Drafting a social networking policy: 7 considerations

I could draft a perfect social networking policy using only a few words: “Be mature, be ethical, and think before you type.” Ultimately, you may decide that such brevity is what you want for you business. For the sake of completeness, though, I offer seven thoughts to consider when drafting a social networking policy.

1. How far do you want to reach? Social networking presents two concerns for employers – how employees are spending their time at work, and how employees are portraying your company online when they are not at work. Any social networking policy must address both types of online use.
   
2. Do you want to permit social networking at work, at all? It is not realistic to ban all social networking at work. For one thing, you will lose the benefit of business-related networking, such as LinkedIn. Without turning off internet access or blocking certain sites, a blanket ban is also hard to monitor and enforce.
   
3. If you prohibit social networking, how will you monitor it? Turning off internet access, installing software to block certain sites, or monitoring employees’ use and disciplining offenders are all possibilities, depending on how aggressive you want to be and how much time you want to spend watching what your employees do online.
   
4. If you permit employees to social network at work, do you want to limit it to work-related conduct, or permit limited personal use? How you answer this question depends on how you balance productivity versus marketing return.
   
5. Do you want employees to identify with your business when networking online? Because this blog is affiliated with my law firm, Kohrman Jackson & Krantz, I am cognizant that everything I write reflects on my partners and my business. Employees should be made aware that if they post as an employee of your company, the company will hold them responsible for any negative portrayals. Or, you could simply require that employees not affiliate with your business and lose the networking and marketing potential Web 2.0 offers.
   
6. How do you define “appropriate business behavior?” Employees need to understand that what they post online is public, and they have no privacy rights in what they put out for the world to see. Anything in cyberspace can be used as grounds to discipline an employee, no matter whether the employee wrote it from work or outside of work. There should be consequences for any information that negatively reflects on your business.
   
7. How will social networking intersect with your broader harassment, technology, and confidentiality policies? Employment policies do not work in a vacuum. Employees’ online presence, depending on what they are posting, can violate any number of other corporate policies. Drafting a social networking policy is an excellent opportunity to revisit, update, and fine-tune other policies.
   

For more information on social networking, revisit yesterday’s post -- Do you know? Facebook and Twitter and blogs, oh my! What is social networking and why should you care?

Do you know? Facebook and Twitter and blogs, oh my! What is social networking and why should you care?

Cave drawings were likely the earliest form of social networking. Today people tweet their thoughts for the world to see. In between we’ve had instant messaging, MySpace, Facebook, and blogs. The next several big things are already being hatched by some students at Stanford or MIT. Online social networking is here to stay – the only change will be in what form it takes.

According to a recent survey conducted by Deloitte, 22% of employees say that they use some form of social networking five or more times per week, and 15% of employees admit they access social networking while at work for personal reasons. Yet, only 22% of companies have a formal policy that guides employees in how they can use social networking at work.

Before we can figure out what to do about these exploding media at work, we first need to know exactly what we are dealing with. So, for the uninitiated, the following is a short lesson on the various types of social networking that are likely being accessed from your workplace right now.

• Blogs: Blog is short for weblog. Blogs either provide commentary on news or a particular subject (such as the Ohio Employer’s Law Blog), or serve as an online diary. Most are text-based, but blogs can also focus on art, photos, videos, and audio (you may have heard of podcasts). There are hundreds of millions of blogs on the internet, many updated as often as every day.
  
• Facebook: Facebook started as an online tool for college and university students to connect with each other. It has since expanded to allow anyone over the age of 13 with a valid email address to open a free account. It is loosely organized into a variety of networks based on schools, location, employers, charities, and other causes. Connections are known as “friends.” People update with short written blurbs about what they’re doing, pictures, video, and the like. Users can also post on friends’ pages. If you’re not on Facebook, I guarantee someone you know is. In fact, Facebook has over 200 million registered users. Even my mom has a Facebook page.
  
• LinkedIn: LinkedIn is an online network for professionals. It allows people to search and connect via alma mater, location, employer, or various user-created groups. It has over 41 million members.
  
• Twitter: Twitter is latest big-thing in social networking. It is what is known as “micro-bloggings.” “Tweets” are text-based posts of up to 140 characters, displayed on the user’s profile page and delivered to followers, other users who have subscribed.
  

Employers have three options to try to regulate social networking by employees at work: 1) turn off their internet access; 2) institute progressively harsher discipline against employees caught Facebooking or tweeting at work; or 3) draft a reasonable policy that recognizes the intersection of technology in the workplace and employees’ lives, and establishes reasonable baseline expectations about what is and is not acceptable use at work. Only the latter option makes any real sense.

Tomorrow, we’ll explore the pieces and parts that comprise a useable social networking policy. Until then, feel free to follow my 140 character thoughts on Twitter @jonhyman.

Let’s start the week with a laugh

So much of the news is doom and gloom, I thought I’d start everyone’s week with a little humor from one of my all-time favorite movies, Office Space. If you haven’t seen it, it’s definitely worth queuing on Netflix. Besides being hilarious, it offers an excellent glimpse in how not to manage employees.

Back to more substantive stuff tomorrow, I promise.

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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.

BREAKING NEWS: En banc panel of 6th Circuit reverses prior holding in Thompson v. North American Stainless and rejects associational retaliation claims

There are many types of relationships among employees in a workplace besides being co-workers. Many employees develop close friendships. Many businesses employee individuals from the same family – parents and their children, siblings, cousins, etc. Some employees work with their spouse. And some friendships develop into more, leading to dating, engagement, and even marriage.

Suppose an employee files a charge with the EEOC, and three weeks later, that employee’s fiancée is fired? Does the fiancée have a retaliation claim? Despite the fact that the fiancée engaged in no protected activity of his own, early last year in Thompson v. North American Stainless, the 6th Circuit permitted the employee to proceed with a retaliation claim by recognizing a claim for associational retaliation:

Title VII prohibit[s] employers from taking retaliatory action against employees not directly involved in protected activity, but who are so closely related to or associated with those who are directly involved, that it is clear that the protected activity motivated the employer's action. (emphasis added).

This morning, an en banc panel of the same court overturned its prior holding and expressly rejected this theory of associational retaliation.

Significantly, Thompson does not claim that he engaged in any statutorily protected activity, either on his own behalf or on behalf of Miriam Regalado…. By application of the plain language of the statute, Thompson is not included in the class of persons for whom Congress created a retaliation cause of action because he personally did not oppose an unlawful employment practice, make a charge, testify, assist, or participate in an investigation….

We must look to what Congress actually enacted, not what we believe Congress might have passed were it confronted with the facts at bar. For the reasons we have laid out, it was not “absurd” for Congress to limit the class of persons who are entitled to sue to employees who personally opposed a practice, made a charge, assisted, or participated in an investigation. Our interpretation does not undermine the anti-retaliation provision’s purpose because retaliation is still actionable, but only in a suit by a primary actor who engaged in protected activity and not by a passive bystander.

Retaliation continues to be of the most dangerous employment-law risks to face employers. By limiting this potential liability, this decision is a huge win for Ohio businesses. Employers no longer have to worry about how close of a relationship is close enough for a potential retaliation claim. As far as retaliation is concerned, employers need only worry about employees who actually engage in their own protected activity. Isn’t that enough for employers to worry about? 

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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 #82

I have a confession to make. I’ve never watched an episode of Jon & Kate Plus 8. I know that I am confessing to being a pop-culture Neanderthal. I guess I can live with that. This week, the Pennsylvania Labor Department launched an investigation into whether the show violates child labor laws. Michael Moore at the Pennsylvania Labor & Employment Blog and Jeffrey Hirsch at the Workplace Prof Blog have the details. For more information on child labor laws generally, check out Jennifer Hays’s thoughts at the Warren & Hays Blog.

I have another confession to make. I had been working on a piece that draws some lessons on talent management from the Cavs’s crushing loss in the Eastern Conference Finals. The HR Capitalist beat me to it.

During a White House press conference earlier this week, White House Press Secretary Robert Gibbs offered what can best be described as lukewarm support for the Employee Free Choice Act. LaborPains.org details his comments. Meanwhile, Michael Fox at Jottings by an Employer’s Lawyer reminds everyone that card check is only one of three key parts of the EFCA. In other labor law news, Michael Maslanka at Work Matters draws three important lessons from a recent viewing of Norma Rae.

BLR’s HR Daily Advisor ran a two part series this week on how to avoid lawsuits during a RIF: Part One and Part Two.

The Word on Employment Law with John Phillips, on playing hardball with former employees.

Patrick Smith at the Iowa Employment Law Blog talks about the legal risks in asking exempt employees to take time off for economic reasons. For my thoughts on this issue, see Do you know? Mandatory unpaid time off may affect salaried employees’ exemptions.

Employment Law Bits has information on potential paid sick leave legislation.

Wage Law itemizes some of Supreme Court nominee Judge Sonia Sotomayor’s more important employment law opinions.

Ann Barnes at Compensation Force details a recent survey of severance pay and other separation policies.

Jay Shepherd at Gruntled Employees thinks Twitter will kill annual employee performance reviews.

The Laconic Law Blog reports on a decision out the D.C. Circuit discussing the distinctions between employees and independent contractors.

Becky Regan at Compensation Cafe lists 7 considerations for an effective sales plan.

Finally, I Hate People...But It's Nothing Personal reminds everyone that while it’s easy to hate lawyers, “savvy lawyers save your company time, aggravation and money.” Well said.

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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.

3 lessons in handling workplace harassment

Gallagher v. C.H. Robinson Worldwide (6th Cir. 5/22/09) [PDF] offers an excellent example of how businesses get themselves into trouble by failing to actively and effectively police workplace offensive conduct.

Julie Gallagher began working at C.H. Robinson Worldwide, a Cleveland trucking company, in September 2002. She held an office job at CHR, working with two dozen other employees in a relatively small office. She quit CHR after only four months. In the interim, she claims that she was subjected to repeated sex-based harassment and offensive conduct, including:

• The prevalent use of foul language by mostly male coworkers who openly and loudly referred to female customers, truck drivers, coworkers and others as bitches, whores, sluts, dykes and cunts.
• The frequent display of pornographic websites and magazines.
• Co-workers who shared nude pictures of their girlfriends in different sexual poses.
• Male co-workers who daily traded sexual jokes and engaged in graphic discussions about their sexual liaisons, fantasies, and preferences.
• One co-worker angrily called her a “bitch” on several occasions.
• Male co-workers called her fat, a “heifer” with “milking udders,” and “moo”ed at her. 

Gallagher admitted that she did not avail herself of CHR’s formal harassment policy and complaint mechanism, but did sometimes complain to the branch manager, Greg Quast, to no avail.

The trial court granted CHR’s summary judgment motion and dismissed Gallagher’s case. The 6th Circuit, however, reversed and sent the case back for trial. Why? And what can employers learn from this case?

1. Offensive conduct can be “based on sex” whether or not it is directed at a woman. In this case, most of the complained of harassment was not directed at Gallagher, but was explicitly sexual and degrading of women in general. Such conduct is actionable whether or not the complaining employee is specifically targeted. The lesson: Employers should not ignore harassment complaints just because the complaining employee was only subjected to general workplace misconduct.

2. A jury could conclude that the harassment was severe and pervasive: “Considering the totality of the circumstances …, the conclusion is inescapable that a reasonable person could have found the Cleveland office—permeated with vulgar language, demeaning conversations and images, and palpable anti-female animus—objectively hostile.” The lesson: Businesses are not fraternity houses, and employers that allow frat-like antics to permeate the workplace will often find themselves on the losing end of a harassment lawsuit.

3. The branch manager should have taken greater steps to correct or remedy the harassment: “It is true that Gallagher did not report all of her concerns to Quast and did not necessarily characterize all of her complaints as sexual harassment complaints. Still, when the conduct Gallagher did report to Quast is considered alongside the pervasive conduct Quast himself witnessed, it can hardly be denied that there is a genuine fact issue as to what Quast, and therefore C.H. Robinson, knew or should have known.” The lesson: Once management knows or should know of inappropriate conduct (whether by a complaint or otherwise), it cannot borough its head in the sand, but must undertake a reasonable investigation and implement prompt remediation if warranted.

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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 confirms 180-day statute of limitations for most age discrimination claims

Ohio has what can best be described as a disjointed statute for age discrimination claims. Chapter 4112 of the Ohio Revised Code has four different provisions that cover age discrimination:

4112.14(B)	While a six-year statute of limitations applies to claim under this section, it provides limited remedies – lost wages and benefits, reinstatement, costs, and attorneys’ fees.
4112.02(N)	An age-discrimination claim under this section must be brought within 180 days of the alleged unlawful practice. Unlike 4112.14(B), it allows for the full list of available remedies, including compensatory and punitive damages.
4112.05	Allows for an individual to file an administrative charge with the OCRC, but acts as an absolute bar to filing a civil action in court for age discrimination.
4112.99	Provides an independent civil action to seek redress for any form of discrimination identified in Chapter 4112, including age discrimination.

 

In January 2008, the Hamilton County Court of Appeals held, in Meyer v. United Parcel Serv., Inc., that 4112.99 creates its own independent cause of action for age discrimination, which is subject to its own six-year statute of limitations. At the time, I argued that the Meyer case was an anomaly, and that the conventional 180-day statute of limitations for claims under 4112.02(B) was likely still good law. Yesterday, the Ohio Supreme Court agreed with my instincts and reversed the Meyer decision. In Meyer v. United Parcel Serv., Inc. (6/2/09) [PDF], the Ohio Supreme Court held that 4112.99 does not create its own cause of action, but instead any age claim brought under 4112.99 is merely subject to the specific provisions of 4112.02 and 4112.14.

Thus, a plaintiff only has 180 days to pursue an age claim and seek full remedies. Thereafter, any age claim brought up to six years hence would be restricted to 4112.14(B)’s limited damages. A plaintiff can still plead an age claim under 4112.99, but ultimately will have to elect either 4112.02 or 4112.14 as the statute under which the claim is being brought.

While Meyer may not break new ground, employers should nevertheless breathe a sigh of relief that the appellate court’s anomalous opinion was reversed. Employers will continue to enjoy Ohio’s very short window for individuals to seek a full slate of damages for age discrimination. 

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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? Sexual orientation and gender identity discrimination

It strikes me as appalling that in the year 2009 there are still minority groups against whom it remains legal to discriminate. An employer can blatantly state that the reason for an employee’s termination is that employee’s sexual orientation, with little risk of legal repercussion. Recognizing this anachronism, some courts have permitted claims by creative attorneys under Title VII for sexual stereotyping. Such recognition, however, varies from judge to judge and court to court, with no uniformity or certainty.

If the Ohio legislature has its way, however, this type of discrimination will end. House Bill No. 176 seeks to add “sexual orientation, gender identity and expression” to the categories of protected classes against whom it is illegal to discriminate in employment decisions in Ohio. Under the statute as proposed, “Sexual orientation” would include “actual or perceived heterosexuality, homosexuality, or bisexuality,” and “gender identity and expression” would include the gender-related identity, appearance, or expression of an individual regardless of the individual’s assigned sex at birth.” The latter is much more controversial than the former, and will also likely be the subject of vigorous debate in Washington D.C. over a potential federal ban of the same types of discrimination.

Many companies have already made the personal decision to prohibit these types of discrimination. For those that have not, if sexual orientation and/or gender identity discrimination becomes illegal policies will have to be rewritten and employees and management will have to be retrained. Keep watching this space for further updates on this important issue.

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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.

Confidentiality of personnel records help protect employers from defamation liability

Most people are not confrontational by nature. Maybe that is why many employers are lax about accurately documenting employees’ performance problems. People like to give others the benefit of the doubt, not make waves, and not hurt feelings. It only becomes a problem when an employee becomes an ex-employee and files a lawsuit. At that point, it becomes difficult to explain why an employee with good performance reviews and scant written discipline was fired for performance problems.

One thing that businesses should not have to worry about from negative information in employees’ personnel files is defamation liability. Outlaw v. Werner (Cuyahoga County 5/21/09) [PDF] involved a patient who sued her doctor for defamation based on negative information written in her chart. In affirming the dismissal of her defamation claim, the court commented that defamation liability cannot be premised on information that is kept confidential. Most employers would agree that employees’ personnel files are confidential. Indeed, not even the employee has a right to see his or her own file. Nevertheless, it is not a bad idea to build a policy into your handbook making clear that personnel files are confidential.

For more on the importance of accurately documenting employees’ performance histories and problems, take a look at the following posts from the archives:

• A textbook example in handling a problem employee.
• ‘Tis the season… for employee theft.
• Failure to document performance problems dooms employer's defense.
• Penny-wise, pound-foolish employment practices.
• And finally, Document, document, document!

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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 #81

This week’s top labor and employment story is undoubtedly President Obama’s nomination of Judge Sonia Sotomayor to the U.S. Supreme Court. For coverage of this historic event, read the thoughts of my fellow bloggers: Compensation Cafe; Connecticut Employment Law Blog; HR Lawyer’s Blog; Jottings By An Employer’s Lawyer; The Word on Employment Law with John Phillips; Warren & Hays; and World of Work.

I recently discovered an excellent blog on workplace conflict and corporate cultures -- I Hate People...But It's Nothing Personal. For a good idea of what this blog is all about, I recommend their post on management checking out employees’ Facebook pages.

Also on the topic of social networking, Anne Barnes’s Compensation Force discusses management efforts to regulate this exploding media.

This week also brings us a couple of interesting posts on sexual harassment. Mindy Chapman’s Case in Point talks about how to handle same-sex harassment complaints. On.point reports that a judge has reduced a sex harassment verdict from $100,000 to $26,500 to account for the plaintiff’s habit of exposing her own genital piercing to co-workers.

In age discrimination news, Jennifer Warren at the Warren & Hays Blog suggests that younger employees are being more greatly affected by the recent wave of layoffs. Patrick Smith at the Iowa Employment Law Blog reports on the rise of age claims and provides some practical tips on how to avoid them.

It looks like federally mandated paid sick leave is becoming more and more likely, at least according to Michael Haberman’s HR Observations and Michael Moore’s Pennsylvania Labor & Employment Blog.

Nick Fishman at the Employeescreen IQ Blog discusses background screening in a down economy.

Your HR Guy talks about why exit interviews don’t work.

World of Work reports on a Montana Supreme Court decision which held that exotic dancers are employees and not contractors.

Smooth Transitions shares some thoughts on how to prosecute a trade secret claim against an ex-employee.

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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.

A cautionary lesson in litigation management

10 years ago, an Atlanta restaurant fired its highest ranking female manager. Last month, a federal jury finally dismissed her sexual harassment case. The latest verdict was the third handed down by a federal jury in the last five years. In the interim:

• The employer won the first jury trial in 2004.
• The employee appealed, and the 11th Circuit sent the case back down for retrial, but ordered a mediation before case could be retried.
• At the second trial, the employee won a $2.05 million verdict.
• This time, the employer appealed, and the 11th Circuit again sent the case back down for retrial, with yet another court-ordered mediation.
• Facing insurmountable defense costs and having to post a bond to secure the multi-million dollar verdict on appeal, the restaurant went into bankruptcy.

Law.com quotes the plaintiff’s lawyer, Edward D. Buckley III: “The moral of the story is that there is real value to settling these kinds of cases for both parties. That is something that there were many occasions when it could have occurred, but unfortunately it didn't. The 11th Circuit urged us to engage in meaningful settlement discussions. At least one of the district judges involved in the case urged us [to settle] and tried to facilitate that. Unfortunately, it didn't happen.”

Let this case serve a lesson for all businesses. This case spun out of everyone’s control – the lawyers and the parties. If everyone had put emotion aside (and their is no doubt that three trials and two appeals over 10 years is fueled purely by anger or spite, and not common sense and reason), the plaintiff would have realized that a guaranteed something is better than a roll of the dice, and the employer would have realized that paying a settlement is better than losing everything on principle.

I’m not arguing that the parties should have caved as soon as the case was filed. Indeed, some cases can only be resolved by a trial. After that trial, however, the parties should have listened to the court and viewed the verdict for what it was -- an opportunity to settle, not a reason to fight on.

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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.

The (im)morality of layoffs?

Money, not morality, is the principle commerce of civilized nations.

--Thomas Jefferson

In the May 24 New York Times, ethicist Randy Cohen argues that it is unethical for American businesses to engage in mass layoffs:

These days such mass layoffs are sadly unsurprising, but are they ethical?… They are not, at least until more benign tactics have been exhausted….

To deprive thousands of people of their livelihood can have a catastrophic effect on them, their families and their communities. For a company to get through a recession, suffering may be unavoidable, but ethical management means minimizing that hardship, spreading the pain equitably and bearing some responsibility for its consequences….

Before adopting the ethics of the overcrowded lifeboat, before tossing thousands of non-millionaires over the side, gentler — and more equitable — methods must be tried. Everyone’s hours might be reduced, diffusing the pain. Dividends to stockholders can be eliminated. Pay cuts can be instituted company-wide, with the deepest reserved for the highest paid (that is, those most able to endure them).

Mr. Cohen is selling employers short. I work with a lot of companies, many of which have, with much regret, been forced to downsize their workforces in the past few months. I can assure you it is never a decision taken lightly, or without careful deliberation. Certainly, layoffs are an opportunity for employers to shed some dead weight. Many good employees are also impacted, though. Those businesses that can offer economic help to severed employees do so, in varying sized packages. Others have considered alternate plans, such as furloughs, alternate work schedules, or wage reductions.

For some businesses, however, whether because of the need of their operations or the composition of their workforces, layoffs are the only viable option. A paycheck for some is better than a paycheck for none.

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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? When it is lawful to take deductions from an employee’s pay?

For an employer to claim that an a professional, administrative, or executive employee is “exempt,” and therefore ineligible to receive overtime compensation, the employee must be salaried. An employee is paid on a salary basis when the employee receives the same amount of pay each pay period, without any deductions.

Despite the general rule against deductions from salaries, the Department of Labor’s rules permits employers to make deductions without risking an employee’s exemption in seven specific instances:

1. When an exempt employee is absent from work for one or more full days for personal reasons, other than sickness or disability.   
   
2. For absences of one or more full days occasioned by sickness or disability (including work-related accidents) if the deduction is made in accordance with a bona fide plan, policy or practice of providing compensation for loss of salary occasioned by such sickness or disability.   
   
3. While an employer cannot make deductions from pay for absences of an exempt employee for jury duty, attendance as a witness, or temporary military leave, the employer can offset any amounts received by an employee as jury fees, witness fees, or military pay for a particular week against the salary due for that particular week.
   
4. For penalties imposed in good faith for infractions of safety rules of major significance.    
   
5. For unpaid disciplinary suspensions of one or more full days imposed in good faith for infractions of workplace conduct rules imposed pursuant to a written policy applicable to all employees.  
   
6. For any time not actually worked during the first or last week of employment.
   
7. For any time taken as unpaid FMLA leave.
   

It is critical for businesses with salaried employees to familiarize themselves with these rules. A mistaken deduction could prove costly. Generally speaking, if an employer makes a deduction from the amount paid, the exemption will be lost during the time period during which the improper deduction was made. The lost exemption does not only apply to the affected employees, but also to all employees in the same job classification working for the same managers responsible for the actual deduction.

The Department of Labor also provides a safe harbor for employers that have a clearly communicated policy that prohibits the improper pay deductions, and which includes a complaint mechanism, reimburses employees for any improper deductions, and makes a good faith commitment to comply in the future.

Before you implement a policy or practice of docking the pay of salaried employees, it is best to consult with experienced employment counsel to evaluate employees’ job classifications and exemptions, to examine the proposed deductions, and to review or draft an appropriate safe harbor policy.

WIRTW #80

This week’s most popular topic is the Supreme Court’s AT&T v. Hulteen [PDF] decision. That case held: “An employer does not necessarily violate the PDA when it pays pension benefits calculated in part under an accrual rule, applied only pre-PDA, that gave less retirement credit for pregnancy than for medical leave generally.” I agree with Michael Fox that “[i]f the case had gone the other way, it is possible to imagine how it could have had broad ramifications. However, given its narrow holding, it seems unlikely to be very important beyond its impact on the parties.” For more details and commentary, click over to the following laundry list of employment blogs: California Workforce Resource Blog, Connecticut Employment Law Blog, Daily Developments in EEO Law, Delaware Employment Law Blog, Labor & Employment Law Blog, LawMemo Employment Blog, Nolo’s Employment Blog, SCOTUS Blog, Workplace Prof Blog, and World of Work.

Social networking and its impact in the workplace continue to be a hot topic among employment bloggers:

• Where Great Workplaces Start suggests that employees maintain separate on-line profiles for their personal and professional lives.

• BLR’s HR Daily Advisor provides a concise primer on workplace web 2.0 issues.

• HR World discusses the natural disconnect between employers and employees on the issue of social networking.

• The ABA Journal reports on the legal issues of Twitter.

• Dan Schwartz at the Connecticut Employment Law Blog compiled a list of 10 employment law twitterers to follow.

• For those that tweet, you can follow me @jonhyman.

In related news, Robert Ambrogi at the Legal Blog Watch notes that a New Zealand judge has okayed service of process by Facebook.

Sindy Warren at the Warren & Hays Employment Blog discusses the recent trend in courts protecting transgendered employees.

Donna Seale’s Human Rights in the Workplace gives the following very good advice – have regular harassment training.

Natalie Beck at the Employeescreen IQ Blog talks about the dangers that lurk when companies skip background checks.

Kris Dunn, The HR Capitalist, gives his very pro-business take on the EFCA’s binding arbitration requirements.

The Iowa Employment Law Blog lists some challenges HR will face this year.

Fair Labor Standards Act Law suggests that employers read the fine print in their EPL policies to check if wage and hour claims are covered. My guess, based on past experience, is that they are not.

Frank Roche’s KnowHR Blog asks, “How do you handle weirdos at work?”

Finally, Texas attorney Michael Maslanka at Work Matters quotes the Talmud for some words to live by for employers and employees alike: “What is hateful to you, do not to your fellow man. This is the law: all the rest is commentary.” In other words, follow the golden rule and all else should fall into place.

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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.

Supreme Court’s expanded pleading rules give employers added tool to combat lawsuits

Today, I am going to get a little academic, but I promise I’ll bring it back around at the end with some practical information for employers.

Two years ago, in Bell Atlantic Corp. v. Twombly [PDF], the U.S. Supreme Court ruled that to state a legal claim and survive a motion to dismiss, a legal pleading (the initial filing in a lawsuit) cannot simply recite the elements of a cause of action or make an unsubstantiated conclusion, but must set forth a claim that is “plausible on its face.” The Court explained:

Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the claim showing that the pleader is entitled to relief,” in order to “give the defendant fair notice of what the … claim is and the grounds upon which it rests. While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff’s obligation to provide the “grounds” of his “entitlement to relief” requires more than labels and conclusions, and a formulaic recitation of a cause of action’s elements will not do. Factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all of the complaint’s allegations are true. (internal citations omitted).

For example, in discrimination case, I sometimes see complaints that simply say, “X was terminated because of his race in violation of Title VII.” While Twombly was an antitrust case, if it’s rationale extended to employment cases these types of pleadings would not suffice. Twombly, however, left open the question of whether it applied beyond the antitrust arena.

Earlier this week, the Supreme Court decided Ashcroft v. Iqbal [PDF], which extended the Twombly pleading rules to an unlawful detention case. In the wake of the Court’s expansion of Twombly outside the antitrust context, it is likely that its pleadings requirements will apply in all civil litigation. In other words, a discrimination plaintiff should no longer be able to simply speculate that discrimination occurred, or make bald, unsubstantiated conclusions. A discrimination plaintiff will have to plead sufficient, specific facts to at least put the employer on notice of what is alleged to have actually happened.

The Ashcroft decision has three big practical implications for employers:

1. Employees will be required to file much more detailed complaints, and employers will know at the earliest stages of the lawsuit exactly what is being alleged. Employers will no longer have to engage in expensive discovery just to learn the theory of the plaintiff’s case.

2. Employers will be able to make more accurate analyses of cases earlier. Earlier analysis of a case’s strengths and weaknesses will allow employers to decide early in the litigation whether a case is worth fighting, or should be settled earlier. Thus, companies should save defense costs.

3. More lawsuits should be dismissed for failing to state a claim. In theory, the less meritorious lawsuits will fall by the wayside, saving businesses the cost of defending nuisance lawsuits.

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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.

Alternative compensation plans pose wage and hour risks

Employees can be paid in many different ways: an hourly rate, an annual salary, by commission, by piece, a flat rate, with additional established or discretionary bonuses, or in some combination of any of the above. The more creative an employer becomes in how it compensates its employees, the more risks it takes under the wage and hour laws. Baden-Winterwood v. Life Time Fitness, Inc., decided earlier this week by the 6th Circuit, provides a good illustration of how certain alternate compensation schemes can jeopardize employees’ exemptions and render an employer liable for unpaid overtime.

Life Time Fitness paid its employees a pre-determined, semi-monthly base salary, in addition to monthly bonus payments based on year-to-date performance as set forth in a written bonus plan. For the years 2004 and 2005, the bonus plan permitted Life Time Fitness to make deductions from employees’ salary to recover prior bonus overpayments. In 2006, it amended the plan to provide that while it could still make semi-monthly salary deductions for overpayments, “[o]n an annual basis, in no case will the Guarantee Pay be lowered.”

The Sixth Circuit found that the 2004 and 2005 plans violated the FLSA, which does not permit salary deductions “for the reduction of guaranteed pay under a purposeful, incentive-driven bonus compensation plan.” Because the deductions were illegal, the employer could not claim the benefit of the FLSA’s exemptions for its employees during those years.

The loss of the exemptions in this case opened the employer to significant exposure for unpaid overtime. If you are considering implementing an alternate compensation scheme for your employees, also consider a review by experienced employment counsel to avoid a similarly expensive wage and hour miscue.

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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? Adopt the TEAM approach to fight unions

Whether the EFCA will become law, and in what form, is very much up in the air. Democratic support for the measuring is waning, and business organizations have united in an unprecedented level of opposition. There is no doubt that if card-check becomes law, labor unions will have a much easier time becoming certified in workplaces. Yet, it is unclear whether unions even need the EFCA. In 2007, unions won 60.1% of elections, compared to a mere 51.5% in 1997. In the first half of 2008, the number of elections won by unions increased to 66.8%.

Because unions have become increasingly aggressive, even without the EFCA, I recommend that employers adopt the T.E.A.M. approach to union avoidance:

Train supervisors
Educate employees
Accessibility
Modernize policies


1. Train Supervisors. If a union is organizing, supervisors are likely to be the first people to know. They will also be the people that rank-and-file employees will come to with questions or concerns. Thus, supervisors need to know how to report, monitor, and legally respond to union activity.


2. Educate Employees. Employees should not be told that the company is anti-union, but why it is anti-union – competitive wages and benefits; positive communication between management and employees; history of peaceful employee/management relations; management’s openness to listen to employees and handle their concerns without an intermediary; and an unwillingness to permit a third-party to tell the company and employees how to do their jobs.


3. Accessibility. Management should routinely round its employees to learn what is happening and what they are thinking. Management should walk the floor on a daily basis. It should also hold regular meetings with employees, whether in small sessions with HR or large town hall-style meeting.


4. Modernize Policies. In an ideal world, employee handbooks and other corporate policies should be reviewed and updated annually. I’ve yet to come across a company that does so this frequently. The threat of the EFCA is a perfect excuse to take a good, hard look at current policies. Do you have a written statement on unionization? An open door policy? An issue resolution procedure? Peer review? An employee bulletin board? An electronic communications policy? Most importantly, do you have a no solicitation policy? It is the single most important policy to help fight labor unions.
No program is foolproof. No matter what steps are taken, no matter the quality of employee relations, every company is at risk for a union organizing campaign. Businesses should strive to be an employer of choice for employees, and not an employer of opportunity for labor unions.

How to Stay Union-Free in a Union- Friendly World: PowerPoint now available

For those who were unable to attend last week’s Breakfast Briefing, you not only missed a free meal, but you also missed a timely discussion on union avoidance. The PowerPoint slides are below. You’re on your own for breakfast this morning.

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

View more presentations or Upload your own.

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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 #79

The newly launched Warren & Hayes Employment Law Blog, written by the Cleveland-based HR consulting company of the same name, discusses the discrimination liability risks inherent in searching employees’ on-line profiles. In other social networking news, Robert Ambrogi at the Legal Blog Watch discusses the Wall Street Journal’s recently drafted social networking policy for its employees. Workplace Privacy Counsel discusses whether there are any limits on how far employers can go in regulating employees’ private social networking profiles. Business Management Daily warns employers against overreacting to employees’ online presence.

Overlawyered let’s us know that academics are debating whether “heightism” should be added to the list of protected classes. (ugh).

WorkplaceHorizons reports on two recently-introduced bills that would amend the FMLA – one to repeal this year’s new regulations, and other to expand the permissible reasons for FMLA-leave.

Current Employment details the EEOC’s position that employee health risk assessments violate the ADA.

Molly DiBianca at the Delaware Employment Law Blog shares her thoughts on the effects of caregiver discrimination on dual-income households.

Dan Schwartz at the Connecticut Employment Law Blog, on issues to consider when settling employment disputes.

Bob Sutton, with some outside-the-box ideas on curbing employee theft.

PC Magazine’s Eric Griffin presents the 25 golden rules of e-mail.

Christopher McKinney at the HR Lawyer’s Blog digests a half-million dollar verdict for a transgendered employee whose job offer was rescinded after he showed up on the first day of work as a she.

The Evil HR Lady opines on the evils of draconian vacation policies.

The Washington Labor & Employment Wire reports on the EEOC’s recently announced regulatory agenda for 2009 and 2010. The highlights include regulations for GINA and the ADA Amendments Act.

Finally, the U.S. Chamber of Commerce’s Chamber Post discusses Ohio’s recent growth despite the stale economy.

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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.

“Who wants to see a 56-year-old stripper?”

Those were my wife’s words when I told her last night what I’d be writing about today. The EEOC is suing a Houston strip club for firing a 56-year-old dancer. According to the Houston Chronicle [h/t: ABA Journal]:

Mary Bassi, who was 56 at the time of her termination, worked at Cover Girls, where she was allegedly subjected to disparaging remarks. According to the lawsuit, which was filed last week in federal court, she was frequently called “old” by managers and endured comments about experiencing menopause and showing signs of Alzheimer’s disease.

According to Connie Wilhite, the EEOC lawyer in charge of the case, “It doesn’t matter what industry you work in. You are still protected by anti-discrimination laws.” While I agree that every individual has the right to be free from unlawful job discrimination regardless of one’s chosen occupation, I seriously question whether this lawsuit is a judicious use of our government’s resources. After all, to translate my wife’s question into legal terms, can anyone really dispute that age is a bona fide occupational qualification for a strip club employee?

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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 recover a stolen computer in four easy steps

Law.com reports that 60% of employees who are laid-off, fired, or quit  admit to stealing company data. I previously reported that it costs an average of $50,000 to replace a stolen computer, with 80% of that value coming from the recovery of sensitive, confidential, and proprietary information. When you put these two pieces of information together, it becomes increasingly apparent that businesses must take proactive steps to protect their technology and data.

According to a case recently decided by a Missouri federal court, employers can use the Computer Fraud and Abuse Act (CFAA) to recover a stolen laptop. The CFAA is a federal law that creates a private causes of action for individuals or businesses damaged by computer fraud. In Lasco Foods v. Hall & Shaw Sales & Marketing, the district court permitted the employer to pursue a claim under the CFAA against two ex-employees who failed to return their laptops after resigning to start a competing enterprise. The ability to use the CFAA in this context is an important weapon for employers, because it allows for the recovery of a variety of damages and costs, including forensic investigation fees incurred in examining the computer after its return.

Yet, litigation is just one step in an overall four-step plan I recommend to secure corporate technology from ex-employees:

1. Institute a strong Electronic Communication and Technology Policy, making clear that all data and equipment belong to the company, and must immediately be forfeited upon the end of employment.

2. Remind employees upon termination or resignation of their duty to return all data and equipment, including laptops.

3. If any data or equipment is missing, enlist the aid of an attorney to send a friendly, yet clear message that unless everything is returned immediately, the company will enlist the aid of a court.

4. Sue.

Notice that a lawsuit against the employee is step four, not step one. Going to court is the last resort. It should always be the last resort. It is expensive and time consuming. Yet, it many instances it is unavoidable. The CFAA, at least as some courts are interpreting it, provides employers with a key weapon in combating employee theft of computer equipment if one is left with no choice but to sue.

[Hat Tip: EBG Trade Secrets & Noncompete Blog]

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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? Volunteerism under federal wage and hour laws

According to EVliving.com, one employer has come up with a creative idea to combat the current economic downturn. The CEO of Greenleaf Book Group, a publishing company, has decided that instead of laying off any employees, his company will simply require its employees to volunteer one hour of time per week to the company.

“Cutting one person from the team is losing one invaluable resource that helps make this entire company tick,” he said. “In the short term, it’s hurting morale and lowering the productivity of a department. In the long run it means the entire company’s time and money spent trying to make up for the loss-redistributing tasks and overburdening departments, struggling to make up the slack, dealing with the paperwork, and eventually putting additional man-hours toward rehiring and retraining. And of course, the toll layoffs take on the economy are tremendous.” … 

“Essentially, every employee is putting in one voluntary extra hour per day at work,” he explained “One extra hour to be used in the most advantageous way possible: finishing up projects, having a meeting with a client or vendor, assisting a coworker, getting hands dirty working in another department. Even cleaning a desk or organizing files, if it helps improve efficiency.” 

The numbers work, he said:

• 30 employees x 1 hour per day
• Multiplied by a 5 day workweek
• Equates to 150 extra hours
• Divide that number by 40 hours per standard workweek
• The result is 3.75, the equivalent of almost 4 full time employee work weeks
• For any company, an extra hour increases the work week from 40 to 45 hours and is a simple 12.5% increase. 

Before you decide to copy Greenleaf’s idea in your own workplace, consider that it almost certainly violates federal wage and hour law. The FLSA requires employees to be paid for all hours worked. Requiring employees to work an hour without pay violates this law. For private employers, there is no such thing as a volunteer employee. All work hours must be paid hours.

To demonstrate the anachronistic nature of the FLSA, however, consider that Greenleaf could have achieved the exact same goal without violating any laws. Instead of asking for an hour of work without pay, it could have simply reduced each employee’s effective weekly rate of pay by one-fortieth. In other words, one could figure out what hourly rate of pay would get an employee to 39 hours worth of pay for 40 hours of work. There is nothing illegal about prospectively reducing pay, as long as the hourly rate is above the minimum wage.

[Hat tip: Workplace Prof Blog]

Sleeping on-the-job costs security guard his disability discrimination case

You would think that the ability to awake on one’s watch is an important attribute for a security guard. One security guard working for a Cleveland hospital believed that his employer had a duty to reasonably accommodate the side effect of his heart medication by permitting him to sleep during his shift. Rongers v. University Hospitals of Cleveland (Cuyahoga County Court of Appeals, 5/7/09) [PDF] concluded differently.

Rongers, a night-shift sergeant at University Hospitals, was prescribed a beta blocker following a heart attack. According to Rongers, the medication “made him light-headed and tired. He had difficulty sleeping during the day and difficulty staying awake during his work hours.” Thus, he took naps “when needed.” He admitted that he napped while on duty five or six times, sometimes for as long as two hours at a stretch. When the hospital caught time on tape, it fired him. The court subsequently dismissed his disability discrimination lawsuit, a decision that the court of appeals affirmed:

Rongers admitted sleeping on the job meant that he was not performing his essential duties as a security guard. Rongers testified that an employer should not tolerate sleeping on the job. He said that he never held a job where it was acceptable to sleep while on duty and understood that when he did sleep on the job, he was not working. He further conceded that when he performed part-time security work outside of UH he actually discharged a member of his team for being asleep on the job. This evidence shows, as a matter of law, that Rongers could not safely and substantially perform his job duties when he required periods of sleep while on duty…. [A]n employee who requires extended periods of sleep while on the job cannot be performing the essential duties of the job.

It’s hard to argue with the result in this case, but it nevertheless makes an important point. Just because an employee has a medical condition does not mean that the employer must make an accommodation for that employee. Many conditions simply cannot be accommodated, given the nature of the job and the issue that must be addressed.

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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 #78

Tomorrow marks the Ohio Employer’s Law Blog’s two-year anniversary. In those two years, I’ve written 604 posts (a number that looks ever more amazing to me now that I’m looking at it on the screen), amassed more than 100,000 readers, hundreds of subscribers, and made countless friends. Thanks to everyone who’s taken the time to subscribe, read, comment, email, call, link, and even disagree with me. I look forward to continuing to bring everyone the latest employment law news and information from an unabashedly pro-business slant.

My favorite story of the week comes from Jeffrey Hirsch at the Workplace Prof Blog. I’ve written before about some alternatives to layoffs, including salary reductions, reduced work schedules, and furloughs. It seems one employer has taken this idea to the extreme. Facing a need to layoff employees, and blaming President Obama for his problems, this boss selected employees for layoff by whose cars had Obama bumper stickers.

Philip Gordon at the Workplace Privacy Counsel has a Q&A on the intersection between the swine flu and workplace privacy rights.

Dan Schwartz at the Connecticut Employment Law Blog shares his own thoughts on responding to an administrative charge, which differ from mine.

The EFCA Report reports on a compromise that may be in the works, removing the controversial card check provision from the EFCA and replacing it with a shortened 21-day election period, and requiring first-contract mediation instead of binding arbitration. Also, LaborPains.org digests George McGovern’s opposition to the EFCA’s arbitration provision.

Molly DiBianca at the Delaware Employment Law Blog summarizes the new notice requirements under the FMLA’s recent regulatory change.

Where Great Workplaces Start posts some information on implementing a drug-free workplace policy.

Paul Mollica’s Daily Developments in EEO Law, discussing a recent 6th circuit disparate impact case.

Kris Dunn, The HR Capitalist, attempts to answer an age old question – when an employee resigns, should you accept or reject a two-week notice?

The Word on Employment Law with John Phillips has an interesting take on whether an employer’s refusal to hire a white supremacist would violate Title VII’s prohibition against religious discrimination.

The FMLA Blog answers whether you can terminate an employee who has asked for FMLA-leave. Point of Law succinctly provides its own answer to this question, “offer them bigger exit packages.”

Nick Fishman at the Employeescreen IQ blog discusses a potential problem in hiring – what if you cannot obtain a timely verification of prior employment because the prior employer downsized and has no one to respond to your request?

The Business of Management discusses whether management can ever really quell an employee rumor mill about layoffs.

Today’s Workplace, on the Arbitration Fairness Act and ending forced arbitration of claims.

HR World reports on the challenge of work-life balance for working moms. Meanwhile, Carolyn Elefant at the Legal Blog Watch alerts everyone to a piece that will air on 20/20 tonight about “whether the Pregnancy Discrimination Act actually hurts women by deterring businesses from hiring them to begin with.”

Finally, since Sunday is Mother’s Day, I’m sharing Michael Mislaka’s piece about how his mom made him into the employment lawyer he is today.

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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.

EEOC chimes in on swine flu with guides on how to prepare and remain Title VII/ADA compliant

We’re well into week two of the swine flu, and this story continues to have legs. Now, the EEOC is offering its opinion on how employers can prepare for a workplace outbreak while remaining compliant with employment discrimination laws. It released two documents: Employment Discrimination and the 2009 H1N1 Flu Virus (Swine Flu) and ADA-Compliant Employer Preparedness For the H1N1 Flu Virus.

The former simply reminds employers, “Title VII of the Civil Rights Act prohibits employment discrimination on the basis of national origin, for example, discrimination against Mexicans.” In other words, do not discriminate against Mexicans simply because there is a slight chance they might be carrying the virus.

The latter goes more detail about how to prepare a workplace for an outbreak within the limits of the ADA. In addition to running through the general rules dealing with disability-related medical inquiries and medical exams, the agency also provides a brief, but helpful FAQ on issues such as how to ask employees about exposure, infection control practices, personal protective equipment, and telecommuting.

The most useful aspect of the EEOC’s guidance is a sample ADA-Compliant Pre-Pandemic Employee Survey. It is designed to assist employers in asking employees about factors, including chronic medical conditions, that may cause them to miss work in the event of a pandemic:

Directions:  Answer “yes” to the whole question without specifying the reason or reasons that apply to you.  Simply check “yes” or “no” at the bottom. In the event of a pandemic, would you be unable to come to work because of any of the following reasons: If schools or day-care centers were closed, you would need to care for a child; If other services were unavailable, you would need to care for other dependents; If public transport were sporadic or unavailable, you would be unable to travel to work, and/or; If you or a member of your household fall into one of the categories identified by CDC as being at high risk for serious complications from the pandemic influenza virus, you would be advised by public health authorities not to come to work (e.g., pregnant women; persons with compromised immune systems due to cancer, HIV, history of organ transplant or other medical conditions; persons less than 65 years of age with underlying chronic conditions; or persons over 65). Answer:   YES __________   NO __________

 

As I said last week, businesses should prepare for an infectious disease outbreak, but not panic over the possibility. This EEOC guidance, while not groundbreaking, does provide employers another arrow in their quiver of preparedness.

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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.

Dealing with the AWOL employee: What is “reasonable” employee notice for FMLA leave?

Lots of businesses have zero-tolerance no-call/no-show policies. Under such a policy, if an employee is AWOL from work for a predetermined number of consecutive days, that employee is considered to have abandoned his or her job and is terminated. Under such a policy, an employee is typically considered AWOL if he or she fails to call-in and report the absence prior to the start of the scheduled shift.

What happens, though, if an employee’s absence is caused by an unforeseen medical condition (to be topical, for example, the swine flu)? If the employee wants these absences to be protected by the FMLA, how much notice does the employee have to provide an employer? Or, to examine this question from the other side, when can an employer discipline or discharge an AWOL employee?

The recent amendments to the FMLA’s regulations answer these questions and provide employers with some guidance. According to section 825.303 of the FMLA’s regulations:

When the approximate timing of the need for leave is not foreseeable, an employee must provide notice to the employer as soon as practicable under the facts and circumstances of the particular case. It generally should be practicable for the employee to provide notice of leave that is unforeseeable within the time prescribed by the employer’s usual and customary notice requirements applicable to such leave….

When the need for leave is not foreseeable, an employee must comply with the employer’s usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances.

A recent opinion letter drafted by the Department of Labor’s Wage and Hour Division [PDF] explained how these rules apply to enforcing call-in procedures:

Where an employer’s usual and customary notice and procedural requirements for requesting leave are consistent with what is practicable given the particular circumstances of the employee’s need for leave, the employer’s notice requirements can be enforced…. Thus, in the example … of an employer policy requiring employees to call in one hour prior to their shift to report absences and an employee who is absent on Tuesday and Wednesday, but does not call in on either day and instead provides notice of his need for FMLA leave when he returns to work on Thursday, it is our opinion that unless unusual circumstances prevented the employee from providing notice consistent with the employer’s policy, the employer may deny FMLA leave for the absence.

What does all this mean for your business’s call-in procedures and no-call/no-show policy?

1. Reasonable, non-discriminatory policies will be enforced.

2. Unless an employee is completely incapacitated or otherwise unable to call-in or have someone else call-in for him or her, an employer does not have to excuse a failure to abide by the policy.

3. Call-in procedures should allow for someone other than the employee to call-in and report an unscheduled absence.

4. If an employee legitimately cannot call-in because of “unusual circumstances,” the employee must do so as soon as reasonably practical.

5. If the employee fails to follow these rules, the employer can deny FMLA leave for the absences, and discipline or discharge accordingly pursuant to its own internal rules and policies.

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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.