The worst television show ever? FOX to air corporate layoffs

From the network that brought us reality TV gems such as The Littlest Groom, Who Wants To Marry a Millionaire, and My Big, Fat, Obnoxious Fiance comes the next awful idea to grace our airwaves: Someone’s Gotta Go. If you’ve yet to hear about this atrocity, here’s the premise of this in production FOX show, courtesy of Juju Chang and Kelly Hagan at ABCnews.com:

The show will highlight a small business that needs to downsize because of the economy, but instead of the bosses deciding who gets the axe, co-workers must choose who among them has to go. Workers will have to defend themselves, justifying their work habits, all leading to a group discussion to determine who gets dumped.

To help make their decision, employees will have access to each others' usually private records including budgets, human resources files and salaries.

This show is just plain wrong. First, the set-up has myriad legal risks for the employer. Having co-workers instead of management make the decision will not insulate the employer from potential liability. Risks abound for coworker harassment, coworker retaliation, or discrimination courtesy of the cat’s paw. Moreover, the inevitable release that employees will have to sign to appear on the show might insulate the producers from liability, but likely will not protect the employers. (As a side-note, I wonder if the show runners are indemnifying participating employers from any lawsuits that result from the layoffs).

More fundamentally, however, I question the corporate integrity of any company that would agree to take part in this freak show. Except in the most egregious of cases, terminating an employee is the worst thing an employer has to do. Why turn this into public humiliation? Maybe the winner in all of this is the laid-off employee, cast free from a company callous enough to televise his or her termination to millions.

[Hat tip: The Business of Management and Overlawyered]

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Do you know? Employees have no right to access to personnel files

There is no law in Ohio that requires an employer to grant an employee access to his or her personnel file. There are, however, two key exceptions: medical records and wage and hour records.

1. Medical Records

Ohio Revised Code 4113.23(A) covers employees access to their own medical records. It provides:

No employer … shall refuse upon written request of an employee to furnish to the employee or former employee or their designated representative a copy of any medical report pertaining to the employee. The requirements of this section extend to any medical report arising out of any physical examination by a physician or other health care professional and any hospital or laboratory tests which examinations or tests are required by the employer as a condition of employment or arising out of any injury or disease related to the employee’s employment.

Thus, employees have a right to see the medical records from a physical examination that is required for employment or stemming from a job-related injury or disease. Employers can charge employees for these records, up to 25 cents per page.

2. Wage & Hour Records

Ohio Revised Code 4111.14(G) covers employees access to their own wage and hour records. It requires an employer to provide the following information to an employee or person acting on an employee’s behalf (union representative, attorney, or parent, guardian, or legal custodian) upon request:

1. Name

2. Home address;

3. Occupation;

4. Rate of pay, which means an employee’s base rate of pay or annual salary, but does not include bonuses, stock options, incentives, deferred compensation, or any other similar form of compensation;

5. Each amount paid, which means the total gross wages paid to an employee for each pay period; and

6. Hours worked each day, which means the total amount of time an employee works during a day in whatever increments an employer uses for its payroll purposes (except for exempt employees).

An employer may require that the request be in writing, signed by the employee, notarized, and that it reasonably specifies the particular information being sought. The employer cannot charge the employee for this information, and typically an employer has 30 days to produce the records following a request..

It is not a bad idea for employers to review their current handbooks and other policies to check whether they allow for the disclosure of these two classes of information.

Guarding against defamation liability

Courtesy of my friends at PointofLaw.com is the story of the dangers that lurk when distributing information about an employee’s termination.

Staples fired one of its salesmen, Alan Noonan, after an internal audit discovered he had deliberately falsified expense reports. The day after his termination, Staples’s Executive Vice President sent the following email to all of the company’s North American employees:

It is with sincere regret that I must inform you of the termination of Alan Noonan’s employment with Staples. A thorough investigation determined that Alan was not in compliance with our [travel and expenses] policies. As always, our policies are consistently applied to everyone and compliance is mandatory on everyone's part. It is incumbent on all managers to understand Staples[’s] policies and to consistently communicate, educate and monitor compliance every single day. Compliance with company policies is not subject to personal discretion and is not optional. In addition to ensuring compliance, the approver’s responsibility to monitor and question is a critical factor in effective management of this and all policies.

Noonan sued Staples for defamation based on the content of the email. Even though the contents of the email were truthful, the court, in Noonan v. Staples, Inc. (1st Cir. 2/13/09), still found that Noonan could proceed to trial on his claim because a jury could conclude that the email was sent with what is called “actual malice.” The court focused on three key facts:

1. In his 12 years with Staples, it was the first post-termination email in which the Executive Vice President ever referred to the terminated employee by name.

2. The EVP could have sent the email to cover his own misfeasance in failing to detect widespread expense report abuses.

3. Because many of the employees who received the email did not travel, they had no reason to be advised of the travel policy or its enforcement.

Ohio law grants employers a privilege to make truthful disclosures about an employee’s job performance. Ohio’s statute, however, has an exception for the disclosure of information “with the knowledge that it was false, with the deliberate intent to mislead the prospective employer or another person, in bad faith, or with malicious purpose.” The Noonan case provides insight in how to avoid an inference of a malicious purpose when giving job performance information.

1. Consistency. If your company has a policy or practice in what types of information it discloses, stick to that policy or practice. Giving more than what is customary for your business, even if truthful, could lead one to conclude that some ulterior motive to harm motivated the disclosure of additional information.

2. Narrowness. Information should only be disclosed on a need-to-know basis. If information is sent to people who have no reason to receive it, one could infer a motive to smear one’s reputation, even if the information is truthful.

As PointofLaw.com makes clear, “in the down economy, workplace defamation lawsuits are on the rise.” Being truthful and consistent, in what you say about employees, and narrow in to whom you say it, is the best defense against such a claim.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

WIRTW #74

Yay! I’m number 71, alphabetically, on the Delaware Employment Law Blog’s list of the top 100 employment law blogs. Seriously, this list is a great resource if you are looking for more employment law information. Take a few minutes to add a few of my blogging colleagues to your feed reader. If you don’t know what a feed reader is, Problogger has a very good explanation. Then, add my feed also.

This week brings us some thoughts on social networking in the workplace. Rob Radcliff at Smooth Transitions gives some ideas on appropriate social networking policies. Nolo’s Employment Law Blog reminds everyone to behave on spring break lest embarrassing pictures end up online. Molly DiBianca at the Delaware Employment Law Blog has some thoughts on whether Facebook makes employees more productive.

The Trade Secrets Blog reports that the Ohio Supreme Court will decide whether standardized tests qualify as a school district’s trade secrets.

Alaska Employment Law itemizes ways plaintiffs can prove pretext in discrimination cases.

ScotusBlog analyzes the Supreme Court’s opinion in 14 Penn Plaza, LLC v. Pyett, which held that mandatory arbitration clauses in collective bargaining agreements can cover statutory discrimination claims.

Michael Maslanka’s Work Matters, on how to handle violent employees.

Michael Fox at Jottings By An Employer’s Lawyer looks at a 1st Circuit case holding that a mother of triplets was entitled to a jury trial on her sex discrimination claim based on her employer’s stereotyping of working moms.

Finally, the EFCA Report (PDF download) has put together an excellent white paper on what lies ahead for the EFCA in Congress.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Preparing for the golden age of labor and employment law

As an employment lawyer, my practice has a lot of different aspects. I’m a counselor, helping clients tame workplace issues before they become problems. I’m a drafter, writing employee handbooks, policies, contracts, and forms. I’m an investigator, questioning employees involved in harassment and other complaints. I’m a trainer, guiding workforces, managers, and supervisors through the alphabet soup that makes up our labor and employment laws. I’m a negotiator, trying to amicably resolve employee disputes before they become fights. And, I’m a litigator and  trial lawyer, navigating companies through our state and federal courts and administrative agencies.

All these roles will be tested over the next several years. A liberal Congress, a Democrat President, and the worst economic downturn in 80 years have combined to create a world of problems for our nation’s struggling employers. The Ledbetter Fair Pay Act has already increased pay discrimination liability, and myriad layoffs have heightened the risk for age and other discrimination lawsuits. If Congress has its way, over the next several years the Employee Free Choice Act will make it significantly easier for unions to organize and bargain favorable first contracts, the FMLA will be expanded to cover smaller employers, and paid sick leave will become a reality. For these reasons, we may be at the dawning of the golden age of labor and employment law.

In light of all of these changes, it is critical that businesses not be caught unprepared. According to April 8th’s Wall Street Journal, “U.S. businesses, fearful of rising union influence and a crackdown by the Obama administration on workplace practices, are scrambling for legal advice and training.” Luckily for my readers, KJK is offering some of this advice and training for free. On May 13, my colleagues and I will present How to Stay Union Free in a Union-Friendly World, a free seminar on how to best position your non-union business to stay that way. Feel free to contact me for more information, or if you would like to attend.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Announcing the next KJK Breakfast Briefing: How to Stay Union Free in a Union-Friendly World

Join KJK’s Labor & Employment attorneys to learn How to Stay Union Free in a Union-Friendly World. Capitol Hill is gearing up for one of its most contentious fights in decades as Congress takes sides over the Employee Free Choice Act. If passed, the EFCA will radically alter our labor laws by making it much easier for unions to be certified (whether the change in law authorizes certification by way of a simple majority of signed authorization cards and without a secret ballot election, by an election after a much shortened period of time for the employer to campaign against the union, or otherwise). Even if the EFCA never becomes law, there are a lot of lessons to learn about how best to position your business to keep unions out.

We will not only discuss what the EFCA is and how it will affect your business, but also offer some essential tips on how to effectively manage your workforce to make union penetration less likely, no matter what form the new law ultimately takes. This free Breakfast Briefing is crucial for any business that is and wants to remain union free.

• Date: Wednesday, May 13, 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 (on-site parking is free)

If you are interested in attending this free seminar, or for more information, please contact Andrea Hill, (216) 736-7234 or ach@kjk.com, by May 11, 2009.

Errata: Ohio does prohibit cost-shifting for pre-employment medical exams

Famed columnist William Safire once said, “Nobody stands taller than those willing to stand corrected.” I hope he’s right, because I feel pretty small right now.

Last week I stated that Ohio law is silent on the issue of whether an employer can charge an employee for a pre-employment medical exam. As it turns out, I was wrong. A colleague directed me to Ohio Revised Code 4113.21, entitled, “Employee shall not be required to pay cost of medical examination.” It provides:

No employer shall require any prospective employee or applicant for employment to pay the cost of a medical examination required by the employer as a condition of employment.

In other words, Ohio employers are absolutely forbidden from passing on the cost of pre-employment medical examinations to employees.

The penalty provision of this statute is also worth taking a look at:

Any employer who violates this section shall forfeit not more than one hundred dollars for each violation.

Assuming a routine physical costs more than $100, what is an employer’s incentive not to violate this provision by passing the cost onto employees and paying whatever lesser fines may come later?

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Do you know? Legal risks in considering cancer survivors for employment

Cancer survivors are 37% more likely to be unemployed than their healthy counterparts. (See Cancer Survivors Struggle to Find Jobs, Study Finds). There are two likely explanations for this disparity: some cancer survivors are simply not healthy enough to return to work, while others become too expensive to employ because of the added health care costs. It is the treatment of the latter category that concerns me as an employment lawyer.

Pre-screening applicants with a history of cancer from consideration for positions raises two huge red flags: disability discrimination based on a record of an impairment or perceived impairment, and genetic information discrimination. Refusing to hire an applicant based solely on a history of cancer would almost certainly violate both the Americans with Disability Act (and its Ohio counterpart), and possibly the Genetic Information Nondiscrimination Act.

The best defense against this type of claim is not to gather medical information at the application or interview stage. Yet, even when an employer tries to avoid the topic, it can innocently arise. For example, when someone has a two-year gap on his or her resume, it is necessary to ask, “What were you doing for the two years you weren’t working?” For someone who was away from the workforce because of cancer treatments, the answer likely will reveal information that could lead to an inference of discrimination if the applicant is not hired. The best defense against these problems is two-fold:

1. Meaningful and effective training of interviewers so that they do not fall into these potential traps. For example, instead of asking, “Why weren’t you working?” ask, “What did you do during your gap in employment to keep your skills current?” The latter question will not only avoid the potential disclosure of medical information, but also provide some useful information about the applicant’s skill-set.

2. Ensuring that the best, most qualified person is hired to fill any vacancy, regardless of medical history and gaps in employment.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

More on laying off the protected

Last month I provided some tips on how to properly layoff employees who happen to fall into a protected class. Last week, in Bell v. Prefix, Inc., the 6th Circuit helped drive home my point, and teaches some important lessons on proper layoff techniques.

Jonathan Bell claimed that Prefix included him a layoff in retaliation for a recent FMLA leave of absence he took to care for his dying father. Between July 22 and August 5, 2005, Bell took 3½ days of approved FMLA leave while his father was hospitalized for heart surgery. At the same time, Prefix’s new general manager began an ad hoc termination of employees to save money during a substantial downturn in business. Bell’s termination came August 8, just two weeks after the start of his FMLA leave and three days after his last FMLA absence.

In reinstating Bell’s FMLA retaliation claim for a jury trial, because a reasonable jury could conclude that Prefix held a retaliatory motive in terminating Bell. The court focused its decision on the collective strength of five pieces of evidence:

1. When Bell had to leave work after receiving an emergency call from the hospital, the general manager belittled him in front of his co-workers, and in a raised voice “accused him of ‘abandoning’ Prefix when there was work to be done.”

2. In discussing Bell’s termination, the general manager commented that he needed to work more hours.

3. The general manager’s comments about poor work quality are directly contradicted by Bell’s only written performance review.

4. The close temporal proximity between Bell’s FMLA leave and the termination.

5. The lack of any formal structure for the RIF, or the use of any objective process or criteria in selecting employees for inclusion.

This case teaches employers some very important lessons in how to conduct a RIF.

1. It is important to have some structure for the RIF, whether it is written criteria (objective or subjective), past performance, ranking of employees, or some other basis. A rationale that can be justified is needed for why one employees was RIFed over another.

2. Discussions about who will or will not be included should be kept to a minimum. This point rings even more true if the decision is solely based on some objective criteria.

3. Assume that any comments that can in any way be twisted to appear discriminatory or retaliatory will come back to haunt you in later litigation.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

WIRTW #73

After last week’s glut of posts on the Employee Free Choice Act, I bring you this week’s EFCA-free WIRTW.

This week the Supreme Court held oral argument in Gross v. FBL Financial Services, which will hopefully give some much needed clarity on the proper standard for obtaining a mixed-motive jury instruction in discrimination cases. For details and analysis, read Marcia McCormick’s thoughts at the Workplace Prof Blog. Dan Schwartz at the Connecticut Employment Law Blog shares his insight as well.

Mark Toth at the Manpower Employment Blawg reports on the illegality of a policy that prohibits employees from working overtime while on light duty.

The Word on Employment Law with John Phillips provides some additional thoughts maternity and layoffs.

Eric Welter at the Laconic Law Blog reports on a poll finding that the FMLA is HR’s biggest headache.

Where Great Workplaces Start looks into the future and makes some predictions about the future of HR.

Christopher McKinney at the HR Lawyer’s Blog and Diane Pfadenhauer at Strategic HR Lawyer discuss careless twittering.

Finally, two blogs give their takes on The Office and the Michael Scott Paper Company: Rob Radcliff at Smooth Transitions and Michael Elkton at Trading Secrets.

 

 

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Think before having employees sign that arbitration agreement

Yesterday, the Supreme Court issued its opinion in 14 Penn Plaza v. Pyett, which enforced a provision in a collective-bargaining agreement that required union members to arbitrate statutory discrimination claims. My fellow bloggers have already provided some thoughtful analysis of this opinion – Michael Moore at the Pennsylvania Labor & Employment Blog, Michael Fox at Jottings By An Employer’s Lawyer, and Richard Bales at the Workplace Prof Blog.

The bigger question for employers to think about, though, is whether arbitration of employment claims makes business sense. Companies and their lawyers often use mandatory arbitration of employment claims for two reasons: (1) as a cost-effective alternative to court; and (2) as an insurance policy against runaway jury verdicts.

In my experience, however, arbitration can prove just as costly as court. More and more arbitrators are allowing plaintiffs to engage in discovery that is nearly as expansive (and expensive) as what is permitted by trial courts. Additionally, employers have to add into the equation the cost to file the claim, which the employer usually shares. With the American Arbitration Association, these fees can run anywhere from $950 to a cap of $65,000. These fees do not include the arbitrators’ time, which often exceeds $500 per hour, and includes all pre-hearing conferences, discovery and motion practice, the actual hearing time, and the drafting of the opinion. It is not hard to see how in many cases the defense costs associated with arbitration outweigh defense costs in a traditional court proceeding.

Given these high costs, there is a much better alternative to hedge against a runaway jury verdict – contractual jury trial waivers. A properly drafted jury trial waiver accomplishes the following goals:

1. No appeal rights are lost. Judicial review of arbitration awards is very narrow. An appellate court, however, will have a much wider scope of review of a bench trial.

2. A bench trial eliminates the risk of a runaway jury awarding obscenely high damages.

Before asking your employees to sign that arbitration agreement, consider whether there are other viable alternatives to reach the same goal, such as a jury trial waiver.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Poor communication of layoffs raises significant risks

According to CNN, French workers are holding management hostage over their refusal to negotiate severance:

Hundreds of French workers, angry about proposed layoffs at a Caterpillar factory, were holding executives of the company hostage Tuesday, a spokesman for the workers said….

The workers were angry that Caterpillar had proposed cutting more than 700 jobs and would not negotiate, said Nicolas Benoit, a spokesman for the workers’ union….

Benoit said all the workers wanted to do was negotiate with Caterpillar and they were upset that the company did not show up to two earlier scheduled negotiating sessions.

In the face of a layoff, your workers likely will not take the drastic step of physically taking people hostage. They are much more likely to take your business hostage in another way – through costly and time-consuming litigation.

The only insurance policy against a laid-off employee filing suit is a well-drafted severance agreement. The key to getting an employee’s signature on that agreement is treating the employee with dignity. Don’t let an employee find out that he or she is going to be included in a layoff by email, text message, or workplace gossip. As difficult as it will be, have a face-to-face conversation with each laid-off employee:

1. Script out what you plan to say ahead of time. The message should be clear yet compassionate.

2. Have an HR representative or other witness present in the room, just in case any dispute arises down the road as to what was said.

3. Keep the lines of communication open, both for the laid-off and those left behind. Both groups will likely have questions. Being available to answer them is crucial.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Do you know? Charging for pre-employment medical exam

The Americans with Disabilities Act sets limits on when and how employers can ask applicants or employees medical questions. At the pre-employment stage, an employer is allowed to ask any medical questions and conduct medical examinations, as long as two conditions are met: 1) it does so for all entering employees in the same job category; and 2) the applicant has been provided a conditional job offer and has not yet started working.

A question sometimes arises to whether an employer must pay for a pre-employment medical exam. The ADA and Ohio’s parallel law are oddly silent on this issue, which leads me to conclude that an Ohio employer can require an applicant to bear the cost of the medical exam.

The bigger question, though, is whether you want to charge job applicants for medical exams in the first place, of if you want to eat those costs as part of recruitment and hiring. Because the overwhelming majority of employers choose the latter, passing the costs onto applicants could pose real problems in recruiting quality employees.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

How to layoff the protected

Sunday’s New York Times ran an articles called When the Stork Carries a Pink Slip. It makes the point that there is nothing illegal about including pregnant women or women on maternity leave in a layoff. The same holds true for minorities, those over 40, the disabled, those out on FMLA leave, or anyone who happens to find themselves in any of the other groups protected by state or federal discrimination laws. What is illegal, however, is to include a pregnant women in a layoff because she’s pregnant.

Layoffs are supposed to be blind at to issues of race, sex, age, etc. But, if you are making these decisions in the dark, you are making a big mistake that could prove very costly. Before a layoff is implemented, it is crucial to review the demographics of who is staying and who is leaving:

1. You want to make sure that neutral selection criteria do not have a disparate impact on a particular protected group.

2. You want to make sure that it does not look like the layoff targeted a particular protected group.

3. You want to identify those risky inclusions (such as the new mom on maternity leave or the employee with a history of FMLA-leaves) who may need some additional incentive to sign off on a severance agreement and release.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

WIRTW #72

I’ve never been a huge fan of Arlen Specter, Pennsylvania’s senior Senator. When I was a junior in high school, I participated Presidential Classroom, a week-long educational program in D.C. all about the federal government. One of the perks of the program was special meet-and-greets with our Congressman and Senators. Growing up in Philly, I was very excited to meet Sen. Specter, especially since his dad and my granddad somehow knew each other from their old neighborhood. When he blew off our scheduled appointment (the only one of three to do so), he made my list.

This week, however, the Senator took a huge step towards redemption by publicly stating that he will not support the Employee Free Choice Act. Because he’s previously supported the EFCA, and because he’s a Republican, his vote is critical for supporters to reach the 60 votes needed to end a filibuster and bring the bill to a vote. The following blogs have extensive coverage of Sen. Specter’s big announcement: Michael Moore at the Pennsylvania Labor & Employment Blog, the EFCA Report, Michael Fox at Jottings By An Employer’s Lawyer, EFCA Updates, and Dan Schwartz at the Connecticut Employment Law Blog, who has the video and transcript of Specter’s speech.

In other EFCA news this week, a group comprised of the CEO’s of Starbucks, Whole Foods, and Costco have come up with their own compromise on the controversial labor bill. For the details, jump over to the EFCA Report and The Word on Employment Law with John Phillips.

In some local news, Above the Law reports on a gender discrimination lawsuit filed in Summit County. According to the complaint, the alleged harasser is of foreign dissent, and HR cited “cultural differences” to explain why he referred to the plaintiffs as a “Bunch of B*tches,” “Hormonal Messes,” and a “F*cking Lesbian.”

Meanwhile, Molly DiBianca at the Delaware Employment Law Blog shares her thoughts on cursing in the workplace.

Kara Maciel at the EBG Trade Secrets & Noncompete Blog reports on what happens when one gentlemen’s club tries to poach dancers from another.

OnPoint has the details of a Florida case in which a Virginia jury rejected the sex discrimination claim of a female dock worker caught relieving herself outdoors.

Anthony Zaller at the California Employment Law Report writes on a topic I covered earlier this week, the DOL’s intent to step up wage and hour enforcement.

Ross Runkel’s LawMemo details a case in which an employer snooped on an employee’s private AOL email account that the employee accessed from a work computer. Workplace Privacy Counsel suggests that employers draft policies covering employees’ use of personal Internet-based email accounts using company computers.

Point of Law, on the hidden costs associated with layoffs – litigation costs.

Jason Morris at Employeescreen IQ Blog, on whether former bankers wear a scarlet letter in their current job searches.

Rob Radcliff’s Smooth Transitions has 9 pointers on hiring employees covered by non-compete agreements.

Mark Toth at the Manpower Employment Blawg gives his thoughts on a report about the high incidents of employee data theft.

Corporate Voices for Working Families suggests that family-friendly work benefits might take a big hit during the recession.

David Yamada’s Minding the Workplace reports that Massachusetts has introduced a workplace bullying bill in its legislature. For my thoughts on workplace bullying laws, see Sticks and stones may break my bones...

Carl Bosland at The FMLA Blog reminds us that every lawsuit boils down to two key issues, liability and damages, and winning on the latter is just as important for employers as the former.

Ted Moss at COSE Mindspring, on shield laws for job references. For my thoughts on this misunderstood issue, take a look at Do you know? Ohio law protects employers that give negative job references.

Finally, some gallows humor to end the week – Frank Roche at KnowHR links to an online game called “Layoff.”

Applying the federal COBRA subsidy to Ohio’s Mini-COBRA law

As I’ve previously reported, the federal stimulus bill, enacted last month, requires employers to provide a 65% subsidy of COBRA premiums for employees involuntarily separated. As I’ve also previously reported, Ohio has its own “mini-COBRA” for small employers with between 10 and 19 employees.

Do not assume, however, that merely because COBRA does not apply to small businesses that the subsidy also does not apply to small businesses. The federal stimulus bill specifically provides for COBRA premium assistance to former employees covered under state continuation coverage law such as Ohio’s mini-COBRA.

Just like its federal counterpart, small employers covered by Ohio’s mini-COBRA are not obligated to pay any portion of the premium. The former employee will pay 35% of the premium and employer will claim the payroll tax credit from the IRS for the 65% of the premium not paid by the former employee.

There are, however, three key differences between the subsidy under COBRA versus Ohio’s mini-COBRA.

1. Although the federal subsidy lasts for 9 months, Ohio continuation coverage, and therefore the subsidy obligation, only extends for 6 months.

2. To be eligible for the subsidy under COBRA, an employee need only have been involuntarily terminated for a reason other than gross misconduct. To be eligible for the subsidy under Ohio’s mini-COBRA, the employee must have been involuntarily terminated and: (i) continuously insured for the 3 months prior to the termination; (ii) eligible for unemployment; and (iii) not covered or eligible for Medicare or any other group health coverage.

3. Under COBRA, the federal subsidy is retroactive to September 1, 2008. In comparison, Ohio’s mini-COBRA only covers terminations that occur on or after February 17, 2009. Both subsidies expire at the end of this year.

The Ohio Department of Insurance has published a model COBRA notice for small employers to use.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Department of Labor to step up enforcement; employers should step up self-audits

You may have noticed that I write a lot about wage and hour issues. I do so because it’s an issue that often gets even well-intentioned businesses into trouble. As if employers don’t already have it bad enough with the explosion of wage and hour class action litigation, this week brings us news that new Labor Secretary Hilda Solis promises to “reinvigorate the work” of the DOL’s Wage & Hour Division. Her quote comes in response to an investigation by the General Accounting Office, which reports that the Wage & Hour Division has mishandled hundreds of cases.

In yesterday’s New York Times, Steven Greenhouse reports:

The report pointed to a cavalier attitude by many Wage and Hour Division investigators, saying they often dropped cases when employers did not return calls and sometimes told complaining workers that they should file lawsuits, an often expensive and arduous process, especially for low-wage workers.

In light of the DOL’s planned stepped-up enforcement, employers must be extra vigilant in uncovering wage and hour violation in their own workplaces. A wage and hour audit feels like an unpleasant medical exam. The investigator is not necessarily limited to the alleged violation, and will turn your workplace upside-down, pouring through years of records and privately interviewing your employees. And, once you are on their radar, it is hard to get off. In other words, they’ll be back to make sure you are staying on the path of all that is right and just.

For employers, the best advice I can give is to get out ahead of this issue. Take a hard look at all of your current wage and hour issues: employee classifications, meal and rest breaks, off-the-clock issues, and child any workers. Make sure you are 100% compliant with all state and federal wage and hour laws. If you are not sure, bring in an attorney to check for you. If you are ever investigated by the DOL or sued in a wage and hour case, it will be the best money your business has ever spent.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Do you know? Pay for employee training time

Do you know? Lost of opportunities exist for employees to train, take educational classes, or otherwise better themselves – inside classes, outside classes, seminars, lectures, and continuing education requirements, to name a few. Whether attendance at these activities counts as “working time” under the Fair Labor Standards Act depends on four factors:

1. Is attendance outside of the employee’s regular working hours?
2. Is attendance truly voluntary?
3. Is the course, lecture, or meeting indirectly related or unrelated to the employee’s job?
4. Does the employee not perform any productive work during such
   attendance?

You must be able to answer “yes” to all four of these questions to consider an employee’s attendance non-working time.

For non-exempt employees, this determination is important for two reasons. First, working time must be paid at the employee’s regular rate. Secondly, it counts towards the number of hours worked in a work week for determining overtime eligibility.

This issue is even more important in today’s tight economy. Failing to consider these factors before requiring or suggesting training or education for employees could result in the added expense of unbudgeted wages and overtime.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Make every day “Associate Appreciation Day” to avoid unions

Wal-Mart has labeled today “Associate Celebration Day,” in honor of its announcement of $2 billion in financial bonuses and other awards to its hourly employees. USA Today has the details.

It should not come as a surprise that Wal-Mart, which fights union organizing as hard or harder than any other American employer, is against the Employee Free Choice Act. My cynical side cannot help but think that Associate Celebration Day is a subtle reminder to potential union members that Wal-Mart is a good place to work and takes care of its own.

Keeping a place of employment union-free is not a one-shot deal. I do not think that employees’ choice to unionize can be bought and sold with one-off bonuses and merchandise discounts. To stay union-free, employers should make every day Associate Celebration Day. To be prepared for the EFCA if it becomes law, companies should actively strive to be workplaces of choice for employees and not workplaces of opportunity for labor unions.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

WIRTW #71

The big news of the week is the continued fallout from AIG’s bonus payments. Since Connecticut law governs the legality of whether AIG was required to make the payments under its retention plan, there is no better place to look for information on this issue than our good friend Dan Schwartz at the Connecticut Employment Law Blog.

In other economic news, Jay Shepherd at Gruntled Employees shares his thoughts on the CEO of a Boston hospital, who looked to his employees for ideas on how to save money and jobs.

The Business of Management gives some advice on how to properly handle layoffs.

Maribeth Minella at the Delaware Employment Law Blog has the top 10 layoff tips for employers. Tip #7 is the most important: “Seek the advice of legal counsel early.” We can then help guide you through the other 9.

Northeast Ohio’s Employers Resource Council’s Where Great Workplaces Start presents a timely list of some key HR terms.

Bob Sutton gives his ideas on the importance of quality in a business plan.

David Yamada at Minding the Workplace compares ethical employment practices to sweeping problems under the rug.

The Word on Employment Law with John Phillips opines that an employer is entirely within its rights to fire an employee who posts something on the Internet that negatively reflects on the job. Case in point: Employee disloyalty and Facebook.

We end this week’s review with a trio of posts on the Employee Free Choice Act:

• Michael Fox at Jottings By An Employer’s Lawyer points out the biggest mistake each side is making in the debate over the EFCA.

• LaborPains reports on some recent polling numbers that suggest that the EFCA might be gaining traction.

• Kris Dunn, The HR Capitalist, tries to untangle the spin coming from the labor unions about this bill.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Odd employees have a place – just maybe not in your workplace

I spent my summer between high school and college unloading trucks in a fabric warehouse. During my first week of work, one of my co-workers asked me if “Harlan” had gotten to me yet. As it turned out, Harlan was the warehouse joke. He held some strange ideas, and would take a stab at indoctrinating each new employee. Sure enough, later that same day Harlan cornered me and let me in on his view of the world – that a small cluster of Freemasons ruled the world from a secret office on the 36th floor of Rockefeller Center, that Lee Iacocca saved Chrysler by making a pact with Satan, and that the Israeli government would start the apocalypse by 2004.

I hadn’t thought about Harlan in years, but was reminded of him a few days ago when I came across Lizalek v. Invivio Corp. (7th Cir. 3/16/09):

Gary Lizalek’s religious beliefs make for a complicated identity. As a matter of faith, he understands himself to be three separate beings: (1) GARY C LIZALEK, “a trust that was created by the Social Security Administration … to generate assets for its beneficiary, the United States Government”; (2) Gary C. Lizalek, Trustee; and (3) Gary C. Lizalek, Steward, who “lends … consciousness and physical abilities to said Trust.” His employer asked that he stick with a single identity for professional purposes, but Lizalek refused. Shortly thereafter he was terminated. The district court held that this decision broke no law, and we affirm.

I could profoundly write about how a diligent background check could have revealed this employee’s oddities before he was hired, or about Title VII’s obligations to reasonably accommodate sincerely held religious beliefs unless it poses an undue hardship.

Instead, I’ll simply leave you with this thought. Most workplaces have someone like this employee. It’s up to you to figure out if this type of personality is the right fit for your business. Invivio hired him to deal with customers, and felt uncomfortable with him having that role in light of his bizarre behavior. Harlan was cutting fabric in a warehouse, and management did not mind his weird worldview, even if it sometimes distracted his co-workers. Every employee won’t be the right fit for every job; it’s management’s prerogative to weed out those employees that aren’t the right match for the particular business or position.

[Hat tip: Daily Developments in EEO Law]

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

New COBRA notices now available

Sometimes information just moves quickly to keep up with. The Department of Labor has just published the new COBRA notices, making my post of just a couple of house ago now partly obsolete. The notices are available here, from the DOL’s website.

Thanks to Michael Moore from the Pennsylvania Labor & Employment Blog, who saw my post from this earlier this morning and gave me the heads up.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Department of Labor posts wealth of information on new COBRA subsidy

As I’ve previously reported, the American Recovery and Reinvestment Bill of 2009, commonly known as President Obama’s economic stimulus bill, provides for a nine-month 65% subsidy of the COBRA premiums for involuntarily terminated employees. The Department of Labor has updated its website with lots of information for employer and employees on the subsidy: FAQS, flyers, posters, and other COBRA-related resources. Missing, however, is the one resource that would be the most useful to employers: a model form to provide to terminated employees. The DOL does say that it “is actively working to issue additional guidance regarding the COBRA premium reductions.” Perhaps it will issue the model COBRA notice along with this additional guidance. When the DOL gets around to publishing the model notice, I will be sure to post a link.

Maternity leave issues continue to confound employers

Maternity leave is one of the most misunderstood employment law issues for businesses. Two laws generally govern workplace maternity leave. First, the Family and Medical Leave Act, which mandates 12 weeks of maternity leave for employees who worked at least 1,250 hours in the prior 12 months for businesses with 50 or more employees. Secondly, the employment discrimination laws require that pregnant women be treated no differently than people with similarly debilitating conditions.
Ohio employers often misbelieve that if they are too small for FMLA coverage or if the FMLA does not cover a specific employee, they can deny maternity leave under a neutral leave of absence policy. As Nursing Care Mgmt. of America v. Ohio Civil Rights Commission (Licking Cty. 3/11/09) illustrates, under Ohio law employers that do not give all pregnant employees a reasonable amount of maternity leave, regardless of the employer’s leave policy, act at their own peril.
Pataskala Oaks Care Center had a neutral leave of absence policy that provided 12 weeks of leave for those employees with at least one year of service. After working at Pataskala Oaks for eight months, Tiffany McFee provided a note from her doctor stating that she was medically unable to work because of pregnancy-related swelling, and that she could return to work six weeks after delivery. Pataskala Oaks terminated her employment three days after delivery because she did not qualify for leave under its policy. The appellate court ruled that Pataskala Oaks committed unlawful sex discrimination by not granting McFee a reasonable maternity leave.
Ohio has specific regulations that cover maternity and childbirth leaves of absence – Ohio Admin. Code 4112-5-05(G). The key part of that section provides:

(2) Where termination of employment of an employee who is temporarily disabled due to pregnancy or a related medical condition is caused by an employment policy under which insufficient or no maternity leave is available, such termination shall constitute unlawful sex discrimination.

Pataskala Oaks argued that it had a leave policy, but McFee did not qualify under it because of her short tenure. The Court did not buy Pataskala Oak’s argument:

Termination of an employee disabled due to pregnancy is prohibited if the employer provides no maternity leave or insufficient maternity under its employment policy. In this case, it is undisputed that Pataskala Oaks had no maternity leave available to McFee at the time of her pregnancy disability….
Pataskala Oaks does not deny that McFee requested maternity leave, and that it terminated McFee without providing her maternity leave for a reasonable period of time. Pursuant to 4112-05-05(G)(2) such termination “shall constitute unlawful sex discrimination”.

This case is important for all Ohio businesses. Ohio law requires that all pregnant employee be provided a “reasonable” maternity leave, regardless of the the employer’s size, the employee’s tenure, or the language of a leave policy. If an employee asks for maternity on her first day of employment, it must be given and she must be restored at the end of the leave. The open issue is what “reasonable” means. Is it a fixed amount of time? Set by a doctor’s certification? Does it include bonding with a newborn or is it limited to medical necessity? These open questions will be answered on a case-by-case basis. What we know for sure is that zero maternity leave is a quick road to liability.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.
For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Do you know? Mandatory unpaid time off may affect salaried employees’ exemptions

Do you know? Many companies are turning to mandatory work furloughs or reduced work schedules as creative ways to save wages without having to lay off employees. These programs are designed to control the number of hours worked by employees and the resulting amount of wages paid. When applied to salaried exempt employees, however, in increments of other than a full week, furloughs and reduced work schedules can jeopardize exemptions under the Fair Labor Standards Act.

The FLSA provides an exemption from the minimum wage and overtime requirements for any employee employed in a bona fide executive, administrative or professional capacity. To qualify as exempt, most executive, administrative, and professional employees must, among other factors, be paid on a salary basis. Generally, an exempt employee must receive his or her full salary for any week in which the employee performs any work, without regard to the number of days or hours worked. In no event can an employer take any deductions from an exempt employee’s salary for full or partial day absences occasioned by lack of work. Thus, if an employer schedules an exempt employee for less than 40 hours in a week, the employee must still be paid a full week’s salary, or risk placing the employee’s exemption in jeopardy.

Reduced work schedules and furloughs, while very much in vogue, raise a host of complex legal issues. This post only discusses one such issue. If your business is considering implementing such an idea, contact your employment counsel to ensure that your plan complies with all wage and hour, discrimination, and other labor and employment laws.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Enjoying the small things in these trying times

When I attended Binghamton University, nee SUNY-Binghamton, in the early 90s, it’s sports programs were Division III. It was small-time, no television, 500 people in the West Gym, college basketball, to which I held season tickets for my four years on campus. Imagine my joy, then, to sit in my family room Saturday morning and watch Binghamton on ESPN2 play for its first conference title and trip to March Madness since the jump to Division I eight year ago. When the final buzzer sounded, and the announcers congratulated Binghamton on its historic win, and thousands of crazed fans flooded the floor of the school glistening new Events Center, I am not embarrassed to say that I shed a tear for my alma matter.

We live in depressing times. You can’t open a newspaper or surf the web without reading news about the sinking stock market, failing banks, high foreclosure rates, and record job losses. As an employment lawyer, those layoffs, frankly, are good for business. Yet, every time my phone rings and I field a call about handling the mechanics of another layoff at some other company, my heart sinks a little. I’m grateful for the work, and somber that what I do for a living can have such a profound effect on the lives of people that I likely will never meet.

Binghamton’s foray into big time college sports got me to thinking, in these trying times, we really do need to sit back and enjoy the small things. Whatever your small thing might be – a picture your daughter colored for you, a quiet conversation with someone you love, or picking your beloved alma mater to wear Cinderella’s slipper in the office pool – embrace it, even for a moment. At the end of the day, it’s the small things in our lives that are often the biggest of all, and help us cope with the big things that we too often allow to define who we are.

Oh, and go Binghamton, beat Duke.

[Update: for more on Binghamton basketball, I cannot more highly recommend Tzvi Twersky article in Slam Magazine: Great Blue Times at Binghamton U.]

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

WIRTW #70: The Employee Free Choice Act Edition

On Tuesday, Congressional Democrats introduced the Employee Free Choice Act in both Houses of Congress. This legislation will present the most contentious Congressional debates Washington has seen in at least a generation. If passed, it will radically alter union/management relations by permitting the certification of labor unions without a secret ballot election and by mandating binding arbitration for all first collective bargaining agreements. Because I can’t possible provide all of the coverage due this important legislation, this week’s WIRTW is dedicated to the EFCA:

• If you want to read the bill for yourself, the EFCA Report has links to its full text.

• If you can’t stand the thought of reading legislation, several blogs have useful summaries of the EFCA’s key provisions: The Labor & Employment Blog; the Washington Labor & Employment Wire; Mark Toth’s Manpower Employment Blawg; and the Employeescreen IQ Blog.

• The U.S. Chamber of Commerce’s ChamberPost details its efforts to fight against the EFCA’s passage, busts some common union myths about the ECFA, and provides an economic analysis against the EFCA. The most striking number is an estimate that the passage of the EFCA would cost our country 600,000 jobs the following year.

• The Word on Employment Law with John Phillips has another take on the EFCA and the economy.

• Frank Roche’s KnowHR Blog asks if your employees are ready to take the heat from unions if the EFCA passes.

• LaborPains.org posts a video of MSNBC’s liberal standard-bearer, Rachel Maddow, and suggests that she read the text of the bill before she editorializes on it.

• World of Work links to another video, this one by the SIEU, which comments on management’s use of “scare tactics” against the EFCA.

• HR Observations talks about the dangers of the EFCA’s lesser-known arbitration provisions.

• There are a couple rays of sunshine: ECFA Updates reports that Senate Democratic support for the bill might be wavering, and the EFCA Report suggests that some compromises might already be in the works to get this bill passed.

• Finally, Daniel Nichanian at Campaign Diaries has a detailed breakdown of where the Senate stands today on both support for the bill and support of a cloture to end the guaranteed Republican filibuster on the EFCA. With 44 Senators (which includes Al Fraken, who has not yet been formally seated) either co-sponsoring or openly supporting the bill, Daniel focuses on the 16 swing votes, Senators who have supported the bill in the past but have not yet taken a stand on the 2009 version. The Senate Democrats will have enough votes to pass the EFCA; the question is whether they will have enough votes for the cloture. Stay tuned - this promises to be very exciting.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Economy Down – Lawsuits Up

Has your company laid off or fired anyone recently? Have you recently been sued for discrimination? According to numbers to be published by the EEOC, the odds are that if you haven’t been sued, you will be.

The EEOC has released its caseload numbers for fiscal year 2008, and the upswing in the number of claims from the prior year is dramatic. From the EEOC, courtesy of the Wall Street Journal:

Type of Discrimination	2007 EEOC Charges	2008 EEOC Charges	Change from 2007 to 2008
Age	19,103	24,582	28.7%
Retaliation	26,663	32,690	22.6%
Sex	24,826	28,372	14.3%
Religion	2,880	3,273	13.6%
National Origin	9,396	10,601	12.8%
Race	30,510	33,937	11.2%
Disability	17,734	19,453	9.7%
Total	82,792	95,402	15.2%

 

In this economy, nearly every termination and lay-off should be considered high-risk. With little to lose, more and more employees are taking fliers on discrimination claims in hopes of scoring a settlement to help cushion the job loss blow.

Terminating or laying off an employee without getting employment counsel involved before the termination is asking for a lawsuit. Companies should be working with their attorneys to:

1. Vet group layoffs and individual terminations to confirm that the decisions are lawful and non-discriminatory.

2. Ensure that protected groups are not otherwise disproportionally represented in group layoffs.

3. Hedge their liability risks be offering severance packages in exchange for releases signed by departing employees.

We attorneys cannot offer a magic pill to immunize against lawsuits. What we can offer is proactive counseling so that you are best positioned to defend yourself when the lawsuit comes.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Do you know? Guns at work

Do you know? While the 2nd Amendment famously guarantees the  right to bear arms, Ohio law protects the right of employers to prohibit weapons of any kind from entering the workplace.

Ohio Revised Code section 2923.126(C)(1) provides:

Nothing in this section shall negate or restrict a rule, policy, or practice of a private employer that is not a private college, university, or other institution of higher education concerning or prohibiting the presence of firearms on the private employer’s premises or property, including motor vehicles owned by the private employer.

In Plona v. UPS (3/6/09), the Sixth Circuit recently confirmed the right of an employer to terminate an employee for violating a no-weapons policy. In that case, UPS fired Plona for violating its policy against possessing firearms on its premises after he was found with a pistol in his car. Plona claimed that the termination violated Ohio’s public policy in favor of the right to bear arms. The Court correctly disagreed:

Although the Ohio Constitution provides a general right to bear arms, the state certainly does not have a “clear public policy” of allowing employees to possess firearms on the premises of their private employers. To the contrary, the Ohio legislature has specifically provided that employers may limit their employees’ rights to bear arms…. UPS was thus plainly within its rights … to prohibit its employees from possessing firearms in the parking area.

If your business does not have a policy banning weapons anywhere on its premises, consider contacting your employment counsel to have a policy drafted.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Employee disloyalty and Facebook

Dan Leone was a lifelong fan of the Philadelphia Eagles. One could  only imagine that when his favorite team hired him as a game-day stadium employee, it was his dream job. Last week, the Denver Broncos signed free agent safety Brian Dawkins, the team’s emotional leader and one of the franchise’s historical great players. Upset with the Eagles’s decision not to resign Dawkins, Leone chose to vent on his Facebook page, updating his status: “Dan is [expletive] devastated about Dawkins signing with Denver. . .Dam Eagles R Retarted!!"

The Philadelphia Inquirer reports on the team’s termination of Leone:

Less than two days after posting the Dawkins remarks, Leone said, he was contacted by Leonard Bonacci, the team's director of event operations. According to Leone, Bonacci said they needed to talk about Leone's Facebook page, and Leone agreed. Leone - who deleted the comment - figured that the two would sit down and that he could apologize to Bonacci in person. But Leone said Bonacci never got back to him after that.

Two days later, Leone said, he received a call from Rachel Vitagliano, the team's guest services manager. Leone said she fired him over the phone. The conversation lasted less than 10 minutes.

No warning. No suspension. No face-to-face meeting. Just a quick call to tell Leone he'd been terminated.

All over the Internet, the Eagles are taking a beating for Leone’s. For example, according to an ESPN.com poll, 80.5% believe the Eagles were not justified in firing Leone.

Let me take the other side. It may seem heavy-handed for the Eagles to take a stand against a part-time seasonal employee. If an employer wants to effectively enforce policy, it has to do so across the board. The Eagles are sending the message that it will not tolerate its employees publicly making negative statements about the organization. While some will consider it unfair for this message to be sent at Leone’s expense, this employer will be better served the next time, when it is a high level front office employee instead of a part-time stadium employee. In employment law, consistency is key, and to be consistent, someone always has to be first.

Do you know? will return tomorrow, with a post on banning guns inside and outside the workplace.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Ohio Supreme Court to decide workplace breastfeeding rights

A few months ago I wrote on the lack of clarity under Ohio law on the rights of breastfeeding rights of moms at work. This week, the Ohio Supreme Court will take up this issue. It will hear the appeal of LaNisa Allen, a former employee of Totes/Isotoner, who sued the company for gender discrimination after it fired her for taking unscheduled restroom breaks to pump breast milk.

According to the Dayton Daily News:

She said other Totes workers weren’t required to seek permission for extra restroom breaks to relieve discomfort from menstrual symptoms or the need for frequent urination.

Allen’s attorneys say it’s gender discrimination because she was fired to relieve discomfort due to lactation, a condition exclusive to women.

Totes, which prevailed against Allen in a 2008 trial and a subsequent appeal, argues that the company didn’t discriminate because breastfeeding doesn’t legally constitute an illness or medical condition. The company says there is legal precedent showing that employers don’t have to give extra breaks to breastfeeding women.

This case should hinge on the answers to these questions: Are men allowed to take a break when nature calls? Has Totes ever fired a male employee for going to the bathroom? What about the treatment of employees who take smoke breaks during the work day?

A rule against breaks for lactation will, by its very nature, only apply to women. If Totes does not similarly discipline non-lactating employees who take breaks of similar duration during the work day for other reasons, it should have a hard time justifying Allen’s termination.

Before you institute a policy prohibiting pumping at work, or terminate a lactating employee, consider how you’ve treated other employees’ breaks during the work day. If you can’t find a consistent pattern of discipline or termination of similar non-lactating employees, you should reconsider the decision.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

WIRTW #69

Social networking (whether blogging, Facebook, LinkedIn, Twitter, or the myriad other available options) remains a hot topic for HR departments everywhere. My fellow bloggers have lots of good information on this topic this week:

• The Connecticut Employment Law Blog, on how to properly manage employees’ use of Twitter.

• The Delaware Employment Law Blog, on using Facebook profiles in litigation against former employees.

• Evil HR Lady, on the pluses and minuses of blogging for employees.

• California Workforce Resource Blog, on the value of Googling job applicants.

This week brought us the new regulations on the Genetic Information Non-Discrimination Act, which the LawMemo Employment Law Blog conveniently links for everyone.

The Washington Labor & Employment Wire reports on the introduction of the Arbitration Fairness Act of 2009, which would invalidate all pre-dispute arbitration agreements mandating the arbitration of any employment or civil rights disputes.

The Business of Management reminds employers to be diligent with departing employees’ proprietary information.

HR World gives some information on how to handle hourly employees whose shifts overlap this weekend’s time change.

This week’s review ends with some good news: Where Great Workplaces Start, the blog of the Employers Resource Council, reports on some recent job creation numbers for Ohio.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.