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.

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Apparently it's not just Sikhs that Disney World is alleged to discriminate against. The Delaware Employment Law Blog reports on a decision out of the 11th Circuit in which an Asian man's national origin discrimination claim against Disney World was thrown out because he was not qualified to work in Epcot Center's Norwegian restaurant.

Politics continue to dominate the headlines. The Connecticut Employment Law Blog draws some employment law lessons from Barack Obama's "lipstick on a pig" comment from earlier this week.

CCH HR Management presents a nice, neutral summary of the candidates' positions on various workplace issues.

The Word On Employment Law points out an issue that may have fallen under the radar in the EEOC's recent new compliance manual section on religious discrimination in the workplace. Apparently, the EEOC is now taking the position that it is not religious discrimination for employers to hold worship services at work during business hours.

Courtesy of the World of Work comes this shocker -- a retail chain's store manager calling a department head "Grandma" was evidence of age discrimination.

The Philadelphia Business Journal has an insightful piece about current trends in the enforcement of non-competition agreements.

The HR Capitalist makes an excellent point on the allocation of the responsibility for background checks between employers and recruiters.

BLR's HR Daily Advisor debunks some common myths about sexual harassment.

The Workplace Prof Blog discusses a Tennessee Supreme Court decision which held that an employer owed a duty of care to the daughter of a former employee for her asbestos-related death.

Finally, on The Becker-Posner Blog, Gary Becker and Judge Richard Posner have a healthy debate on whether competition between businesses or the law is more effective at fighting discrimination.

If you could ask each Presidential candidate one question...

Dan Schwartz at the Connecticut Employment Law Blog asks, "What one question would you like the debate moderators to ask each of the major party candidates?" Here's mine.

In May 2007, the EEOC published its Enforcement Guidance on Unlawful Disparate Treatment of Workers with Caregiving Responsibilities. As part of Sen. Obama's plan to strengthen families, he has vowed to protect against caregiver discrimination by committing the government to enforce those EEOC guidelines.

For Sens. Obama and Biden:

Gov. Palin could be a heartbeat away from assuming the presidency. Do you believe that a mother of a child with special needs can effectively balance her job as a mother and being the leader of the free world?

For Sen. McCain and Gov. Palin:

Since Gov. Palin's nomination, your campaign has gotten a lot of traction out of her life story. You have accused the media and the Democratic party of sexism in their treatment of Gov. Palin and her dual role as a politician and mother to a special needs child. In light of Gov. Palin's caregiving role, if elected, will you make the same commitment as Sen. Obama to combat workplace discrimination against people with caregiving responsibilities?

UPDATE: Coincidentally, msnbc.com posted an article this morning about the potential Palin effect on working moms. From the article: "A spokeswoman for the McCain-Palin campaign said she was unable to say at this time what Palin’s position is on federal policies relating to job protections and benefits for working mothers." All the more reason to ask this question.

Every minute counts for FMLA eligibility

A few years ago I had the privilege of arguing the winning side in Ricco v. Potter (6th Cir. 7/27/04). Ricco held that "make-whole relief awarded to an unlawfully terminated employee may include credit toward the hours-of-service requirement contained in the FMLA's definition of 'eligible employee,'" reasoning that "[t]he goal of a make-whole award is to put the employee in the same position that she would have been in had her employer not engaged in the unlawful conduct; this includes giving the employee credit towards the FMLA's hours-of-service requirement for hours that the employee would have worked but for her unlawful termination."

Pirant v. U.S. Postal Service (7th Cir. 9/4/08) illustrates the import of the Ricco holding. the USPS terminated Pirant for attendance violations. She claimed that the USPS violated the FMLA by terminating her for missing work because of an arthritic knee. One part of one day of work proved dispositive to her FMLA claim. On October 5, 2001, Pirant’s supervisor ordered her to clock out two hours early, claiming that she was being insubordinate and not doing her work. Pirant clocked out and went home two hours early. While she complained to a Postal Service Dispute Resolution Specialist, who advised that she could file a formal grievance for restoration of back pay if she still thought she had been wrongfully ordered to clock out two hours early. Pirant, however, never filed a timely grievance. The USPS secured dismissal of her FMLA claim because she had only worked 1249.8 hours in the preceding 12 months. Thus, she was 12 minutes short of the law's requisite 1,250 hours.

This case is a good lesson for companies that something as trivial as a grievance over 2 hours of missed work could end up being very significant. If Pirant had grieved that two-hour suspension and had won, she would have been over the 1,250 hour threshold. In that case, instead of fighting over her eligibility for FMLA leave, the employer would have been fighting over the motivation for her termination, a much harder case. However, because she failed to grieve that suspension, it was a moot point:

Pirant also argues that she should be credited for the two hours she alleges she missed when her supervisor improperly ordered her to clock out early. Citing the Sixth Circuit’s decision in Ricco v. Potter, 377 F.3d 599 (6th Cir. 2004), Pirant argues that hours not worked because of a wrongful suspension or discharge count as hours of service for FMLA purposes. Ricco does not help her here....

Here, Pirant was advised of her right to file a formal grievance and request for back pay after the October 5, 2001 clock-out incident. She did not do so—not, at least, until after she was terminated and long after the 15-day regulatory filing period had expired. Nor did she pursue any challenge to the dismissal of her belated grievance as untimely.... By failing to pursue a formal challenge to her suspension, Pirant has accepted that she is not entitled to either compensation or FMLA credit for the lost two hours.

[Hat tip: Workplace Prof Blog]

Are you ready for the return of labor unions?

Statutes are famous for their creative names. For example, did you know that the [USA] Patriot Act is actual short for Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act? The Employee Free Choice Act (ECFA) is no exception. After all, in a democracy who's against people having a free choice? If you are an employer of a non-union shop, you best decide that you are against it, and figure out a plan to cope with it if it becomes law.

Under current federal labor law, the tools used to recognize a union as employees' exclusive bargaining representative begin with a employee petition for representation by a union, and in most cases end with a secret ballot election. If more than 30% of employees, but less than a clear majority, sign petition cards requesting representation, the cards are submitted to NLRB to hold a secret ballot election. If more than 50% of employees certify their desire for representation, a union can choose to form based on the cards alone. An employer, however, does not have to recognize the card check petition and can require a secret-ballot vote overseen by the NLRB. Because most, if not all, employers will insist on a secret ballot election if given the opportunity, there are very few unions that end up being certified without an election being held.

The EFCA, however, will change this process by removing the secret ballot election. Under the EFCA, an employer would no longer have the opportunity to demand a secret ballot election. In other words, a majority of cards will be enough to certify a union.

Is there anything less democratic about people not being able to state their opinion via a secret ballot? I can't put it any better than Representative John Kline of Minnesota:

 

This bill has passed the House, but was held up by a filibuster in the Senate. Regardless, President Bush has already gone on record with a promise to veto it if it ever comes in front of him. Unsurprisingly, Barack Obama is in favor of the EFCA, and John McCain is against it. Even if McCain wins in November, this issue will not go away, as Congressional Democrats will continue to aggressively push for its passage.

For now, and even if the EFCA becomes law, the best defense against a labor union is simply being a good place to work. Having competitive wages and benefits, maintaining open lines of communication between employees and management, making personnel decisions for legitimate, non-arbitrary reasons, and fostering a sense of community all go a long way to deterring employees from even considering brining in a union.

What McCain's Sarah Palin decision teaches us about employment law

A lot of ink has been spilled in the last 10 days about John McCain's decision to choose Sarah Palin as his running mate. Much of that ink has focused on Palin's family issues that have come to light and whether McCain's team properly vetted her background. Suffice it to say that I'd like to see companies do more extensive screenings on even their hourly employees then it is believed McCain did on Palin.

Some of that ink has also suggested a sex-based bias in the treatment of Governor Palin as a mom and the role that plays in her ability to effectively perform her job. Some conservative pundits have suggested a bias because no one is questioning Obama's ability to govern and be a father at the same time.

While this debate has a lot to say about sexual stereotypes and the treatment of parents in the workplace, I'd like to use this debate to illustrate another point. On May 21, 2008, President Bush signed into law the Genetic Information Nondiscrimination Act ("GINA"). Among other provisions, GINA makes it illegal for employers to discriminate against any employee because of the employee's genetic information, or the genetic information of an employee's family members. While it may seem legitimate to question whether Sarah Palin has the time to take on the Vice Presidency and effectively parent a special needs child, GINA instructs that such considerations are illegal.

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With Ohio's Healthy Families Act officially dead, attention turns to legislation on the federal level. It is safe to say that if Barack Obama is elected President, employment law in this country will see its biggest transformation since perhaps 1964. On the horizon are landmark pieces of legislation, including the federal Healthy Families Act, the Employee Free Choice Act, the ADA Restoration Act, the Civil Rights Act of 2008, and the Lilly Ledbetter Fair Pay Act. The ABA Journal Daily News and Human Resource Executive Online have the details.

Work Matters, a blog I recently discovered, has an interesting take on race in the workplace.

The Business of Management points out that it is generally a bad idea to notify employees about a lay off via email.

The Delaware Employment Law Blog reports on the 10 best excuses for being late to work.

The Evil HR Lady gives some tips on how to handle an employee who frequently skips out of work because of headaches.

The Labor and Employment Law blog lists 8 steps employers should take to comply with HIPAA.

Fair Labor Standards Act Law talks about Kimoto v. McDonald's Corp., in which a California federal court refused to certify a wage and hour class action.

Finally, Workplace Prof Blog gives its opinion on a 3rd Circuit case which held that a Spanish-speaking employee could be bound by an arbitration agreement written in English.

Ohio Chamber of Commerce announces victory on paid sick leave

The Ohio Chamber of Commerce has weighed in on the timely demise of the Healthy Families Act:

The Ohio Chamber of Commerce is pleased the mandated sick leave proposal will be pulled from the November ballot.  We appreciate the courage Governor Ted Strickland exhibited as he worked diligently to protect Ohio’s economy from this extremely costly proposal.  We applaud his leadership and the leadership of Senate President Bill Harris and House Speaker Jon Husted on this issue.  They truly understood how detrimental this mandate would be to our state’s economy and the ability to attract and retain the jobs Ohioans so desperately need.  Ohio employers have always provided good-paying jobs with excellent benefits.  With this issue behind them, they can now get back to the work of growing their businesses and creating jobs.

Meanwhile, SEIU District 1199, the measure's sponsor, has indicated that it pulled the issue from the ballot after Gov. Strickland and Sen. Sherrod Brown pledged their help in enacting the law on a federal scale. In other words, stay tuned in 2009 for the resumption of this battle on Capitol Hill.

Victory (for now): Healthy Families Act to be pulled from ballot

Rumors started circulating early this morning that the Governor finally succeeded in getting the Healthy Families Act pulled from the ballot. Now, we have formal confirmation, courtesy of the Columbus Dispatch:

Ohioans for Healthy Families, the group that backed the paid sick-day amendment, said today that it has asked that the proposal be pulled off the Nov. 4 ballot.

Officials with the Service Employees International Union were holding a press conference this morning with Gov. Ted Strickland and U.S. Sen. Sherrod Brown, D-Ohio, to announce the decision.

Strickland and Brown said they would push for a separate law requiring paid sick days.

The compromise almost certainly will be Sen. Brown pushing for similar legislation in the Senate. If Obama wins the election, it is guaranteed that we will see the Healthy Families Act, in some form, on a national level. More on this to come.

On a personal note, thank you Governor Strickland for standing up for Ohio's businesses and taking a position that might not be popular with your base, but is clearly in the best interest of Ohio.

Now, I have to go find something to do to fill all my time that's been taken up by this issue.

Be careful what you ask for

Non-competes are a curious breed. They are often used, but difficult to enforce. What's the harm in trying, you might ask? If an employee signs a non-competition agreement and goes to work for a competitor, why not roll the dice and see if you can extract your pound of flesh from the former employee and your rival?

U.S. Foodservice v Marzich (N.D. Ohio 9/2/08)* illustrates the dangers. As a result of U.S. Foodservices's attempt to enforce a non-compete agreement against former executives, it is now faced with an Opinion and Order from a federal court that its agreement is invalid as a matter of law:

The breadth of solicitation and confidentiality covenants certainly extend beyond the reach necessary for the protection of Foodservice's business interests and presents an undue hardship on the Former Employees in violation of Maryland's law on restrictive covenants.... The Agreement lacks the narrow tailoring necessary to merely prevent the Former Employees from trading on the goodwill they created while serving Foodservice customers. Rather, the restrictive covenants appear designed to prevent any kind of competition by the Former Employees, which is not a legally protected interest under Maryland law.... While Foodservice has a legitimate interest in protecting its customer relationships, it does not have a legitimate interest in limiting ordinary competition. By prohibiting the Former Employees from soliciting business, "directly or indirectly" from any "Persons" in the universe of "Customers" who have ever made "contact" with Foodservice, "whether or not these [contacts] resulted in sales," the Agreement prohibits the Former Employees from engaging in conduct that could only reasonably be construed as ordinary competition.

If the company cannot enforce a non-compete against former executives, who can it enforce it against? A national company with more than 27,000 employees is now faced with the prospect of having an agreement that it can never enforce against anyone. For current employees, it will have to go back to the drawing board. For former employees, in the words of one of my former law professors, it's too bad, so sad, hard cheese.

This case certainly gives companies something to consider the next time an employee goes to work for a competitor.

*Full disclosure: KJK represents the defendants.

Q&A on applying performance and conduct standards to employees with disabilities

It is an oversimplification to simply say that employers should hold disabled employees to the same conduct standards as non-disabled employees. Certain conditions may require modifications of conduct and performance standards as a reasonable accommodation to enable an employee to perform the essential functions of the job adequately. To clarify these issues, the EEOC has published a comprehensive Q&A on Applying Performance and Conduct Standards to Employees with Disabilities.

According to the EEOC:

Although, an employee’s disability typically has no bearing on performance or conduct, sometimes an individual's disability may contribute to performance or conduct problems. When this is the case, a simple reasonable accommodation often may be all that is needed to eliminate the problem. However, EEOC continues to receive questions from both employers and employees about issues such as what steps are appropriate where a disability is causing – or seems to be causing – a performance or conduct problem, when a request for accommodation should be made, and when an employer can properly raise the issue of an employee’s disability as part of a discussion about performance or conduct problems. Even when the disability is not causing the performance or conduct problem, some employers still have questions about what action they can take in light of concerns about potential ADA violations.

The Q&A covers topics such as:

• Seeking medical information when there are performance or conduct problems
• Attendance issues
• Dress codes
• Alcoholism and illegal use of drugs
• Confidentiality issues arising from granting reasonable accommodation to avoid performance or conduct problems

It's a must read for any company dealing with a disabled employee who is not meeting standards or who is having conduct or discipline problems potentially attributable to a disability.

Sometimes the little things go a long way

Often times, we forget that the law is a floor and not a ceiling. For example, just because the FMLA caps unpaid leave at 12 weeks does not mean that every employee who cannot return to work at the end of 12 weeks should be terminated (in fact, the ADA may require otherwise).

De la Rama v. Illinois Dept. of Human Servs. (7th Cir. 9/2/02) illustrates this point. De la Rama called in sick from July 19, 2004 through August 19, 2004. Although she was diagnosed with fibromyalgia in early August, she did not tell her employer until much later. Instead, she continued to call in sick without explaining the nature of her illness. Ultimately, in October she submitted a medical certification and requested for a leave of absence, for which the employer granted FMLA leave. De la Rama was out on unpaid FMLA leave for 17 weeks, and upon her return assigned to a different unit under a new supervisor at her request. Her absences in July and August, however, were treated as unauthorized.

She sued, claiming that the classification of her July and August absences as unauthorized interfered with her rights under the FMLA. The court disagreed:

[I]n light of the fact that de la Rama was permitted to take seventeen weeks of leave—five weeks more than the twelve weeks the Department was required to give her under the FMLA—we find it difficult to see how the Department interfered with her entitlement to leave at all.

The employer's generosity in giving de la Rama the leave she needed once she documented her need was very persuasive to the court in deciding whether its designation of her prior leave as "unauthorized" violated the FMLA. In other words, its willingness to go above and beyond for an employee demonstrated that it did not harbor an intent to violate the Act. Keep this in mind the next time you are faced with the prospect of terminating an employee at the end of the 12th week of leave, or extending the leave for a few extra weeks to allow the employee to return to work.

Employer's failure to provide written notice does not save employee who failed to return to work following FMLA leave

Under the FMLA, an employer must provide an employee taking FMLA leave "with written notice detailing the specific expectations and obligations of the employee and explaining any consequences of a failure to meet these obligations." 29 CFR 825.301(b)(1). In fact, the Department of Labor provides a convenient form for employers use. Among other items, the notice must provide whether the employer will require the employee to "present a fitness-for-duty certificate to be restored to employment." 29 CFR 825.301(b)(1)(v). If an employer fails to provide the required notice, "the employer may not take action against an employee for failure to comply with any provision required to be set forth in the notice." 29 CFR 825.301(f).

Tucker v. Middleburg-Legacy Place (6th Cir. 8/29/08) answers the question of what happens if an employee mistakenly assumes that a fitness-for-duty certificate is required before she can return to work. When Sonia Tucker started her FMLA leave, she claims that her employer did not provide her with the written notice required by 825.301(b)(1). She also claimed that while she was cleared to return to work on January 17, 2007, she failed to do so because she believed her employer required a fitness- for-duty certificate. When she failed to show up for work on January 17, the employer fired her for job abandonment.

The Court held that even if the employer failed in its obligation to provide Tucker with the required written notice, her FMLA claim warranted dismissal because she did not claim that the fitness-for-duty certification was an actual requirement:

Plaintiff has further failed to allege she was terminated for failing to present the fitness-for-duty certificate. In ¶ 12 of her Amended Complaint, Plaintiff alleges, “defendants unlawfully terminated plaintiff from her employment for alleged job abandonment.” (Emphasis added). She does not allege her employment was terminated for failure to provide a fitness-for duty certificate. Plaintiff clearly alleges she “had been initially cleared to return to work from her medical leave on January 17, 2007.” (Amended Complaint at ¶ 9). She did not return to work on that date. Rather, she went to her physician on that day to be examined and to obtain a fitness-for-duty certificate. (Amended Complaint at ¶ 11). Nowhere does Plaintiff indicate she advised Defendants of the doctor’s appointment, or otherwise communicated with Defendants on the date of her scheduled return. As the Magistrate Judge noted, the provision in 29 C.F.R. § 825.301(f), barring employer action against an employee for failure to present a fitness-for-duty certificate “is only triggered if the employer actually required the employee to present a fitness-for-duty certificate.” (Emphasis added).

Typically, ambiguous employment policies do not help an employer. In this case, however, the ambiguity was fatal to the employee's claim. Because the employer did not tell the employee, in writing, that a fitness-for-duty certificate was required, the court overlooked its failure to tell the employee that the certificate was not required.

Despite this decision, it is not a real good idea for companies to ignore their obligations under 825.301(b)(1) to provide written notice to employees taking FMLA leave. Much more often than not, that failure will invoke 825.301(f)'s protections, and an employer will not be able to fire an employee who fails to meet some other FMLA obligation (such as returning to work).

Happy Labor Day

Like most, I'm happily taking this Labor Day off. If you're looking for something to read, hop over to the Connecticut Employment Law Blog, where Dan Schwartz gives us a brief history of this holiday.

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Lawsuits come in all shapes, sizes, and levels of intrigue. One lawsuit filed this week in federal court in Connecticut is high on the latter -- check out the Connecticut Employment Law Blog's post on Scott Levy, et al. v. World Wrestling Entertainment. Scott Levy, who wrestles under the name "Raven", claims that the WWE mis-classified him and other similarly situated current and former WWE performers as independent contractors. Levy claims that he is owed compensation as a result of being an employee of the WWE. While the Complaint is vague, one would presume that at least some of the compensation owed is for unpaid overtime. We should continue to keep on this case, as the WWE and Vince McMahon are known for being aggressive litigants.

The Delaware Employment Law Blog continues the wage and hour theme by giving a good primer on the FLSA's executive exemption.

Fair Labor Standards Act Law rounds out this week's wage and hour posts by reporting on a case in which the court held that an employee's ability to work overtime was an essential function of her job, thereby dooming her disability discrimination claim.

Workplace Horizons gives detail on a potentially significant trial in which a transgender Plaintiff alleges that the Library of Congress engaged in sex discrimination in violation of Title VII by refusing to hire her. This case is being tried after the district court ruled that Title VII is broad enough to cover transgender persons under its provision banning discrimination based on sex. On the flip side, Dan Schwartz at the Connecticut Employment Law Blog reports on an opposite outcome in a case filed in federal court in Connecticut.

The FMLA Blog digests a case in which the court held that discouraging the use of FMLA leave can violate the FMLA even if the employer ultimately grants the leave.

Labor and Employment Law Blog has a top-5 list of  workplace privacy tips for employers.

Nolo’s Employment Law Blog bashes companies that use surveillance on employees taking FMLA leave. Linked are my thoughts on the Vail v. Reybestos case.

Finally, Rush on Business reminds us that honesty really is the best policy in business dealings.

LPGA Tour implements English proficiency requirement

From this morning's USA Today:

The LPGA tour will use the next four months to create evaluation procedures for its new policy requiring its member golfers to speak English or face suspension.

All players who have been on the tour for two years could be suspended if they fail to pass an oral evaluation of their English proficiency starting at the end of the 2009 season.

The evaluation will assess communication skills, including conversation. Players will be required to conduct interviews, interact with pro-am partners and fans and give acceptance speeches in English and without the help of an interpreter, according to LPGA deputy commissioner Libba Galloway.

"For an athlete to be successful in the sport-entertainment business we live in today, they need to perform on and off the field of play, and communicating effectively is a big part of that," Galloway said "We are a U.S.-based tour, and the majority of our pro-am players, our fans, our sponsors speak English."

I've written before about the legality of English-only rules. Generally, courts uphold English-only rules if the employer can show a legitimate business justification for the requirement. Examples include:

• Curbing employee hostilities.
• Promoting communication with customers, coworkers, or supervisors who only speak English.
• Enabling employees to speak a common language to promote safety or enable cooperative work assignments.
• Facilitating a supervisor's ability monitor the performance of an employee.
• Furthering interpersonal relations among employees.

The LPGA's rule is not a ban on the use of foreign languages, but, as the press has been reporting it, a requirement that its members are proficient in English. Thus, it is less onerous than a prohibition on the use of one's native language. Nevertheless, pundits are already decrying this proposal and opining on its illegality.

Let's look at the LPGA's rationale for this rule. 18 of this year's 23 LPGA tournaments have been won by players for whom English is not their native language, including all four of this year's majors. 45 of the 120 players on tour are South Korean, seven of which in the top 20. The LPGA has made the decision that to grow its sport in its home country, its stars need to be able to communicate effectively with the media. The LPGA is not requiring its members only speak English, but that they are able to communicate in English when the need arises (such as in press conferences or pro-am events). Because of this legitimate business purpose, the LPGA's proposed rule should pass muster under Title VII.

Background check protects employer from negligent hiring claim

A claim of negligent hiring requires proof of five elements under Ohio law:

1. the existence of an employment relationship;
2. the employee's incompetence;
3. the employer's actual or constructive knowledge of the employee's incompetence;
4. the employer's act or omission causing the plaintiff's injuries;
5. the employer's negligence in hiring or retaining the employee as the proximate cause of the plaintiff's injuries.

Prewitt v. Alexon Services (Butler Cty. 8/25/08) concerns an employee who was raped by a co-worker. When Alexon hired the co-worker, it conducted a background check that revealed a misdemeanor disorderly conduct conviction, but not past history of sexual assault or abuse. Prewitt claimed that Alexon's screening was negligent because it did not conduct any additional inquiry or investigation to discover that the disorderly conduct conviction was sexual in nature. The court disagreed, finding that Alexon was entitled to rely on the results of its background check.

No applicant vetting process is perfect. Applications ask for criminal histories, and some companies go one step further by actually ordering a background check. At that point, what else can a company do? The transaction costs associated with a typical background check are high enough. If every employer had to investigate every conviction that shows up on a report to discover its underlying facts, the hiring process would grind to a halt. Thankfully, the court in Prewitt realized that reasonable steps taken by an employer deserve a reasonable result - in this case, the dismissal of the claim against the employer.

Disclosure of confidential medical records held to be protected activity

Bernadine Vaughn worked as a nurse at Epworth Villa, a non-profit,
continuing care retirement community. On April 28, 2004, Vaughn filed a charge with the EEOC alleging that Epworth Villa discriminated against her because of her age and race. Specifically, she claimed that she was disciplined for making errors with a patient’s medical records, while a younger, white employee was not. In support of her claim, Vaughn provided the EEOC with several pages of unredacted medical records concerning an Epworth Villa patient. Over a year after Vaughn had filed her charge of discrimination with the EEOC (which remained pending), Epworth Villa learned about Vaughn’s disclosure of the unredacted medical records, which Vaughn admitted. Within a week, Epworth Villa terminated her employment for disclosing confidential medical records to a third party.

Vaughn subsequently claimed retaliation -- that he disclosure of the medical records to the EEOC in support of her discrimination charge constituted protected activity, and Epworth Villa terminated her because of that protected activity.

In Vaughn v. Epworth Villa (10th Cir. 8/19/08), the 10th Circuit Court of Appeals agreed that Vaughn's conduct was protect activity, but nevertheless affirmed the dismissal of her retaliation claim because her disclosure of confidential information violated the employer's policy:

Epworth Villa asserts that it terminated Vaughn because she violated the organization’s policies and procedures regarding confidentiality when without authorization, she provided the unredacted medical records to the EEOC. ...

Unless Vaughn can show that other Epworth Villa employees were not terminated for engaging in the same or similar conduct – intentionally disclosing unredacted medical records to a third party – the fact that Epworth Villa was not required to terminate Vaughn does not give rise to an inference of pretext. In the absence of any evidence that similarly situated employees were treated differently, it is perfectly plausible that Epworth Villa would terminate Vaughn – whether it was required to or not – for intentionally disclosing the unredacted medical records rather than for some retaliatory purpose.

Current employees who file discrimination claims might go snooping to uncover favorable evidence to bolster their chances of success. While such snooping might constitute protected activity, this case gives employers a powerful weapon to combat it. The catch is that companies must have a confidentiality policy and must consistently enforce that policy against employees who violate it. Otherwise, enforcement against the one employee who happened to have claimed discrimination will most likely be viewed as retaliatory.

Should businesses be reviewing paid leave policies in advance of the Healthy Families Act?

The above-the-fold headline on the front page of Sunday's Plain Dealer business section reads, "Employers consider altering benefits before voters decide sick days issue." A whole lot of ink has been spilled in law firm newsletters all over Ohio discussing this very issue. As the article notes, some lawyers are recommending and business are considering making revisions to benefit plans and leave policies now, to potentially lessen the blow if the Healthy Families Act passes on Nov. 4.

This debate centers around two sentences in the proposed law, section 4114.07:

(B) An employer with a leave policy providing paid leave options shall not be required to modify such policy, if such policy offers an employee the option at the employee’s discretion to take paid leave that is at least equivalent to the sick leave described in this section.

(C) An employer may not eliminate or reduce leave in existence on the date of enactment of this Act, regardless of the type of such leave, in order to comply with the provisions of this Act.

Some are considering changes now because of 4114.07(C). Before the law passes, a company will be able to reduce employees' vacation days to insert paid sick leave, or amend its current leave program to switch to a paid time off system. After the law goes into effect, however, current leave programs cannot be subtracted from to add the 7 paid sick days.

The question in my mind is what does "leave that is at least equivalent to the sick leave described in this section" mean? Is is leave that an employee can for his or her own physical or mental illness, injury, medical condition, or professional medical diagnosis, or that of a child parent or spouse? Or, does the leave have to comply with the subtle nuances of the statute, such as lack of notice, incremental leave as small as 1 hour, and no medical certification for leaves of less than 3 days?

If a business has policies that, alone or take together, enable employees to take 7 paid sick days, that business should, in theory, be okay under 4114.07(B).

If companies try to get out in front of the OHFA and change their personnel policies now by converting vacations in paid time off, which can be used for any reason including sick leave, will business still have to grant an additional 7 days of sick leave if the PTO they do grant does not meet the OHFA's minimum requirements for the use of paid sick days?

Common sense would dictate that a day that can be used as a paid sick day should suffice, and the other nuances are merely administrative and can be added in after the fact by businesses if the OHFA passes. However, there is nothing common sense about this law. Businesses run a real risk by making any changes in advance of the election. They very well might end up paying double benefits.

In other words, their are serious pros and cons to making any changes now.

 

Pros	Cons
7 days that an employee can use for sick days is equivalent to the overall leave provided for in the HFA, and therefore should suffice under 4114.07(B).	Ambiguities in the proposed law mean that any changes made now might not suffice unless the paid sick leave is tracked feature-by-feature, such as no notice and leave in 1 hour increments.
Waiting to make changes risks not be able to subtract from current benefits, thereby adding the cost of 7 paid sick days.	Making changes now risks that they will not suffice under the statute, thereby adding the cost of 7 paid sick days.
Employees may prefer a more flexible leave program.	Negative employee morale by changing leave plans, such as eliminating vacation days.
PTO policies offer employees greater flexibility in how they use their time off.	PTO policies provide employers less control over how employees use their time off.

 

Any decision about amending leave and benefit policies in advance of the election is not a easy as it might sound. These decisions must be carefully thought out after weighing these pros and cons.

Governor Strickland's press release against the Healthy Families Act

For those who are interested, the following is the Governor's press release condemning the Healthy Families Act.

Strickland on Sick Days - Upload a Document to Scribd

The fight between both sides of this issue between now and November 4 is going to be very contentious. It is very significant that our Democratic Governor has taken a public stand against this measure. The key for businesses is to figure out a game plan to capitalize on this publicity and get the message out to employees that there is a significant price to be paid in exchange for 7 paid sick days.

There are a wealth of resources available on the internet about the Healthy Families Act.

• Ohioans to Protect Jobs and Fair Benefits is the official campaign against this ballot measure. Its website not only has information for those who oppose this initiative, but details on how to get involved in the campaign.
• COSE (the Council of Smaller Enterprises) also has a great informational website about the Healthy Families Act, and information on how to get involved in the campaign.
• Play Sick Ohio has been created by the Ohio Roundtable, a non-profit public policy think tank.

And, I will continue to keep everyone updated as this campaign against mandated paid sick leave continues.

WIRTW #44

I guess if Motherhood Maternity can be sued for pregnancy discrimination, then the AARP can be sued for age discrimination. It seems that Bonita Brady, age 63, claims she was passed over for a series of promotions even though she received excellent job reviews. Michael Moore at the Pennsylvania Labor & Employment Blog has some excellent thoughts on what a lawsuit such as this one can mean to an organization's core values.

As for the rest of the week's best posts:

Drug and Device Law provides a manifesto (of sorts) on what it means to be a lawyer. Hopefully they won't mind, but it's so good I'm reprinting the highlights. Please click on over for the rest.

We admit it: We're as crazy as the next guy.

Heck -- given that we spend nights and weekends feeding this blog, there's a pretty strong argument that we're crazier than the next guy.

We fret about whether each and every one of the ten million documents has been reviewed and coded correctly, and we change commas into dashes -- and back again -- in footnote nine on page thirty of the brief.

We believe that our clients are more likely to win if we do our jobs right, and we devote an awful lot of energy to that cause.

And then the system kicks in.

Courts make utterly unpredictable procedural rulings that dramatically change the value of our cases. ...

The Laconic Law Blog and the Connecticut Employment Law Blog have details on amendments to the federal Consumer Product Safety Commission Act that create a new cause of action designed to protect whistleblowers on product safety issues. Also check out the Connecticut Employment Law Blog's summary of issues surrounding the selection of EPL insurance.

The National Law Journal reports on employers' use of surveillance to catch FMLA scofflaws.

The Delaware Employment Law Blog lists the top 5 costs associated with workplace bullying.

Wage and Hour - Development & Highlights correctly reports that lunch time can be counted as work time. For my thoughts on this issue, see More on compensation for meal periods.

The Manpower Employment Blawg presents its list of the top 10 most frightening employment law issues.

Electronic Discovery Navigator reminds businesses that lawsuits can be an expensive IT threat.

Governor Strickland formally speaks out against Healthy Families Act

Governor Strickland's efforts to broker a compromise on the Healthy Families Act have officially failed. He has been tirelessly working behind the scenes to come to some workable solution that would keep the initiative off November's ballot. With that effort having gone for naught, the Governor has now officially weighed in with their opinion on this proposal:

We also recognize it is important to make clear our thoughts on important public policy issues and today are announcing that we cannot support the paid sick-day ballot initiative.  While we would hope that all Ohio businesses would make paid sick days available to their employees whenever possible, we believe that this initiative is unworkable, unwieldy and would be detrimental to Ohio's economy, and we will be opposing it and asking Ohioans to oppose it as a result.

Folks, if the Democratic Governor of our state is against this pro-employee measure, is there any doubt that its passage is bad for Ohio?

Blasting through the bulletproof employee

Butler v. Alabama Dept. of Transportation (11th Cir. 7/30/08) concerns a black employee belatedly complaining that a white employee used the word "nigger" in her presence, but admittedly not directed at her. After Butler was terminated, she successfully prosecuted a claim for retaliation. The 11th Circuit took away the $200,000 verdict because the racial epithets of which Butler complained did not amount to actionable harassment:

Assuming that Butler did believe that Stacey’s words immediately after the wreck amounted to an unlawful employment practice ..., her belief is not objectively reasonable. It is not even close. The incident consisted of Stacey’s use of a racial epithet twice a few minutes apart. What Stacey said was, as Butler testified, “uncalled for” and “ugly.” But not every uncalled for, ugly, racist statement by a co-worker is an unlawful employment practice. This incident occurred away from work. It did not happen within the hearing of any supervisors. Butler admits that she never thought the epithets, deplorable as they are, were aimed at her. She has never even suggested that this one-time use of vile language away from work created a hostile work environment. She also conceded during cross-examination that the incident did not affect her ability to do her job. The incident that gave rise to this case is nowhere near enough to create a racially hostile environment.

This case is a boon for employers. Often, employees will complain about bogus incidents of discrimination in an attempt to bullet-proof themselves from an adverse action. Employees believe that the mere threat of retaliation liability will protect their jobs. Sometimes employers become paralyzed over the threat of litigation, no matter how baseless it might be. This case sends the right message to employees, that a meritless complaint will not protect a poor performer.

Of course, this case merely begs the question of what constitutes actionable discrimination. Employers can still get themselves in trouble by trying to make legal judgments of what is and is not a legitimate complaint of discrimination. Whenever a company is thinking about terminating or taking any other adverse action against an employee who has complained about discrimination, it is best to get employment counsel involved to make sure that every "i" is dotted and "t" crossed, so that when the inevitable retaliation claim is filed the company is in the best position to defend itself.

Right to reinstatement under USERRA for returning military personnel is absolute

In 1994, Congress enacted USERRA (the Uniformed Services Employment and Reemployment Rights Act), to protect the employment rights of the men and women who serve our country. Although this statute is not litigated as often as Title VII, it is nevertheless important to employers, especially in light of the number of military personnel returning from Iraq and Afghanistan.

USERRA guarantees returning veterans a right of prompt reemployment after military service, provided the employee meets five conditions:

1. The employee must provide the employer notice that the employee intends to take leave for military service.
2. The cumulative length of the employee's service cannot exceed five years.
3. If the leave exceeded 30 days, the employee makes timely reapplication for employment.
4. If the leave exceeded 30 days and upon the employer's request, the employee documents the timeliness of the reapplication and the duration of the leave.
5. The employee's separation from military service was under "honorable conditions."

If an employee meets these conditions, the employer must promptly reinstate that employee in a position the employee might have reached had it not been for the intervening military service, at the level of pay, benefits, seniority, and status commensurate with that position.

What happens, however, if an employee meets these conditions, but the employer has a good faith doubt about the employee's veracity in documenting the leave? Can the employer refuse to reinstate the employee, or reinstate the employee to a lesser position while it sorts out its good faith doubt. According to Petty v. Metropolitan Gov't of Nashville-Davidson Cty. (6th Cir. 8/18/08), the right to reinstatement is absolute, and the employer cannot place conditions upon it if the employee meets all of the statutory requirements.

Brian Petty was a patrol sergeant in the Nashville police department prior to his deployment to Iraq. His tour of duty ended prematurely when he was brought up on military charges for bootlegging wine to Kuwaiti natives in exchange for work. In lieu of going forward with a court martial, Petty was permitted to resign “for the good of the service.” The Army accepted his resignation and dismissed all charges against him.

Petty had to fill out certain return to work paperwork at the Nashville police department. On that paperwork, he disclosed the charges that were brought against him. He was kept out of work, without pay, for a month while the police department investigated. It ultimately permitted Petty to return to work, albeit at a lesser position, answering phones and filling out paperwork at a desk. He remained at that desk job while the department continued to investigate the veracity of his representations about his military charges.

The Court ruled that if an employee meets all of the prerequisites for military leave, reinstatement to the same or similar position is mandatory. It is irrelevant if the employer has a good faith doubt in the veracity of return to work paperwork the employee completes.

It is of no consequence here that Metro believes it is obligated to “ensure that each and every individual entrusted with the responsibility of being a Metropolitan Police Officer is still physically, emotionally, and temperamentally qualified to be a police officer after having been absent from the Department.” In USERRA, Congress clearly expressed its view that a returning veteran’s reemployment rights take precedence over such concerns. Metro does not question Petty’s physical qualifications; instead, it questions only whether his conduct during his military service would disqualify him from returning to service in the police department. But Petty’s separation from military service is classified as “under honorable conditions,” which Congress has made clear suffices to qualify him for USERRA benefits.

Thus, the police department's doubt, in good faith or not, in Petty's veracity about his military criminal history is irrelevant to his return to work.

According to the Court, the employer's intent in not restoring the employee to his prior position is also irrelevant to the reemployment claim:

It is important to note that Petty was not required to make any showing of discrimination in order to sustain either of his reemployment claims. ... Section 4313 states that any “person entitled to reemployment under section 4312” — which we have found Petty to be — “shall be promptly reemployed in a position of employment in accordance with the” order of priority outlined in § 4313(a)(2). Thus, the express terms of § 4313 make its application contingent only on the prerequisites of § 4312, none of which include a showing of discrimination.

This case is significant for employers who deal with returning military personnel. It sets out a clear policy in favor of returning military personnel, and their absolute right to reinstatement if they simply meet the bare requirements of the statute. If the employer has a doubt in the employee's veracity, the employer's only option, under this case, is to reinstate the employee and then terminate after the fact for "just cause" if the employer verifies its doubts.

Next week, we'll take a look at the Court's handling of Petty's USERRA discrimination claim.

The real cost of paid sick leave is staggering

The National Federation of Independent Businesses has commissioned a study to calculate the real cost of paid sick leave to Ohio. The results:

• 75,000 lost jobs.

• 20% of the job losses to hit businesses with 20 or fewer employees.

• $1.17 billion in costs to Ohio employers each year.

• $9.4 billion in lost sales to Ohio businesses over the next 4 years.

Source: Cleveland.com.

Argument that FMLA does not prohibit retaliation falls on deaf ears at court of appeals

When a company is caught making a bad employment decision, they come to us, their lawyers, to bail them out. Bryant v. Dollar General Stores (6th Cir. 8/15/08), presents one such example. Dollar Stores fired Martha Bryant, who testified that her supervisor told her she was being fired "[b]ecause of your health, I don’t think you can do the job."

Faced with what one can safely call bad facts, Dollar Stores got creative. It argued, both to the trial court and on appeal, that the FMLA does not prohibit retaliation against an employee who takes FMLA leave. The 6th Circuit correctly rejected that argument, and held that the FMLA does, in fact, allow for retaliation claims:

Any "right" to take unpaid leave would be utterly meaningless if the statute’s bar against discrimination failed to prohibit employers from considering an employee’s FMLA leave as a negative factor in employment decisions. Interpreting § 2615(a)(2)'s ban on discrimination in a manner that would permit employers to fire employees for exercising FMLA leave would undoubtedly run contrary to Congress's purpose in passing the FMLA. ...

Dollar General's reading of the statute would essentially render the FMLA a nullity. Their interpretation would require us to believe that—despite including statutory provisions granting eligible employees the "rights" to take up to twelve weeks of unpaid leave in a twelve-month period and to be restored to their prior positions or equivalent positions upon their return—Congress wished to erect no obstacle to prevent employers from terminating employees who exercise their newly granted "rights." In enacting the FMLA, Congress plainly stated that "the purpose of this Act" included establishing a right for "employees to take reasonable leave for medical reasons." 29 U.S.C. § 2601(b). Interpreting the language in § 2615(a)(2), which bars employers from discriminating against employees, in a manner that would permit employers to terminate employees for taking qualifying medical leave is fundamentally inconsistent with the clear, unambiguous purpose of the FMLA.

There are two lessons to take from this case, aside from the common sense legal rule it announces. Lawyers are not superheroes. We cannot do the impossible, although we often try for our clients.

Five reasons why I'm against the Healthy Families Act

As most know, the Healthy Families Act paid sick leave mandate guarantees seven days of paid sick leave each year to employees who work at least 30 hours a week and a pro-rated number of days to employees working less than 30 hours in any workplace with at least 25 employees. Who can argue against paid time off from work? It's a benefit that most employees would love to have.

If employees dig deeper, however, they will realize that the Healthy Families Act, while attractive on its face, is not the cure-all they need for their families. In fact, it will cause more short and long term damage to Ohioans' jobs than lacking a few paid days off per year.

1. Requiring employers to add paid sick leave is a threat to pay, benefits and jobs. The proposed mandate imposes significant added costs on employers, who in turn will be forced to look elsewhere to make up the difference. Other benefits, pay, and even jobs will be on the chopping block as businesses try to find the money to pay for sick leave. What good is paid sick leave if employees can no longer afford the health insurance that covers their sick family members because employers increase employees' contributions to counterbalance the cost of mandated sick leave?

2. Even employers who already offer paid sick leave will be seriously penalized by this proposal. This proposal allows employees to take sick leave with little or no advance notice in increments as small as an hour or less. How will you feel if you have to cover for an employee who goes home, with pay and without notice, because he or she has an upset stomach? Moreover, this unannounced leave poses a serious threat to safety-sensitive operations like hospitals, nursing homes and day-care facilities.

3. This mandate will brand Ohio as a job-killer. Ohio is suffering through its worst economic period in decades. This mandate will make Ohio the only state in the union with a mandated paid sick leave law, significantly driving up the cost of doing business when we can least afford it. Some Ohio companies will leave for less expensive states while companies in other states will dismiss Ohio as a potential location for expansion. In short, this mandate will kill economic development at a time when we need more jobs, not fewer jobs. What good is paid leave is there are no jobs left in which to use it?

4. The increased cost of paying for sick leave will result in more expensive goods and services. High oil prices has already increased the costs of many goods and services. While employers in the short term will need to cut benefit packages to pay for this mandate, the long-term result will be increased costs of goods and services, as businesses need new ways try to cover the cost of paid sick leave.

5. This proposal interferes with the established relationship between employers and employees at some of the nation’s most successful businesses. Many companies now operate under long-standing policies that provide employees with good pay and benefits in exchange for work arrangements that ensure a continued high level of production. This proposal guts the employer-employee relationship and threatens the production stability achieved during years of mutual cooperation.

Governor Strickland's efforts to broker a deal between business and union leaders appears to have failed. Unless the unexpected happens, the Healthy Families Act will be on November's ballot. It is important to keep these ideas in mind when considering this mandate, and not simply get caught up in the sex appeal of a few paid days off per year.

WIRTW #43

A quick thank you to everyone who helped make Monday's Blawg Review #172 a huge success - those who sent in suggested links and those who graciously linked to the post and helped drive traffic. Now, onto what I've been reading the rest of the week.

The Connecticut Employment Law Blog writes on the difficulty of predicting litigation costs at the start of an employment case.

The Delaware Employment Law Blog lists the top 10 reasons employers should screen their job applicants.

BLR's HR Daily Advisor presents another top 10 list, reasons why HR documentation fails in court.

WorkplaceHorizons reports on the Workplace Religious Freedom Act, which would amend Title VII by modifying the definition of "religion"and requiring employers to make an affirmative effort to reasonably accommodate the religious practices of employees.

The Labor and Employment Law Blog gives some advice for employers to consider in the use of GPS tracking devices.

The FMLA Blog summarizes Santacrose v. CSX Transportation, an 11th Circuit decision which held that an employer satisfied its duty to reasonably accommodate a disabled employee by permitting him to take intermittent FMLA leave.

The HR Capitalist asks whether your HR employees would violate HIPAA to see celebrities' medical records.

The Trial Technologists View reports on his recent use of technology to help an employer present its case in a sex discrimination trial.

Even California thinks paid sick leave is a bad idea

California is uniformly thought of as the most liberal employment law state. It is often the test ground for new employment laws and theories. Yet, paid sick leave could not even make the grade in the Sunshine Golden State. According to the Angeles Times, California's paid sick leave measure died in its legislature:

A state bill to guarantee paid days off for sick workers died Thursday amid opposition from business lobbyists and lawmaker concern that the benefit was too costly.

The bill would have granted employees of small companies in California up to five days of paid sick leave each year. Workers at larger firms could take up to nine days a year. ...

Small businesses and their lobbyists who fought the sick-leave measure said they were relieved that it failed. They estimated that the bill would cost 370,000 jobs in California and would burden employers with $4.6 billion in new costs over a five-year period.

The bill "unfairly presumed that small-business owners are able to provide paid sick leave and don't want to," said John Kabeteck, executive director of the National Federation of Independent Businesses. "That couldn't be further from the truth. The fact is that many want to but simply can't afford it." ...

If the proposal had become law, California would have been the first state in the nation to provide universal paid sick leave. But it would have eroded the state's ability to attract new employers, said state Chamber of Commerce President Allan Zaremberg. Ma's proposal was high on the influential business lobby's annual list of "job killer" bills.

Do these themes sound familiar? Ohio's legislature has already rejected the Healthy Families Act. California has now done the same. If California, whose economy is much more robust than Ohio's, is concerned that a paid sick leave mandate will erode that state's ability to attract businesses, what will the same measure mean for Ohio?

Presented by Kohrman Jackson & Krantz

Stupidest employee ever?

The above video is of a Xenia, Ohio, Burger King employee who not only thought it was a good idea to take a bath in the restaurant's utility sink, but then went one step further and posted it on YouTube. Cleveland.com reports that Burger King has fired all of the employees involved in the incident. It also released a statement that it had sterilized the sink, disposed of all kitchen tools and utensils used in the incident, and is retraining the staff in health and sanitation procedures.

A few points.

1. I knew there was a reason why I don't like to eat fast food.

2. This story provides another example of the risks employees take when posting videos or pictures on social networking sites.

3. This story is also a good example of crisis management in the workplace. Burger King handled this situation properly. It fired everyone involved, and is retraining its remaining employees in health and sanitation. Any time a crisis rears its head, whether its sexual harassment, an employee taking a bath in a food preparation area, or something it is always a good idea to send the proper message and set expectations of future conduct through retraining.

A lesson in how not to handle a pregnant employee

"Being pregnant here - it's like wearing a scarlet letter 'P' on your chest," said Lori Ann DiPalo, 36, the MTA Bridges and Tunnels officer. The New York Daily News reports that DiPalo's physician certified the 10-week pregnant officer as fit for duty without restrictions. Nevertheless, she was stripped of her badge and gun and and banished to tollbooth duty.

A doctor for Bridges and Tunnels read DiPalo's file and decided she shouldn't carry a gun.

"When I asked why, they said they didn't want to risk abdominal injury or me having to use 'deadly physical force,'" she said.

So DiPalo - unarmed but in uniform - now stands in a bridge tollbooth from 11 p.m. to 7 a.m. collecting tolls. ...

In her six years as a peace officer, DiPalo has arrested frauds, drunken drivers and other people who had noright to be behind the wheel. She has dispatched officers, handled roll call and patrolled the vulnerable bases of various bridges and entrances to tunnels - considered key targets for potential terror attacks.

"I like my job. I want to work. My doctor said I can," she said.

This paternalistic decision making is exactly the type of employment practice the EEOC sought to combat in drafting its Enforcement Guidance on Unlawful Disparate Treatment of Workers with Caregiving Responsibilities. Per the EEOC:

Employers can also violate Title VII by making assumptions about pregnancy, such as assumptions about the commitment of pregnant workers or their ability to perform certain physical tasks. As the Supreme Court has noted, "[W]omen as capable of doing their jobs as their male counterparts may not be forced to choose between having a child and having a job." Title VII's prohibition against sex discrimination includes a prohibition against employment decisions based on pregnancy, even where an employer does not discriminate against women generally. As with other sex-based stereotypes, Title VII prohibits an employer from basing an adverse employment decision on stereotypical assumptions about the effect of pregnancy on an employee's job performance, regardless of whether the employer is acting out of hostility or a belief that it is acting in the employee's best interest.

This story illustrates an important lesson about the perceptions we hold, consciously or unconsciously, about certain classes of employees. DiPalo was benched out of apparent good intentions. Nevertheless, that decision is not one for the employer to make. It is a decision between the pregnant employee and her doctor. Once the doctor clears her to work, it is out of the employer's hands to say otherwise, even if it has the mother's and baby's best interests at heart.

Tell us something we didn't know - court holds that sex is a major life activity

"Disability" is a term of art under the ADA. To be legally "disabled" and entitled to the protections that the ADA provides, it is not enough to simply have a medical condition. That condition must substantially limit a major life activity. In Adams v. Rice (2nd Cir. 7/18/08) (decided under the Rehabilitation Act, the predecessor to the ADA, which prohibits federal agencies from engaging in employment discrimination against disabled individuals), the court was faced with an employee with stage-one breast cancer, which the court determined substantially limited her in the major life activity of sexual contact and romantic intimacy:

Beginning with the statute, we can easily conclude without resorting to the dictionary that engaging in sexual relations clearly amounts to an "activity" in any sense of that word. ... At the risk of stating the obvious, sex is unquestionably a significant human activity, one our species has been engaging in at least since the biblical injunction to "be fruitful and multiply." Genesis 1:28. As a basic physiological act practiced regularly by a vast portion of the population, a cornerstone of family and marital life, a conduit to emotional and spiritual fulfillment, and a crucial element in intimate relationships, sex easily qualifies as a "major" life activity. ...

Having decided that engaging in sexual relations qualifies as a major life activity, we next determine whether Adams has sufficiently alleged a substantial limitation on that activity. This is an individualized inquiry that focuses on Adams's own experience. ... According to Adams, her breast cancer treatment rendered her completely unable to engage in sexual relations. Due to the scarring from her mastectomy and breast reconstruction, her overall post-surgery physical appearance, lack of physical sensation, loss of libido accompanying her medication, or some combination of those factors, she claims that her "ability to enter into romantic relationships has been crippled indefinitely and perhaps permanently." ... Adams's breast cancer qualifies as a disability because it amounted to a physical impairment that substantially limited her in the major life activity of sexual relations.

The employment decision is this case just smells bad. Adams had passed both the written and oral examinations for the Foreign Service before finding out she had breast cancer. After her diagnosis and surgery, the State Department cleared her appointment, advising Adams that she had scored 7th out of the 200 applicants. The next day, Adams informed the State Department of her cancer. The State Department, in turn, withdrew her clearance. Thus, the court looked past the lack of any nexus between the employer's knowledge of the condition and the knowledge of the substantial limitation on a major life activity.

Perhaps the lesson to be learned is that when a case presents horrific facts, courts will sometimes find a way to rationalize a fair and just result. There is no doubt that Adams's cancer had no impact on her ability to do her job whatsoever, and yet it appears clear that is was entirely because of her diagnosis that the State Department pulled her foreign clearance and killer her application. In other words, if it looks like discrimination, and smells like discrimination, it probably is discrimination.

Study suggests trials too risky; are lawyers really to blame?

It is no surprise that nearly 90% of all civil cases settle before they ever get before a jury. The New York Times is reporting on a study by Randall L. Kiser, principal analyst at DecisionSet, a consulting firm that advises clients on litigation decisions, who wondered if the decision to proceed to trial and forego settlement is the correct one in the 10% of cases that are tried.

In a study to be published in the September issue of the Journal of Empirical Legal Studies, he concluded that plaintiffs are much better off taking the offer that is on the table instead of risking it all by going to trial:

That is the clear lesson of a soon-to-be-released study of civil lawsuits that has found that most of the plaintiffs who decided to pass up a settlement offer and went to trial ended up getting less money than if they had taken that offer.

"The lesson for plaintiffs is, in the vast majority of cases, they are perceiving the defendant’s offer to be half a loaf when in fact it is an entire loaf or more," said Randall L. Kiser. ...

Defendants made the wrong decision by proceeding to trial far less often, in 24 percent of cases, according to the study; plaintiffs were wrong in 61 percent of cases. In just 15 percent of cases, both sides were right to go to trial — meaning that the defendant paid less than the plaintiff had wanted but the plaintiff got more than the defendant had offered.

The article suggests that lawyers are to blame by not giving clients the proper advice. Our jobs, however, are not to make the decision for our clients whether to settle or try a case. In fact, it would be unethical to do so. Instead, our role is to provide our clients with as much relevant information as possible, lay out the risks and rewards inherent in the options, and let them make an informed decision. If we think they are making the wrong decision, our job is to try to persuade them to what we think the right decision is, until they either come around to our way of thinking, or we determine that they will not.

The article also suggests that lawyers are driven by high fees and not good results for their clients. I respectfully disagree. Clients are relationships, not cash cows that can be milked dry in every case. The best way to build such a relationship is not by draining every nickel from a client on every matter, but by being cost effective. Part of being cost effective is understanding when it is time to fish, and when it is time to cut bait.