New FMLA regulations are on their way

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

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

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

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

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

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

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

Changes to the medical certification process:

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

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

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

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

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

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

Changes to the meaning of “serious health condition”:

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

Other changes:

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

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

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

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

Do you know? Time off to vote on election day

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

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

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

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

Are there legal risks with smoking bans?

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

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

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

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

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

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

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

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

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

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

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

WIRTW #53

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

Work Matters discusses workplace vulgarity.

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

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

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

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

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

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

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

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

Is administrative exhaustion a statutory or jurisdictional requirement?

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

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

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

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

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

Cost cutting does not necessarily equate to age discrimination

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

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

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

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

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

 

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

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

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

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

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

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

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

A labor & employment civics lesson

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

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

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

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

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

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

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

Do you know? Ohio’s wage payment statute

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

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

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

(D) As used in this section:

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

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

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

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

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

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

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

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

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

WIRTW #52

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

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

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

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

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

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

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

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

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

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

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

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

Other highlights of interest to employers:

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

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

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

Think before you e-mail

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

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

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

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

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

[Hat tip: Lowering the Bar]

Do you know? Breastfeeding at work

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

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

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

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

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

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

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

Spurned employee loses retaliation lawsuit for lack of protected activity

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

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

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

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

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

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

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

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

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

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

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

WIRTW #51

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

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

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

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

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

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

HRWorld writes on working through cancer.

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

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

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

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

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

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

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

A call for the reform of ballot measures

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

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

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

Determining the 12-month period for FMLA leave

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

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

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

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

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

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

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

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

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

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

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

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

New Ohio minimum wage rate

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

WIRTW #50

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

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

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

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

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

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

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

A second opinion on terminating the chronic complainer

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Employment decisions based on tattoos are not discriminatory

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

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

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

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

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

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

Time off for religious holidays

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

WIRTW #49

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

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

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

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

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

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

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

BREAKING NEWS: President Bush signs the ADA Amendments Act

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

Discrimination verdicts rise 70% in one year

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

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

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

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

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

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

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

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

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

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

A rant about forms

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

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

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

'Tis better to be in federal court after all

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

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

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

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

[Hat tip: Legal Blog Watch]

WIRTW #48

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

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

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

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

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

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

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

A primer on intermittent FMLA leave

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

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

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

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

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

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

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

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

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

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

How is intermittent leave calculated?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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