to bring a federal age discrimination claim if one of the above eight elements is missing from the agreement. To make matters worse, under Oubre v. Entergy Operations and current EEOC regulations, an employee is not required to tender back the severance pay as a condition to bringing an age discrimination claim under an invalid waiver. As Dan Schwartz points out in his Connecticut Employment Law Blog: "Employers are advised to seek legal counsel before using a model agreement."

Tomorrow, we'll examine the disclosures required in a group separation, and look at some cases from Ohio and elsewhere that talk about how to define the scope of the job classification for purposes of making these disclosures.