WIRTW #63

If you check out only one other link this week, click over the Connecticut Employment Law Blog, where Dan Schwartz writes an Inauguration Day letter to President Obama on what he hopes to see for employers over the next four years.

In other Inauguration-related news, the Delaware Employment Law Blog shares some thoughts on work-life balance and Michelle Obama.

The Evil HR Lady answers a question on the pro-rating of exempt employees’ salaries based on the number of hours they work each week. If an employer prorates a salary based on the number of hours worked, the employee almost certainly isn’t exempt.

George’s Employment Blawg points out some common employment application mistakes.

The Word on Employment Law with John Phillips, with a nod to Execupundit, lists the top 7 reasons employees don’t go to HR. For what it’s worth, I’d re-rank the top 2 as fear of retaliation and fear of company bias.

LawMemo Employment Law Blog reports on the Supreme Court’s decision in Locke v. Karass, which held that a local union can lawfully charge nonmembers for national litigation expenses.

More lessons from children’s lit: Dr. Seuss

As either my wife or I do every night, our daughter was put to bed last night with a book (or four). On the list last night was one of my all time favorites, Green Eggs & Ham. As I was reading I got to thinking that given the adult themes Dr. Seuss weaved into his books, there must be some lessons for employers to take from his works. I came up with the following:

Horton Hears a Who teaches that employers should not ignore complaints by employees. If an employee raises a concern about harassment, it is best for the company to take the complaint seriously, investigate, and take whatever corrective action, if any, is necessary. It is far better to investigate and conclude that nothing is there than to ignore the complaint and have it blossom into a lawsuit.

And to Think That I Saw It on Mulberry Street, Dr. Seuss’s first children’s book, is about a boy who dreams up a wild story to tell his father when he gets some from a walk down Mulberry Street, but ultimately decides to simply tell him what he saw. For employers, the lesson is to deal openly and honestly with employees. Gossip runs rampant in every workplace, and it is better to quell rumors than to keep truths or even lie to employees. This lesson is especially relevant with the silent killer of card check union recognition potentially looming on the horizon.

The Cat in the Hat teaches that employers must know what it is the right time to cut bait with a troublesome employee.

Yertle the Turtle involves the king of the pond who commands the other turtles to stack themselves beneath him so that he can see, ignoring the turtles’ pleas for rest. The lesson for employers is to treat employees fairly.

The Sneetches, about shunning those who look different, teaches an important lesson about discrimination.

Finally, Fox in Sox teaches that sometimes you just have to have a little fun.

Unions should not bet on the EFCA as a sure thing

As President Obama was taking the oath of office, inside some office in some executive office building in Washington D.C., someone flipped a switch and turned on the new website for the White House. It is drastically different, as President Obama is becoming the first president to fully embrace the internet as a viable means to communicate with the public. It has all of the typical history, civics, and biographical information one has come to expect from the White House’s website. However, it also has extensive information on President Obama’s agenda for the next four years. You’ll find information on suggested changes to the FMLA and paid sick leave, proposed new laws to protect individuals from discrimination based on sexual orientation and gender identity, and his plan to stimulate the economy and create jobs.

What you will not find, though, is any mention of the Employee Free Choice Act. While it was featured prominently on Change.gov, the President’s transition website, it has been completely scrubbed from Whitehouse.gov. Perhaps this recent interview of President Obama by the Washington Post sheds some light on this curious omission:

Q: The Employee Free Choice Act - a timing question and a substance question: in terms of timing how quickly would you like to see it brought up? Would you like to see it brought up in your first year? In terms of substance, the bills that you talked about in your floor statement on the Employee Free Choice Act problems with bullying of [inaudible] people want to join unions. Is card check the only solution? Or are you open to considering other solutions that might shorten the time?

Obama: I think I think that is a fair question and a good one.

Here's my basic principal that wages and incomes have flatlined over the last decade. That part of that has to do with forces that are beyond everybody's control: globalization, technology and so forth. Part of it has to do with workers have very little leverage and that larger and larger shares of our productivity go to the top and not to the middle or the bottom. I think unions serve an important role in that. I think that the way the Bush Administration managed the Department of Labor, the NLRB, and a host of other aspects of labor management relations put the thumb too heavily against unions. I want to lift that thumb. There are going to be steps that we can take other than the Employee Free Choice Act that will make a difference there.

I think the basic principal of making it easier and fairer for workers who want to join a union, join a union is important. And the basic outline of the Employee Fair Choice are ones that I agree with. But I will certainly listen to all parties involved including from labor and the business community which I know considers this to be the devil incarnate. I will listen to parties involved and see if there are ways that we can bring those parties together and restore some balance.

You know, now if the business community's argument against the Employee Free Choice Act is simply that it will make it easier for people to join unions and we think that is damaging to the economy then they probably won't get too far with me. If their arguments are we think there are more elegant ways of doing this or here are some modifications or tweaks to the general concept that we would like to see. Then I think that's a conversation that not only myself but folks in labor would be willing to have. But, so that's the general approach that I am interested in taking. But in terms of time table, if we are losing half a million jobs a month then there are no jobs to unionize. So my focus first is on those key economic priority items that I just mentioned.

To read the tea leaves, no one should think that President Obama has softened his position on the EFCA as a matter of policy. He was an early supporter of it as a Senator, and it is fair to conclude that the ascension to the Presidency has not altered his ideology. However, he is a shrewd politician, and he must know: 1) that given the current state of the economy the timing is not right for the EFCA, and 2) the EFCA in its current form is too divisive to ever come out of Congress. In other words, the EFCA is off the table for now, but once the economic ship has been righted, look for this administration to push for a compromised, less controversial, Employee Free Choice Act.

[Hat tip: Connecticut Employment Law Blog and Workplace Prof Blog]

Reminder: It’s not too late to RSVP for KJK’s Breakfast Briefing

There is still time to RSVP for KJK’s inaugural Employment Law Breakfast Briefing: The Top 10 Labor & Employment Law Issues to Face Your Business in 2009. We’ll discuss topics such as the recent ADA Amendments, the new FMLA regulations, legislation President Obama is likely to sign in 2009, the crush of wage and hour litigation, and handling employee layoffs and terminations in a difficult economy. Help prepare your organization for these issues by spending a couple of hours of your morning with KJK’s Labor and Employment Law attorneys.

The seminar will be held Wednesday, January 28, 2009, at The Club at Key Center located at 127 Public Square, Cleveland, OH 44114. The agenda is as follows:

Presenters: Rob Gilmore, Alan Rauss, and Jon Hyman

Agenda
8:00-8:30 Breakfast
8:30-9:30 Presentation
9:30-10:00 Q&A

The event is free and parking will be provided.

If you are interested in attending, or for more information, please contact Andrea Hill, (216) 736-7234 or ach@kjk.com, by January 23, 2009.

Do you know? Ohio’s jury duty rules for employers

Do you know? Ohio has specific rules that govern how employers handle employees who are summoned for jury duty – Ohio Revised Code 2313.18.

Rule number 1 is simple. It is illegal for an employer to discharge, threaten to discharge, or take any disciplinary action that could lead to the discharge of any permanent employee summoned to serve as a juror, provided that the employee gives reasonable notice to the employer of the summons prior to the commencement of the employee’s service as a juror and if the employee is absent from employment because of the actual jury service.

Rule number 2, though, is counter-intuitive. It is illegal for an employer to require or even request an employee to use vacation time, or sick leave, or other paid time off for time spent responding to a jury duty summons, time spent participating in the jury selection process, or time spent actually serving on a jury.

Rule number 3 provides some relief for small businesses. If a company with 25 or fewer full-time employees (or their equivalent) has more than one employee summoned for jury duty within the same court term, the court must postpone and reschedule the service of the later-summoned employees.

Companies should take these rules seriously. Violations can be punished as contempt of court, and employees terminated in violation of this statute could pursue a wrongful discharge claim.

Drafting an appropriate social networking policy

According to a recent report published by the Pew Internet & American Life Project, the percentage of adults who use social networking sights such as MySpace, Facebook, and LinkedIn has more than quadrupled in the past four years – from 8% in 2005 to 35% in 2008. By age, the stats break down as follows:

• 18 – 24: 75%
• 25 – 34: 57%
• 35 – 44: 30%
• 45 – 54: 19%
• 55 – 64: 10%
• 65 & over: 7%

For American businesses, these numbers mean that a large quantity of workers have profiles on any number of social networking sights (yours truly included). They also mean that if your internet or technology policy does not cover the appropriate use of social networking and blogging you are leaving yourself potentially exposed for abuse, embarrassment, and potential liability. 

Let me offer a few thoughts on putting together a policy to cover employees’ use of social networking.

1. A blanket prohibition does not make sense. I am not a fan of draconian policies. They cause more harm than good. They are bad for morale, drive away quality employees, beg for violations, and hamstring employers into making personnel decision they might not otherwise want to make when the policy is violated. If the reality is that a large chunk of employees are social networking, employers should embrace this medium within reason.

2. Employees need to understand that with the ability to use social networking comes responsibility. If a profile can link someone to their place of employment, the employee cannot post anything that could potentially embarrass or otherwise reflect poorly on his or her employer. This policy is one of common sense. Posting where you went to college is acceptable, posting pictures of yourself drunk while in college is not.

3. Use while at work should be governed by a company’s general internet protocol. If a company permits limited personal use at work (which most should), then the same ability should be extended to employees’ social networking activities.

These types of policies are governed by one guiding principle – treat employees like adults and assume that they will return the favor until they prove otherwise.

[Hat tip: Delaware Employment Law Blog]

WIRTW #62

What are my contemporaries writing about this week? Let’s take a look.

George’s Employment Blawg and the National Law Journal both share their thought on whether recession-era juries will be good or bad to employers.

The HR Capitalist gives his opinion on whether fighting labor unions was good or bad for Starbuck’s corporate image.

The Pennsylvania Labor & Employment Blog provides a handy HR compliance checklist for the new year.

The Delaware Employment Law Blog continues its back to school course on the FLSA with a lesson on recordkeeping.

The Employment Law Blog answers why severance agreements always advise the employee to consult with an attorney.

Workplace Privacy Counsel breaks down privacy concerns in the new FMLA regulations.

KnowHR Blog reminds everyone that confidentiality is key during layoffs.

The Washington Labor & Employment Wire reports on two recent DOL opinion letters on wage and hour issues for tipped employees.

Human Rights in the Workplace discusses an interesting sex harassment case from our neighbors up north.

Tomorrow is “FMLA Day.” Is your company ready?

Tomorrow, January 16, is FMLA Day – the day the new FMLA regulations take effect. If a business is covered by the FMLA (it employs 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year), there are certain steps it should be taking to get ready for the changes.

1. Post the Revised FMLA Poster.

2. Distribute a revised FMLA Policy or make appropriate handbook amendments.

3. Take out of circulation old FMLA forms (Employer Response to Employee Request for FMLA Leave and Certification of Health Care Provider, for example), which are no longer legal to use.

4. Put into use the new form to notify employees of their FMLA eligibility, to be used within five business days of an employee’s request for FMLA leave or the employer’s other notice of the need for leave.

5. Put into use the two new medical certification forms, one for an employee’s own serious health condition, and the other for an employee’s family member’s serious health condition.

6. Put into use the new FMLA designation notice, which must be given to an employee within five business days after an employer has received sufficient information to determine whether an employee’s leave is covered by the FMLA.

7. Make sure that the appropriate forms are being used for military family leave – one for the certification of qualifying exigency and one the certification for a serious injury or illness of a covered servicemember.

8. Train all HR personnel, managers, and supervisors on the mechanics of the new FMLA regulations.

For more information on the key FMLA changes, you can review these earlier posts:

• Summary of new FMLA Regulations: 10 Key Changes.

• Summary of new FMLA Regulations: Military Family Leave.

• New FMLA Regulations: What do they mean to notice and designation obligations to employees?

Hooters sued for not hiring men

An alleged rejected male job applicant for a food server position at a Corpus Christi, Texas, Hooters has filed a class action sex discrimination lawsuit against the restaurant chain. He claims that Hooters refuses to even consider men for food server positions. According to the lawsuit:

Hooters attempts to circumvent the law by referring to its waiters as “Hooters Girls.” Hooters contends that since its food servers are Hooters Girls, males may not be employed in that role. Hooters is incorrect, since, in the stores, Hooters Girls’ primary function is to serve food and drinks. A male or female can perform this function and, therefore, Hooters is not entitled to the defense of bona-fide occupational qualification.

Because it is discriminatory on its face to refuse to hire an entire gender, Hooters will certainly rely on the “bona fide occupational qualification defense.” A BFOQ is a defense to discrimination based on age, sex, religion, or national origin (but, importantly, not race discrimination). It permits discrimination where the protected class (such as sex) is reasonably necessary to the normal operation of that particular business or enterprise. To qualify as a BFOQ, a job qualification must relate to the essence, or to the central mission of the employer’s business. A classic example of a BFOQ is safety-based mandatory retirement ages for airline pilots.

This case will largely hinge on the perception of the real nature of Hooters’ product – does Hooters sell sex or wings? If it’s the former Hooters win, the latter the plaintiff wins. The reasonable view is that Hooters sell wings by using the sex appeal of its servers. If this view prevails, then the plaintiff is probably out of luck.

If I was representing Hooters, I would advise it to give serious consideration to offering the plaintiff a position under the same conditions as it hires all of its female food servers. He would have to wear the same uniform and show off the same cleavage. His acceptance would show his lack of qualification, and his refusal it would show his true motivation for filing suit, while also likely cutting off his economic damages.

[Hat tip: Courthouse News Service, via Above the Law]

Do you know? “Comp” time in lieu of overtime

Do you know? Unless you are a state or local government, it is illegal to provide “comp” time in lieu of time-and-a-half for hours worked in excess of 40 in a work week.

Federal law requires that all non-exempt employees receive an overtime premium of one-half the regular rate of pay for all hours worked in excess of 40 in a given work week. To save on wages, some employers seek to provide overtime as “comp” time to employees. In other words, instead of paying an employee time-and-a-half for overtime worked, the employee would be paid the regular straight time rate, and receive an additional half-hour of paid time off to be banked and used in the future. Under the FLSA, this practice is illegal for private employers. It interferes with employees’ right to be paid their overtime premium.

For state and local governments, the FLSA has a specific provision that allows for the payment of comp time in certain circumstances, such as where it is provided for in a collective bargaining agreement or other agreement between the employer and employee.

For most employers, though, implementing a comp time program to skirt overtime obligations is a huge wage and hour no-no.

What do the recent ADA amendments really mean to employers?

A lot of ink has been spilled about the nuts and bolts of the amendments to the ADA. The amendments make some key fundamental changes to various definitions in the statute, such as to the definition of disability. So, for example, mitigating measures are no longer to be taken into consideration when determination whether an individual has a “disability.” (For more information on the ADA Amendments Act, see House overwhelmingly votes in favor of ADA Amendments Act of 2008).

Much of the ADA Amendments Act, though, is legal minutiae that may be of interest to employers litigating ADA lawsuits, but of little interest to employers running their businesses on a daily basis. Provided that job descriptions are up to date, supervisors are trained on reasonable accommodations and interactive processes, and employees are receiving appropriate accommodations, employers’ day-to-day experiences under the ADA should not change all that much.

So, what then will change? For businesses, the most significant change will be in the cost of defending ADA lawsuits. Most agree that the changes to the definition of disability will make it harder for employer to win dismissals of ADA cases on summary judgment. Because fewer cases will be summarily dismissed, more cases will go to juries for resolutions. This higher incidence of jury issues in ADA cases will increase both defense costs and settlement value in these cases. Because of the potential for increased costs, businesses should be prepared to be extra-vigilant in their handling of employees with potential disabilities.

WIRTW #61

What I’m Reading returns after an extended holiday break.

To follow up on my post from earlier this week on the Ledbetter Fair Pay Act, Michael Moore’s Pennsylvania Labor & Employment Blog comments on the record retention nightmare that this law would create for employers. Michael also has some good thoughts on compliance with the ADA Amendments Act.

In the wake of Boston College firing its head football coach after he accepted an interview with the New York Jets, Gruntled Employees has some thoughts on employee loyalty.

The Workplace Prof Blog reports on a recent NLRB decision that found an unfair labor practice from an attorney’s deposition questions.

With tongue firmly planted in cheek, LaborPains offers 10 New Year’s resolutions for labor union officials.

Where Great Workplaces Start gives us another list, the top 5 ways to be an HR hero in 2009.

The Cleveland Law Library Weblog reminds everyone that as of 1/1/09, Ohio’s minimum wage increased to $7.30 per hour.

Overlawyered brings the story of four Piqua, Ohio, employees who are suing their co-workers for their share of a $207 million Mega-Millions payout. Their claim: “The four said they were out of the office and unavailable to contribute to the office pool for the Dec. 12 drawing but allege an oral agreement that winnings would be shared whether workers happened to be around to contribute or not.”

The Word on Employment Law with John Phillips reminds us that some people simply have too much time on their hands. The evidence, an EEOC complaint alleging religious discrimination stemming from an employee’s use of “Merry Christmas” instead of “Happy Holidays.”

The ABA Journal reports on a Hooters Waitress, fired for having visible bruises courtesy of some domestic abuse, who won her unemployment claim.

The Delaware Employment Law Blog asks a very important question: Why don’t employers care about employees’ internet use?

Jottings By An Employer's Lawyer compares whether recession juries are good or bad for employers. I agree with Michael that large jury awards are usually fueled by anger against the employer and not sympathy for the employee. If this is true, then lawyers picking juries for the foreseeable future will want to try to weed out those potential jurors who have been affected by the recession and harbor anger against corporations as a result.

Maybe you’ve heard, but Wal-Mart recently settled almost all of its pending 76 wage and hour class actions for a staggering $640 million. The Wall Street Journal’s Law Blog suggests that Wal-Mart might have been motivated the Employee Free Choice Act and ponied up as a preemptive strike against unionization.

Meanwhile, World of Work argues that the Employee Free Choice Act may not be as done of deal as some other commentators are suggesting.

Another hot legislative issue, family and caregiver issues, will receive special attention during President Obama’s administration, according to Corporate Voices for Working Families.

Finally, the FMLA Blog reports on a case in which the court held that an employer’s honest suspicion of employee fraud justified its insistence for a second medical opinion.

Five “must haves” for your employee handbook

I’m in the process of drafting an employee handbook, which got me thinking – what are the policies that every handbook absolutely must contain? I came up with a list of the top five “must have” policies.

1. At-will employment disclaimer. I can’t imagine anything worse than an employee being able to successfully claim that an employee handbook creates a contract with the employer, or provides something on which the employee can reasonably and justifiably rely. This disclaimer should be in writing, both in the handbook and on a receipt that employees sign and is placed in their personnel files.

2. Anti-harassment. It’s impossible to take advantage of the Faragher-Ellerth affirmative defense for harassment liability without a policy of which employees can avail themselves.

3. No-solicitation. In light of the implications of the Employee Free Choice Act, it is vitally important to safeguard against non-business uses of company property. Any non-solicitation policy should cover written and oral solicitations, in addition to e-mail and computer systems.

4. Technology. A comprehensive technology policy guards against improper uses of e-mail and computer systems, limits personal uses of company property, tempers employees’ privacy expectations, and protects against potential harassment liability. A very versatile policy that no business should be without.

5. FMLA. If your company is covered by the FMLA, it is required to have an FMLA policy. The new regulations clarify this obligation.

Ledbetter Fair Pay Act likely to be first employment legislation of the Obama Presidency

According to Monday’s New York Times, Congressional Democrats are looking to fast-track the Lilly Ledbetter Fair Pay Act. This should not come as any surprise, given Ms. Ledbetter’s prominent speaking position at last summer’s Democratic convention.

Recall that in Ledbetter v. Goodyear Tire & Rubber Co., the Supreme Court ruled that in pay discrimination cases the federal statute of limitations begins to run when the pay-setting decision is made:

Current effects alone cannot breathe life into prior, uncharged discrimination.... Ledbetter should have filed an EEOC charge within 180 days after each allegedly discriminatory pay decision was made and communicated to her. She did not do so, and the paychecks that were issued to her during the 180 days prior to the filing of her EEOC charge do not provide a basis for overcoming that prior failure.

According to the Court, its narrow reading of the statute of limitations “reflects Congress’s strong preference for the prompt resolution of employment discrimination allegations through voluntary conciliation and cooperation.” Or, at least prior Congresses, as this Congress will certainly pass the Ledbetter Fair Pay Act.

This law will provide that a new and separate violation occurs each time a person receives a paycheck resulting from “a discriminatory compensation decision.” Thus, each paycheck that reflects an alleged discriminatory pay decision will start a new and distinct limitations period. 

Businesses should brace themselves for longer statutes of limitations for pay discrimination claims. Once the Fair Pay Act becomes law, it will be more difficult for companies to know at what point in time a pay decision can no longer be challenged. This law’s Congressional supporters have spoken of the need for fairness. Fairness, however, works both ways, both for employees and employers. A perpetual statute of limitations for pay discrimination claims fosters a perceived fairness for the former at the expense of the latter.

Do you know? The FLSA’s Administrative Exemption

Do you know? What does it take for an employee to qualify under the Fair Labor Standards Act’s Administrative Exemption?

To qualify for the administrative employee exemption, all of the following tests must be met:

• The employee must be compensated on a salary or fee basis (as defined in the regulations) at a rate not less than $455 per week;

• The employee’s primary duty must be the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer’s customers; and

• The employee’s primary duty includes the exercise of discretion and independent judgment with respect to matters of significance.

“Primary duty” means the principal, main, major or most important duty that the employee performs, with the major emphasis on the character of the employee’s job as a whole.

Work “directly related to management or general business operations” includes, but is not limited to, work in functional areas such as tax; finance; accounting; budgeting; auditing; insurance; quality control; purchasing; procurement; advertising; marketing; research; safety and health; personnel management; human resources; employee benefits; labor relations; public relations; government relations; computer network, Internet and database administration; legal and regulatory compliance; and similar activities. It’s work directly related to assisting with the running or servicing of the business, as distinguished from working on a manufacturing production line or selling a product in a retail or service establishment. It also covers employees acting as advisors or consultants to their employer’s clients or customers.

The exercise of discretion and independent judgment involves the comparison and the evaluation of possible courses of conduct and acting or making a decision after the various possibilities have been considered. It implies that the employee has authority to make an independent choice, free from immediate direction or supervision. Factors to consider include, but are not limited to:

• whether the employee has authority to formulate, affect, interpret, or implement management policies or operating practices;
• whether the employee carries out major assignments in conducting the operations of the business;
• whether the employee performs work that affects business operations to a substantial degree;
• whether the employee has authority to commit the employer in matters that have significant financial impact; and
• whether the employee has authority to waive or deviate from established policies and procedures without prior approval.

“Matters of significance” refers to the level of importance or consequence of the work performed.

Information on other FLSA exemptions is also available:

• The Executive Exemption.

Next week, we'll examine the Professional Exemption.

Blawg Review of the Year nominations

For the uninitiated, Blawg Review is a weekly compilation of the prior week’s best posts from the legal blogosphere. It’s peer-reviewed, which means that each week a different blogger hosts the carnival. I had the pleasure of hosting Blawg Review #172 in August, which means that I’ve earned the right to vote for Blawg Review of the Year 2008. In chronological order, here are my votes:

Blawg Review #147, hosted by Rush Nigut of Rush on Business, for teaching me more than I ever thought I could know about Iowa’s geography.

Blawg Review #153, hosted by Declarations and Exclusions, because it’s always fun to talk like a pirate.

Blawg Review #164, hosted by cearta.ie, for transporting me back to the best vacation I’ve ever taken, my 2 weeks in Ireland.

Blawg Review #191, hosted by Likelihood of Confusion, for all of the little Jewish boys and girls who never had a Rankin-Bass holiday special to call their own.

Announcing the KJK Employment Law Breakfast Briefing

On Wednesday, January 28, 2009, Kohrman Jackson & Krantz will hold its inaugural Employment Law Breakfast Briefing: The Top 10 Labor & Employment Law Issues to Face Your Business in 2009.

Spend part of your morning with KJK’s Labor and Employment Law attorneys to learn about the emerging issues that will challenge your business and your employee relations in the coming year – the Employee Free Choice Act, the new FMLA regulations, the ADA Amendments Act, and other key issues. 2009 will likely be the most demanding year employers have faced in decades. Get a leg up on all of these changes in an informal discussion with KJK’s Labor & Employment team.

Date: Wednesday, January 28, 2009
Time: 8:00-8:30 Continental Breakfast
          8:30-9:30 Presentation
          9:30-10:00 Q&As
Place: The Club at Key Center, 127 Public Square, Cleveland, OH 44114

If you are interested in attending, or for more information, please contact Andrea Hill, (216) 736-7234 or ach@kjk.com, by January 23, 2009.

Presented by Kohrman Jackson & Krantz

A few predictions for 2009

Since I ended 2008 with a look back at the top stories of the past year, I thought I’d start 2009 with a look forward at what to expect in the new year.

1. Sexual Orientation will Become a Protected Class.

Under current federal and Ohio law, it is not illegal to discriminate in employment on the basis of sexual orientation. President Obama will seek to change this omission. One need only look to Change.gov, President Obama’s administration’s website, to glean that he will target the elimination of discrimination based on sexual orientation and gender identity:

The Obama-Biden Transition Project does not discriminate on the basis of race, color, religion, sex, age, national origin, veteran status, sexual orientation, gender identity, disability, or any other basis of discrimination prohibited by law.

The Employment Non-Discrimination Act would add sexual orientation and gender identity to the litany of classes protected from discrimination in employment by Title VII. Note that in the 6th Circuit, discrimination on the basis of real or perceived gender identity is already illegal as sex discrimination. Eliminating discrimination on the basis of sexual orientation should pass with ease. The facet of the ENDA that focus of gender identity is much more controversial, but at least in Ohio, is largely unnecessary in light of Smith v. Salem. Nevertheless, the ENDA should become law this year.

2. Family Responsibility Issues Will Receive Special Attention from President Obama.

In September, Governor Strickland and Senator Sherrod Brown persuaded union leaders to remove the Ohio Healthy Families Act from November’s ballot. If passed, it would have required all businesses with 25 or more employees to grant all employees seven paid sick days per year, with a prorated amount for part-time employees. The same measure will be introduced on a national level in this Congress, it will pass, and President Obama will sign it into law.

President Obama also favors making certain key changes to the FMLA. He will seek to loosen the definition of “employer” from 50 or more employees to 25 or more employees. He will also seek to expand the categories of covered leave to include elder care, children’s school activities, domestic violence, and sexual assault. It is a safe bet that some of these FMLA amendments will become law at some point in the next four years, if not this year.

3. Employment Litigation Will be Hot in 2009.

2009 will test my theory that the strength of the economy is inversely proportional to the number of lawsuits filed against employers. By all accounts, the economy will continue to slump well into 2009. As more employees lose their jobs, whether by layoff, plant closures, or good old fashioned terminations, they will look to the OCRC/EEOC and the courts for help. I expect age discrimination, WARN Act, and wage and hour claims to fuel this litigation boom.

4. The Employee Free Choice Act will Face an Uphill Battle.

A Senate filibuster blocked the EFCA on its last consideration. As the Democrats will not reach the magic super-majority of 60 Senators necessary to block a Republican filibuster, this controversial law will face stiff opposition. Despite all of the doom and gloom prognostications, I do not believe that the EFCA will become law in its current form. The only way it would ever defeat a Republican filibuster is if it was presented in a compromised, watered-down form.

Nevertheless, it is not too early for businesses to start planning for the possibility of card-check union recognition. The best defense against a labor union is a combination of positive employee relations, an open door for employees to air grievances, and a fair, even-handed management. If the EFCA becomes law, it will too late to fight a union once the cards are signed. The only way to combat an organizing drive, especially one that you do not know about, is to proactively make your work environment one that employees will not want to unionize.

Top 10 Labor & Employment Law Stories of 2008: Nos. 2 and 1

Today brings us to the end of our countdown, and the top two labor and employment law stories of the year. Each of these stories will have far reaching implications into 2009:

2. The economic downturn and the proliferation of layoffs and shutdowns: It’s no secret that our economy is in the toilet, and will continue to be at least in the short term. Companies have been and will continue to shed employees and operations as they try to stay afloat or fail. Unemployment insurance systems will continue to be stressed to the max. As employers continue to feel economic pressure, acronyms like OWBPA and WARN will continue to be on the tips of their tongues and at the core of employees’ fears. This story very well could climb to number in 2009 as the economy is predicted to continue to suffer, and employment lawsuits are expected to continue to rise.

1. The election of President Obama: In the last two years, the Democratic majorities in the House and Senate have proposed a cornucopia of new labor and employment laws – Employee Free Choice Act, Employment Non-Discrimination Act, Ledbetter Fair Pay Act, Arbitration Fairness Act, Working Families Flexibility Act, Independent Contractor Proper Classification Act, RESPECT Act, Equal Remedies Act, Civil Rights Act of 2008, and the Health Families Act. While jump starting the economy should preoccupy the new administration, we cannot overlook that Senator Obama sponsored most if not all of these bills. With the Democrats in charge of the White House and Capitol Hill for the first time in 14 years, there is a real chance that we will see the most sweeping changes to our nation’s labor and employment laws in decades. This story is number one in 2008, and very well could repeat as the top story of 2009, 2010, 2011, 2012, and beyond.

Top 10 Labor & Employment Law Stories of 2008: Nos. 4 and 3

Today brings us numbers 4 and 3 of our countdown of the year’s top labor and employment law stories:

4. President Bush signs the ADA Amendments Act: The ADA Amendments, which go into effect Jan. 1, will undo several employer-friendly Supreme Court decisions that limited who could qualify as “disabled” under the statute. These amendments will make it easier for an employee to qualify for protection under the ADA, and make it harder for employer to get cases dismissed on summary judgment on the issue of whether an employee is disabled.

3. President Bush enacts new FMLA provisions for military leave, and the Department of Labor publishes new FMLA regulations: Thanks to the National Defense Authorization Act for FY 2008, the FMLA now provides for additional unpaid leave for family members to care for a servicemember with a serious illness or injury suffered in the line of duty, and for employees to take FMLA leave for certain emergencies stemming from a family members’ active duty. In a few weeks, the DOL’s regulations interpreting these new provisions and reinterpreting the original FMLA will go into effect. Covered employers will have to re-learn the FMLA in light of these new regulations, which, while being employer-friendly, significantly change how the FMLA operates. An already confusing statute is going to become that much more confusing, at least in the short-term.

Top 10 Labor & Employment Law Stories of 2008: Nos. 6 and 5

Our year-end countdown the year’s top 10 labor and employment law stories continues with numbers 6 and 5:

6. The Ohio Supreme Court holds that retained memories can qualify as trade secrets: In Al Minor & Assocs. v. Martin, the Ohio Supreme Court held that a customer list compiled by a former employee strictly from retained memory can form the basis for a statutory trade secret violation. According to the Court, information that constitutes a trade secret does not lose its character by being recreated from memory. In doing so, it not only greatly expanded the scope of statutory trade secret claims, but also expanded the class of employees against whom a non-competition agreement can be held to be enforceable.

5. The Ohio Healthy Families Act crashes and burns as its supporters pull it off the November ballot: The Ohio Healthy Families Act, if passed, would have provided 7 annual days of paid sick leave to employees of all Ohio employers with 25 or more employees. Thanks to an 11th hour compromise struck by Gov. Strickland and Sen. Brown, the SIEU agreed to remove this measure from November’s ballot. Had this measure been on the ballot, it would have likely passed, making Ohio the first state to mandate such a paid benefit. The last thing Ohio’s economy needs is a disincentive for businesses to call our state home. Thankfully, common sense prevailed.

Top 10 Labor & Employment Law Stories of 2008: Nos. 8 and 7

We continue our year-end countdown of 2008’s top 10 labor and employment law stories with numbers 8 and 7:

8. Wage and hour lawsuits continue to dominate federal court filings: Few if any companies do wage and hour perfectly. Save yourself the headache of defending a class action for misclassified employees or off-the-clock work and make 2009 the year your business audits its wage and hour practices.

7. The Genetic Information Nondiscrimination Act becomes law: In May, President Bush signed GINA into law, one of several significant statutory employment law changes during the year. GINA adds “genetic information” to the list of classes of employees protected by the federal employment discrimination laws. It makes it unlawful for an employer to fail or refuse to hire, or to discharge, any employee, or otherwise to discriminate against any employee with respect to the compensation, terms, conditions, or privileges of employment of the employee, because of genetic information with respect to the employee. Expect the EEOC to issue regulations interpreting this statute at some point in 2009.

Top 10 Labor & Employment Law Stories of 2008: Nos. 10 and 9

A couple of Sundays ago, the New York Times suggested that more and more companies will be flat out shutting down for the last week of the year as a cost-savings move:

Normally, the unfortunate people who are stuck at work during the molasses-slow week between Christmas and New Year get to know its spooky charms. Corridors and conference rooms lie empty, the telephone on the desk sits as quiet as a headstone.

But this year, a week that is usually just carefree and unproductive is likely to be positively dead. Companies in industries like high technology and manufacturing, pressed to the wall by the recession, are forcing workers to take the week off for accounting reasons as well as to reduce lighting and heating bills. Other people will also be taking the week off for the first time — not to dash off to ski at Killington, Vt., but because they lost their jobs.

I normally don’t like to be labeled a bandwagon jumper, but I happily will be joining this trend by taking off for the remainder of the year. Let me take this opportunity to wish everyone Happy Holidays (whatever your holiday of choice happens to be) and Happy New Year. I’ll see everyone back with fresh content in 2009.

Fear not, however, I will not leave everyone without something to read between now and Jan. 1. For the rest of the year, I will be counting down the top 10 labor and employment law stories of the year. We start today with numbers 10 and 9:

10. The 6th Circuit recognizes a claim for associational retaliation: In Thompson v. North Am.Stainless, the 6th Circuit expanded Title VII retaliation liability to cover adverse actions taken against those "who are so closely related to or associated" with employees who engage in protected activity. The question of how close is close enough is still open, and subject to lots of debate.

9. The 6th Circuit sets a very low bar to survive summary judgment in a mixed motive discrimination case: In White v. Baxter Healthcare Corp., the 6th Circuit held that the traditional McDonnell Douglas burden-shifting framework does not apply to the summary judgment analysis of a Title VII mixed-motive claim. Instead, to survive a motion for summary judgment, a Title VII plaintiff need only show: (1) that an adverse action occurred, and (2) some evidence that the protected class was a motivating factor for that adverse action. This is a very low threshold to meet, and will lead to fewer summary judgments being granted in this circuit.

Do you know? The FLSA’s Executive Exemption

Do you know? What does it take for an employee to qualify as exempt under the Executive Exemption of the Fair Labor Standards Act? Yesterday, we examined a $35.5M verdict in a wage and hour collective action over certain management-level employees misclassified under the FLSA’s executive exemption. As that case illustrates, job titles do not determine exempt status. For an exemption to apply, an employee’s specific job duties and salary must meet all the requirements of the DOL’s regulations.

Today, we’ll examine exactly what it takes for an employee to qualify under the executive exemption. Over the next several weeks, we’ll also look at exemptions for administrative, professional, computer, and outside sales employees.

To qualify for the executive employee exemption, all of the following tests must be met:

• The employee must be compensated on a salary basis (as defined in the regulations) at a rate not less than $455 per week;

• The employee’s primary duty must be managing the enterprise, or managing a customarily recognized department or subdivision of the enterprise;

• The employee must customarily and regularly direct the work of at least two or more other full-time employees or their equivalent (such as one full-time and two part-time employees, or four part-time employees); and

• The employee must have the authority to hire or fire other employees, or the employee’s suggestions and recommendations as to the hiring, firing, advancement, promotion or any other change of status of other employees must be given particular weight.

“Primary duty” means the principal, main, major or most important duty that the employee performs, with the major emphasis on the character of the employee’s job as a whole.

“Management” includes, but is not limited to, activities such as interviewing, selecting, and training of employees; setting and adjusting their rates of pay and hours of work; directing the work of employees; maintaining production or sales records for use in supervision or control; appraising employees’ productivity and efficiency for the purpose of recommending promotions or other changes in status; handling employee complaints and grievances; disciplining employees; planning the work; determining the techniques to be used; apportioning the work among the employees; determining the type of materials, supplies, machinery, equipment or tools to be used or merchandise to be bought, stocked and sold; controlling the flow and distribution of materials or merchandise and supplies; providing for the safety and security of the employees or the property; planning and controlling the budget; and monitoring or implementing legal compliance measures.

“Customarily and regularly” means greater than occasional but not necessarily all the time. For example, work normally done every workweek is customarily and regularly, but isolated or one-time tasks are not.

Factors to be considered in determining whether an employee’s recommendations as to employment decisions are given “particular weight” include whether it is part of the employee’s job duties to make such recommendations, and the frequency with which such recommendations are made, requested, and relied upon. An employee’s recommendations may still be deemed to have “particular weight” even if the employee is not the ultimate decisionmaker.

Make a list and check it twice – FLSA exemptions

At the end of last year, I made a list of New Year’s resolutions for everyone. Number 4 on that list was, “Audit your wage and hour practices.” Morgan v. Family Dollar Stores (11th Cir. 12/16/08) provides a not-so-subtle reminder that it’s never too late to make good on this resolution.

In Morgan, the 11th Circuit affirmed the trial court’s $35,576,059.48 judgment against Family Dollar in a wage and hour collective action. The class consisted of 1,424 store managers, who claimed that Family Dollar improperly classified them as exempt and paid them a salary, while requiring 60 and 90 hours of work each week and refusing to pay overtime. According to the plaintiffs, store managers were managers in name only, and actually spend the almost all of their time performing manual labor, such as stocking shelves, running the cash registers, unloading trucks, and cleaning the parking lots, floors, and bathrooms. 

If you need any better reason why a company should not ignore these wage and hour issues, consider that the court found Family Dollar’s violation to be willful, which extended the statute of limitations (and therefore the damages) from two to three years. Family Dollar’s ignorance of it’s employees’ exemption loomed large in the willfulness finding:

Family Dollar raises several challenges to the jury’s willfulness finding. All fail. First, the evidence, detailed above, was legally sufficient to support the jury’s finding that Family Dollar’s FLSA violations were willful. For example, the Plaintiffs presented testimony from Family Dollar executives that it never studied whether the store managers were exempt executives. Executives also testified that Family Dollar’s company-wide policy was that store managers were exempt from FLSA overtime requirements, but they had no idea who made that policy.

FLSA exemptions are usually fact specific and almost always a judgment call. Because it is a subjective decision, classifications may not always be correct. However, if you have a rational basis for making the decision (such as hiring an outside professional to analyze and classify employees) and implementing a policy, you may not always win the exemption battle, but you will put your business in a much better position to avoid a finding of willfulness.

Come back tomorrow for a closer look at the executive exemption, and what factors businesses should be considering in classifying managerial employees as exempt or non-exempt.

WIRTW #60

What I’m Reading This Week will be taking the rest of the year off to recharge it’s batteries. After today’s column, this feature will return January 2 with a special round-up of the best from the blawgosphere's holiday season. As for this week’s most interesting posts…

An Op-Ed in today’s Wall Street Journal by University of Chicago law professor Richard Epstein poses that the Employee Free Choice Act is unconstitutional.

The Connecticut Employment Law Blog provides some pointers on handling your workforce in bad weather.

The Pennsylvania Labor & Employment Blog has some more information on wage and hour issues with year-end bonuses.

The Delaware Employment Law Blog gives some tips on avoiding problems at office holiday parties when alcohol is involved.

The Labor and Employment Blog suggests who should be conducting workplace investigations.

World of Work reports on a big win for Starbucks in a class action lawsuit that challenged its employment application as unlawful.

Law.com draws some employment law lessons from the presidential campaign.

HR World points out that the number of employment lawsuits filed is inversely proportional to the health of the economy.

George’s Employment Blawg has the top 10 things someone doesn’t want to do during a job interview.

Finally, two bits of positive news on the Employee Free Choice Act:

• EFCA Updates reports that Rev. Al Sharpton has come out against the EFCA.

• Also from EFCA Updates comes news that at least a few Democratic Senators are starting to have doubts about the EFCA.

I’ll be back next week with the latest from the world of labor and employment law, in addition to starting my countdown of the top 10 labor and employment law stories of 2008.

Presented by Kohrman Jackson & Krantz

An early holiday gift from the Department of Labor – Revised FMLA forms for the new FMLA regulations

Hot off the presses from the Department of Labor are the following documents to use when the new FMLA regulations go into effect on January 16, 2009, linked for your holiday enjoyment:

• A revised Family and Medical Leave Act (FMLA) poster.

• Certification of Health Care Provider form for an Employee’s Serious Health Condition (WH-380E).

• Certification of Health Care Provider form for a Family Member’s Serious Health Condition (WH-380F).

• The DOL’s Notice of Eligibility and Rights and Responsibilities form (WH-381).

• Designation Notice to Employee of FMLA Leave (WH-382).

• Certification of Qualifying Exigency for Military Family Leave (WH-384

• Certification for Serious Injury or Illness of Covered Servicemember for Military Family Leave (WH-385).

For information on what all these forms mean and how they should be put into practice beginning on Jan. 16, click on over to New FMLA Regulations: What do they mean to notice and designation obligations to employees?

“Ugly” as a protected class? Let’s get real.

Let’s review the currently protected classes. Under the current state of the law, it is illegal to discharge, to refuse to hire, or otherwise to discriminate with respect to hire, tenure, terms, conditions, or privileges of employment, or any matter directly or indirectly related to employment because of: race, color, sex, religion, national origin, ancestry, age, disability, genetic information, military status, and veteran status. I am fairly confident that 2009 will add sexual orientation, and possibly gender identity, to this list.

According to Workplace Prof Blog, some researchers are beginning to suggest that we also add “ugly” to this list:

Researchers, including lawyers and economists, have begun examining ugliness, suggesting that the subject has been marginalized in history and that discrimination against the unattractive is a silent, widespread injustice…. "Beauty and the Labor Market," a study published in the American Economic Review in 1994, estimated that unattractive men and women earn five to ten percent less than those considered attractive or beautiful, and that less attractive women marry men with less money. Another study conducted by Tanya Rosenblat, an associate professor of economics, said "people who are physically attractive might develop better communication skills because the tendency is that from an early age they get more attention from all their caregivers, including their own mothers onward. The conclusion: discrimination based on looks occurs across occupations….

Steadily playing off of insecurities and implications, Dr. Synnott states: "Beautiful people are considered to be more intelligent, sexier, and more trustworthy.  And this implies that ugly people are assumed to be less trustworthy and less intelligent."

He notes that while few current laws prohibit employment discrimination based on lack of attractiveness, at least two California cities (San Francisco and Santa Cruz) have such a law on their books.

Let’s get real for a second – nothing is more subjective than beauty. Voltaire said, “Ask a toad what is beauty....; he will answer that it is a female with two great round eyes coming out of her little head, a large flat head, a yellow belly and a brown back.’” If we engaged this folly and legislated ugliness as a protected class, whose eyes would be the judge and jury?

Folly aside, this notion nevertheless serves a good reminder that we, as employers, should be making employment decisions based on ability and merit, not innate characteristics over which a person has no control, whether it’s a protected class such as race or an unprotected class such as attractiveness. Consistent merit based decisions not only serve as the best defense against lawsuits, but also save us from the notion that we need more protected classes.

How to avoid a discrimination lawsuit in 5 easy steps

1. Don’t change your explanation about why an employee was fired mid-stream while in the midst of defending a discrimination claim.

2. Don’t refuse to assign meaningful work to a Muslim employee while at the same time keeping non-Muslim employees busy, or fire an employee for alleged lack of work, while at the same hiring others to perform the same exact assignments.

3. Don’t suggest to others that you speak over the phone about the employee, which suggests that you are trying to avoid a written record that can later be used against you.

4. Don’t tell people on 9/11 that “those people don’t belong
   here.”

5. Finally, and most importantly, don’t refer to a meeting about a Muslim employee’s supposed poor performance and termination as a “sand-nigger pile on.”

One Chicago law firm, in Hasan v. Foley & Lardner LLP (7th Cir. 12/15/08), failed to follow this advice. Remarkably, the district court, when faced with this mosaic of evidence, granted summary judgment to the employer. The 7th Circuit, however, reversed and sent the case back for trial:

Mr. Hasan submits that the facts in the record, while possibly weak proof of discrimination individually, together would allow a jury to infer that Foley terminated his employment because he is Muslim and of Indian descent…. Those facts include Simon’s and Hagerman’s anti- Muslim comments, Mason’s warning to Jaspan about Mr. Hasan’s religion, the suspicious timing of the downturn in his hours and evaluations following September 11, one partner’s testimony that Foley fired no other associates for economic reasons and did well financially in 2001 and 2002, the Business Law Department’s treatment of its other Muslim associates and Foley’s shifting justifications for firing Mr. Hasan….

The record shows that Simon attended the meeting at which the partners decided to fire Mr. Hasan and that he participated in that decision. That others were also involved in making that decision does not make Simon’s participation irrelevant…. There is also evidence in the record that Simon’s criticisms at that meeting incited anti-Muslim and racially charged commentary from other partners. Vechiola’s description of the meeting as a “sand-nigger pile on” suggests as much, as does Pfister’s comment that Simon had targeted Mr. Hasan just as he had targeted another lawyer, albeit unsuccessfully. Viewing the facts in the light most favorable to Mr. Hasan, the record would allow the rational inference that Simon not only participated in the decision to fire Mr. Hasan but also may have instigated it.

This case might not necessarily break new legal ground, but it is a good reminder that even those that should know better sometimes slip, and how a lapse in judgment can come back to bite an employer.

[Hat tip: MMMG Law Blog]

Do you know? Ohio’s Civil Theft Statute

Do you know? Ohio has a specific statute that allows for one to sue civilly for theft. Not only can one recover the amounts stolen, but also three-times that amount as liquidated damages. Because of this penalty provision, Ohio’s civil theft statute is a powerful tool to combat employee theft.

Ohio Revised Code 2307.61 is Ohio’s civil theft statute. It permits recovery for theft and willful damage of property. In addition to compensatory damages for the value of the property stolen or damaged, it also allows for the recovery of three times the value of the property as liquidated damages.

Moreover, it the amount at issue is less than $5,000, the owner of the stolen property is also entitled to recover costs (which includes the cost the written demand for payment, postage, and court costs) and attorneys’ fees if the following three conditions are met:

1. A written demand, via certified mail, for payment must be made at least 30 days prior to filing suit.

2. The written demand must identify the alleged theft offense, inform that suit will only be brought if repayment is not made within 30 days, and advise that the suit could result in a potential judgment that could include costs and attorneys’ fees. 

3. Repayment is not made or an agreement to repay is not reached within the 30-day period.

Pursuing a claim under this statute is not without some risk. If the defendant (for example, the employee accused of theft) prevails, he or she is entitled to recover the cost of defending the civil action plus any compensatory damages that may be proven. Because of this risk, it is important that an employer considering pursuing a civil theft claim has conducted a full investigation and is reasonably confident in its right to recover.

‘Tis the season… for employee theft

According to last week's Wall Street Journal Career Journal, theft by  employees may be reaching epidemic proportions.

In the wake of the recession, more businesses are facing a growing financial threat: employee theft. New research shows that employers are seeing an increase in internal crimes, ranging from fictitious sales transactions and illegal kickbacks to the theft of office equipment and retail products meant for sale to customers.

Employers suspect that workers are pilfering from them to cope with financial difficulties at home or in anticipation of being laid off.

What's more, it's often the most trusted workers who are committing the thefts….

Employers are hot targets for theft because workers “know their systems, controls and weaknesses, and they can bide their time waiting for the right opportunity,” says Mark R. Doyle, president of Jack L. Haynes International Inc., a provider of workplace crime-prevention services based in Fruitland Park, Fla.

Consider the following statistics:

• 20% of employers say workplace theft has become a moderate to very big problem recently.
• 18% have noticed a recent rise in monetary theft among employees, such as fraudulent transactions or missing cash.
• 24% have detected an increase in stolen nonmonetary items, such as retail products and office supplies.
• 25% of all reported internal frauds are committed by senior-level employees with an average tenure of 7½ years.
• In 2007, 1 out of every 28 employees was caught stealing, an 18% increase from the prior year.

What can employers do to curb this disturbing trend? I suggest a five-step attack:

1. Communicate: Employees need to know that theft of any nature and in any amount simply will not be tolerated. This message should be delivered in writing through the employee handbook or a stand-alone corporate ethics policy. Also, it is incumbent upon the highest levels of management to set a good example for all employees to follow. The best defense against employee theft is fostering an environment of ethics and integrity.

2. Investigate: Proper investigation requires having the tools in place to detect theft or fraud and acting swiftly when misconduct is discovered. Proper tools include surveillance cameras, tracking devices, and routine audits of books and records. Also, if something just doesn’t look right (has an employee started submitting unusually large expense reports without sufficient documentation, for example?) ask questions. Don’t just assume that a good employee cannot succumb to temptation. A company may also want to consider bringing in a third-party to conduct the investigation, depending on the sophistication and amount of the theft.

3. Document: Once a theft is detected, a company has to act swiftly to complete a full investigation. This investigation includes interviewing any potential witnesses and gathering all necessary documents to support to a case against the employee. Documentation is key both to support a termination decision and to go after an employee for restitution. Companies should also consider filing a police report in cases of employee theft.

4. Terminate: No other form or discipline should be an option. Theft is a serious offense. It represents a total breakdown of trust between a company and an employee. If an investigation concludes that an employee has stolen from the company, that employee should be immediately fired.

5. Litigate: Employers have two choices – filing a civil lawsuit to recover the stolen funds or property, or seeking criminal prosecution. Companies can run these options in tandem, but in my experience overburdened prosecutors’ offices are less likely to pursue an indictment if a civil case is pending, since the company already has a way to be made whole. In considering whether the pursue legal action against an employee, companies have to balance the potential deterrent effect on current employees versus the potential negative effect on employee morale. Because of these concerns, litigation will not be appropriate in all cases of employee theft.

Tomorrow, we’ll examine one of the best tools Ohio employers have to combat employee theft through the courts, Ohio’s civil theft statute.

WIRTW #59

I had planned on doing an elaborate post on the inherent risks to employers from holiday parties. The Connecticut Employment Law Blog and the Pennsylvania Labor & Employment Blog beat me to it. Click on through for some timely and helpful tips on managing liability risk at your holiday party.

Staying on the holiday theme, the Delaware Employment Law Blog asks if employees with families receive better treatment at work during the holiday season.

A few posts this week follow-up on earlier posts of mine:

• Last month I reported on Anheuser-Busch, an NLRB decision that held that an employer can discipline employees for misconduct even though the employer learned of the misconduct by unlawful means (in that case, security cameras that the employer installed without bargaining with the labor union. Workplace Prof Blog reports that the D.C. Circuit has affirmed the NLRB’s decision.

• Workplace Prof Blog also reports that the Republic Windows sit-in strike has ended, with each employee receiving eight weeks’ severance, all accrued vacation pay, and two months’ health care. For my earlier thoughts on this issue, go to Union sit-in illustrates WARN Act.

• Last week’s WIRTW talked about the 10 things you should never put in an email. Roger Matus’ Death by Email follows up on his earlier list by giving us a checklist of 36 things to consider before hitting send.

The HR Lawyers Blog retorts that the bad economy has shifted employment lawyers from the employment agreement business into the severance agreement business. If you’re considering severance pay, also consider some severance benchmarking data presented by Compensation Force.

Workplace Privacy Counsel presents the first federal appellate court to uphold a termination based on content found on MySpace.

George’s Employment Blawg tells how to provide reasonable accommodation for employees with hearing impairments.

World of Work reports that Walmart has settled its Minnesota wage and hour case for $54.25 million.

The Evil HR Lady points out the dangers of operating without a written leave policy.

Finally, I present what has become a weekly roundup of Employee Free Choice Act posts:

• LaborPains.org tells us that the SEIU has set aside an astounding $10 million to “unelect” any politician that changes his or her position on the EFCA. I’ll probably have more thoughts on this issue next week.

• Workplace Horizons presents President Obama’s top 10 list for labor (are you surprised that the EFCA is number 1?).

More on “do overs”: the unconditional offer of reinstatement

As I mentioned on Monday (Do-overs), an unconditional offer of reinstatement can be a useful tool to minimize or even avoid liability in a discrimination lawsuit. To be effective, however, the offer must truly be unconditional. In other words, the reinstatement offer should:

• Return the employee to the former position, with the same responsibilities, compensation, and benefits.

• Make clear that the employee is free to continue pursuing any and all claims against the company, and that the employee is not required to sign a release or give up any rights as a condition of reinstatement.

• Emphatically state that the employer will neither retaliate nor tolerate any retaliation against the employee.

• Create an open door for the employee to discuss any concerns about returning to work, or issues that arise after the employee returns to work.

Once the offer is made, the employer must be prepared to take the employee back if the offer is accepted. Thus, before making such an offer, it is important to consider if, in fact, an employer really and truly wants the employee back. Was the employee a good, worthwhile, productive employee that provided an asset to the company? Or, did the employee have serious performance, conduct or attendance problems? Are managers and supervisors wiling to take the employee back despite the lawsuit? Are you reasonably confident that the employee will not be retaliated against, and is the company prepared to act quickly and deal decisively with anyone found to have retaliated?

These questions must be considered before deciding whether to offer to bring back an ex-employee. Otherwise, the potential of limiting back pay and front pay may not be worth the cost of brining back an unworthy employee.

Union sit-in illustrates working of WARN Act

Last week, Republic Windows and Doors, a Chicago manufacturer, announced that because Bank of America had cancelled its line of credit, it would be closing immediately. Since last weekend, its employees have been staging a mass sit-in inside the factory in protest the company’s lack of notice of the shut-down. They claim that federal law entitled them to a minimum of 60 days’ notice. (See In Factory Sit-In, an Anger Spread Wide). The employees claim that they will continue to occupy the factory until a resolution is reached.

The federal law that spurred the workers protest is the Worker Adjustment and Retraining Notification Act, which is more commonly known as the WARN Act. The WARN Act generally applies to any employer with 100 or more employees, not counting employees who worked less than 6 months in the last 12 months and employees who work an average of less than 20 hours a week.

It requires a covered employer to give affected employees 60 days’ notice of any plant closing or mass layoff. It is common misconception that WARN requires severance pay. In fact, all it requires is 60 days’ notice to affected employees. However, an employer can bypass the notice by paying employees in lieu of the WARN notice. For example, if a plant shuts down immediately without any notice, all affected employees would be entitled to 60 days’ pay in lieu of WARN notice.

The Republic Windows story raises an important exception under the WARN Act: the unforeseeable business circumstances exception. When the closing or mass layoff is caused by business circumstances that were not reasonably foreseeable at the time that 60-day notice would have been required (i.e., a business circumstance that is caused by some sudden, dramatic, and unexpected action or conditions outside the employer's control), 60 days’ notice under WARN is not required. Instead, the employer is only required to give as much notice as is practicable in light of the unforeseen circumstances.

There is little doubt that Republic Windows is relying on the unforeseeable business circumstances exception for its lack of WARN notice to its employees. Despite (or maybe because of) the current credit crunch, a court would most likely not require Republic Windows to accurately predict Bank of America’s actions. The issue for Republic Windows and its employees will most likely hinge on two facts: when did it first learn that its specific line of credit was in jeopardy, and how long could it have continued operating before shutting its doors. Public and political pressure may end up winning the day for the employees, but my best guess is that Republic Windows is probably on right side of the unforeseeable business circumstances exception.

More Employee Free Choice Act ads

Business organizations have decided to fight fire with fire, putting out their own advertisements on the dangers of the Employee Free Choice Act. Below is a very clever advertisement put out by UnionFacts.com, a non-profit union watchdog organization:

Click here for more information on the Employee Free Choice Act.

Do you know? Child labor rules

While I was watching Rudolph the Red Nosed Reindeer with my family and something struck me. The elves making toys for Santa looked awfully young. Is it possible that the North Pole lacks child labor laws? Is this how Santa keeps his costs down? After all, he needs toys for hundreds of millions, if not billions, of children.

Do you know? What are Ohio’s child labor laws?

Ages 14 and 15

• When school is in session: i) they cannot work between the hours of 7 p.m. and 7 a.m.; ii) they cannot work for more than 3 hours on any school day; and iii) they cannot work more than 18 hours during any school week

• When school is out of session: i) they cannot work between the hours of 9 p.m. and 7 a.m.; ii) they cannot work more than 8 hours per day; and iii) they cannot work more than 40 hours per week.

Ages 16 and 17

• When school is in session: i) 11 p.m. before a school day to 7 a.m. on a school day (6 a.m. if not employed after 8 p.m. the previous night); and there are no limits on hours worked per day or week.

• When school is not in session, there are no limits on starting or ending times, or hours worked per day or week.

Unlike adult workers, all minors are required to have a 30 minute uninterrupted break when working more than 5 consecutive hours.

Prohibited Occupations

All minors are prohibited from working in the following occupations:

• Slaughtering, meat-packing, processing rendering
• Operation of power driven slicers; bakery machines; paper product machines; metal forming; punching or shearing machines; circular and band saws; guillotine shears; woodworking machines
• Manufacture of brick, tile, and kindred products
• Manufacture and storage of chemicals or explosives, or exposure to radioactive and ionizing radiation substances
• Coal mining and mining other than coal
• Logging and saw milling
• Motor vehicle, railroads, maritime , and longshoreman occupations
• Excavation operations, wrecking, demolition, and shipbreaking
• Power-driven and hoisting apparatus equipment
• Roofing operations

Only 14 and 15 year olds are prohibited from the following occupations:

• Manufacturing and warehouse occupations (except office and clerical work)
• Public messenger services occupations
• Work in freezers; meat coolers and all preparations of meats for sale (except wrapping, sealing labeling, weighing, pricing and stocking)
• Transportation; storage, communications, public utilities; construction and repair
• Work in boilers or engine rooms; maintenance or repair of machinery
• Outside window washing from window sills, scaffolding, ladders or their substitutes
• Cooking, baking, operating, setting up, adjusting, cleaning, oiling, or repairing power-driven food slicers, grinders, food choppers cutters, baker type mixers
• Loading or unloading goods to and from trucks, railroad cars or conveyors
• Work with cars and trucks involving pits, racks, or lifting apparatus
• Inflation of tires mounted on rimes equipped with a removable retaining ring
• For-profit door-to-door employment (unless the employer is registered with the Ohio Dept. of Commerce Division of Labor & Worker Safety)