Is “card check” really dead?

Okay, so today is not “Best of…” as I had promised on Friday. This story is too important to pass on. The New York Times is reporting that Senate Democrats may have worked out a compromise on the Employee Free Choice Act that would eliminate its controversial card check provisions. The equally controversial mandatory arbitration provisions remain in the floated compromise.

For more info on this evolving story, check out what some of my fellow bloggers have to say:

• The EFCA Report: EFCA "Compromise": Quick Elections and More...
• World of Work: Democrats Delete Card Check from Employee Free Choice Act
• Dan Schwartz: EFCA "Compromise" in the Works?
• The Word on Employment Law with John Phillips: EFCA: Card Check Bites Dust
• Workplace Prof Blog: New EFCA Compromise, with no Card-Check
• Labor Pains: Dems Say They Will Drop Card Check From EFCA
• Talking Points Memo: EFCA Compromise? Moderates To Embrace Labor Reform...Without Card Check
• Lawffice Space: EFCA Only Part-Dead

Before we all get excited that card check might be going the way of the dodo, let me suggest that Senate Democrats floated this story to the Times as a trial balloon to see if enough moderates would bite to pass some form of labor reform this year. In other words, the only way we’ll know if there is a compromise is if and when President Obama signs the law. Stay tuned for more information on this story as it develops.

The rest of the week … best of (I think).

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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 #87

Many harassment cases involve things being rubbed. Walter Olson, whose Overlawyered just celebrated its 10th anniversary, brings us what may be the greatest harassment lawsuit ever filed: “Saudi family sues genie, alleges harassment.” 

If you need yet another reminder why it’s important to have a social networking policy for your organization, the Strategic HR Lawyer discusses the 20.2 million people between the ages of 35 and 54 who are registered on Facebook. Ellen Simon, writing from the employee’s perspective at Today’s Workplace, gives another reason to have such a policy  – employees terminated for writing something in a blog.

World of Work reports on a Tennessee court which held that an employee’s “shy bladder syndrome” qualified as an ADA-protected disability.

Debra Weiss at the ABA Journal Blog notes that GE’s CEO thinks that women make risky career moves when they take time off to start families.

Jason Morris at the Employeescreen IQ Blog reports on newly introduced legislation in Congress, the Equal Employment for All Act, that would prohibit the use of consumer credit checks against prospective and current employees for the purposes of making adverse employment decisions.

Dan Schwartz at the Connecticut Employment Law Blog talks about some the legal risks inherent in mandatory furloughs.

Molly DiBianca at the Delaware Employment Law Blog provides a very good summary on the legal issues and risks inherent in employment testing.

Jay Shepherd at Gruntled Employees debates the pros and cons of noncompete agreements.

Adams Drafting deconstructs the use of the word “salary” in a separation agreement in relation to the inclusion of bonuses.

Mark Toth at the Manpower Employment Blawg talks about two terms that you might not be familiar with – “E-Verify” and “No-Match.”

The Arkansas Employment Law Blog discusses the importance of properly classifying administrative employees under the FLSA.

Michael Haberman’s HR Observations observes ageism in the workplace.

I’m on a working vacation next week – speaking on the FMLA at the SEAK 29th Annual National Workers' Compensation and Occupational Medicine Conference on Cape Cod. I’ll be running “Best Of” next week, but should be back next Friday with a fresh set of the week’s best links.

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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 enters the fray on proper waivers of discrimination claims

As unemployment heads towards 10%, layoffs have unfortunately become the norm for many employers. As predicted, the EEOC has seen both a spike in age discrimination charges and requests by employers for laid-off employees to sign waivers in exchange for severance packages. I’ve previously provided guidance to employers to help navigate the tricky waters of lawful age discrimination waivers under the Older Workers Benefit Protection Act: Refresher on age discrimination waivers and Defining the proper "decisional unit" is key in legitimacy of RIFs. This week, the EEOC entered the fray by publishing a short Q&A to help employers and employees understand waivers of discrimination claims in severance agreements.

While this EEOC guidance is more geared to employees, it offers some good nuggets of information for employers considering offering severance packages to terminated employees:

1. Severance is not mandatory. No law requires a company to offer a laid-off or otherwise terminated employee severance. Nevertheless, in all but the most egregious of terminations, employers should consider severance pay in exchange for a signed release if for no other reason than the peace of mind that a comprehensive waiver provides. I can reasonably assure employers the that total cost of severance paid out to all employees in a year will be less than the cost of defending one discrimination lawsuit.

2. Any waiver must be “knowing and voluntary.” Is the agreement clearly written in a manner understandable to the employee? Was the employee given enough time to think about whether to accept the severance offer and sign the agreement? Was the employee encouraged to talk to a lawyer before signing? Was the employee given the chance to negotiate terms? Was the employee offered something above and beyond that which is already owed to him or her?

3. Agreements cannot bar EEOC charges. No severance agreement can prohibit an employee from filing a charge with the EEOC, or limit an employee’s right to testify, assist, or participate in an investigation, hearing, or proceeding conducted by the EEOC. Any provision in a waiver that attempts to waive these rights is invalid and unenforceable. An agreement can, however, waive an employee’s right to any monetary remuneration from a successful EEOC proceeding.

Most importantly, employers act at their own peril by offering severance agreements to employees without having them prepared, or at a minimum reviewed, by an attorney before presentation to the employee. The EEOC has done employers a disservice by giving some form language for severance agreements, which may or may not fit an employer’s specific need. It may save a few dollars to use a form found on the Internet without first consulting an attorney. It will cost exponentially more to hire a lawyer to fix a mistake after the fact, especially if the mistake does not come up until an ex-employee files a lawsuit because of a loophole or error in a severance agreement.

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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.

Employees’ social networking continues to confound employers

Let’s suppose that you learn that a group of employees have created an on-line group that’s sole purpose is to provide a forum for other employees to bash your company. Do you have the right to require the employees to provide the password to enable you access the forum and its members? According to one federal court in New Jersey, the answer is no.

According to Law.com, a federal jury has awarded $15,000 to two restaurant employees terminated for criticizing their employer on MySpace. The jury determined that by requiring the employees to divulge their passwords, the employer violated the Stored Communications Act, a federal law that extends liability to parties that exceed authorization to access electronic communications.

This area of the law is decidedly gray. The question for you, as an employer, to ask yourself before you undertake a gray-area employment practice is whether you want to foot the legal bill to prove its legality if a lawsuit is filed. In the case discussed above, the restaurant did not have to access the on-line forum for grounds to terminate the two employees who administered it. A manager had reliable information that the two at-will employees were acting unprofessionally by flaming management. While the damages to be paid were low, the attorneys’ fees expended by the employer to defend its practice were certainly significantly higher. Companies should consider letting others push the legal envelope and only adopt tried and tested employment policies and practices that clearly pass legal muster.

Do you know? Ohio has criminal penalties for unauthorized computer use or access

Ohio has criminal statutes that cover employees’ unauthorized use or access of their employers’ computers. Ohio Revised Code 2913.04 criminalizes, as a felony, the unauthorized use of property and the unauthorized access to a computer:

(A) No person shall knowingly use or operate the property of another without the consent of the owner or person authorized to give consent.

(B) No person, in any manner and by any means, including, but not limited to, computer hacking, shall knowingly gain access to, attempt to gain access to, or cause access to be gained to any computer, computer system, computer network, cable service, cable system, telecommunications device, telecommunications service, or information service without the consent of, or beyond the scope of the express or implied consent of, the owner of the computer, computer system, computer network, cable service, cable system, telecommunications device, telecommunications service, or information service or other person authorized to give consent.

State v. Wolf (Ohio Ct. App. 4/28/09) [PDF] illustrates how these statutes operate.

Richard Lee Wolf worked at the Shelby, Ohio, Wastewater Treatment Plant. When a supervisor was cleaning files off an old computer, he came across a nude photo of Wolf. During the subsequent investigation, Wolf admitted that he had visited a website called “Adult Friend Finder” during work hours to meet women, some of whom asked for a nude picture. The city then conducted a forensic examination of the computer’s hard drive. and found 703 pornographic photos. It also found several sexually explicit emails, such as the following, in which Wolf appears to have been soliciting services from a dominatrix named Madam Patrice:

First off, thank you for taking the time to remember me. I have yet to be at the mercy of a true dom mistress. You are incredibly seductive, and I would love for you to be the first one to ‘break me in’. We’re talking ‘light stuff’ here, OK! Also, I have never been involved in any monetary transactions or arrangements….so this is all new to me. Obviously I would be with you for at least an hour, but I would prefer to be with you for at (sic) 2 hrs, contingent on your discount. Is it possible to spend the last half hour or so being your lover? Whatever is possible, please let me know. I look forward to hearing from you again. Have a great weekend. Rick.

When the city confronted Wolf with the mass of photos and emails, Wolf admitted that he had spent over 100 hours of work time on the internet for personal business. As a result of the investigation, Wolf was not only fired, but also successfully prosecuted under 2913.04. The court found that the convictions were warranted because the city had not authorized or consented to Wolf’s use of his work computer to upload nude photos or himself, to access pornographic websites, or to solicit sex for money.

Only extreme case will justify an employer filing criminal charges against an employee for misuse of work computers. Nevertheless, the Wolf case illustrates the importance of periodic monitoring how employees use workplace technology.

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

Court adopts no-harm, no-foul approach to employer misstatements about FMLA coverage

By definition, the FMLA only applies to those businesses that employ 50 or more employees within a 75-mile radius. A smaller employer, however, can render itself covered by the FMLA by making certain representations about FMLA coverage to its employees. For example, see Don't estop yourself into coverage.

In Dobrowski v. Jay Dee Contractors (6th Cir. 7/8/09) [PDF], the 6th Circuit adopts a common sense, no-harm/no-foul approach to coverage estoppel under the FMLA. Even though Jay Dee had less than 50 employees and was not covered by the FMLA, when Daniel Dobrowski needed time off for surgery Jay Dee’s president provided him a form entitled, “Application for Leave of Absence under the FMLA.” Prior his leave, the corporate president also delivered to Dobrowski a letter memorializing the approval of his leave, indicating that “[p]ursuant to the Family and Medical Leave Act, Jay Dee Contractors, Inc. will leave [Dobrowski’s] position open for at least twelve (12) weeks from October 18, 2004,” and enclosing a Department of Labor publication certifying his FMLA leave. When Jay Dee terminated Dobrowski at the end of his leave, he filed suit under the FMLA.

The 6th Circuit affirmed the district court’s dismissal of the FMLA claim. The court recognized that even though Jay Dee was too small to be covered by the FMLA, it could estop itself into coverage if Dobrowski could show (1) a definite misrepresentation as to a material fact, (2) a reasonable reliance on the misrepresentation, and (3) a resulting detriment to the party reasonably relying on the misrepresentation. The court found Dobrowski’s FMLA claim lacking on the 2nd element – reasonable reliance:

There is no evidence in the record to show that he “change[d] his position” in reliance on the belief that his leave would be FMLA-protected…. Had he relied on the erroneous representations, one would expect Dobrowski to be able to point to some action or statement that indicated that his decision to have the surgery was contingent on his understanding of his FMLA status; or perhaps evidence that raises an inference of such contingency – for example, a record that he made an inquiry as to his rights, asked for written confirmation of his leave arrangement, or changed his behavior after being told he was eligible….

If anything, the record shows that Dobrowski had already decided on and scheduled the surgery by the time he was informed of his eligibility. There is no evidence of a discussion of the FMLA eligibility prior to the application for leave filed with Jay Dee on September 27 – about three weeks prior to his October 15 surgery, and well after he informed the company of his planned absence.

The court indicated that its result might have been different if, for example, Dobrowski had “remained on leave beyond his FMLA period after receiving written assurance from his employer that his extended leave would be covered.” But, in the court’s correct view, “the question is not whether Dobrowski acted in conformity with the FMLA … but whether he changed his behavior in reliance on the Act.”

This case gives some solace to small businesses that FMLA coverage will not be granted in all cases in which the status of such coverage is misrepresented. Employers should not, however, take Dobrowski as carte blanche to make such misrepresentations. Employers still need to be mindful of the coverage thresholds for statutes to ensure that they are making informed decisions about the benefits and other terms and conditions offered to 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.

WIRTW #86

Welcome to this Michael Jackson-free edition of What I’m Reading This Week.

As an update to my post yesterday on racism at The Valley Swim Club, I recommend two posts by a high school classmate of mine, Adam Bonin, at the Daily Kos, whose done an excellent job covering this story: Valley Swim Club: Day Two, and The Valley Club Is Being Investigated.

If an employee uses her company-issued computer to exchange emails with her attorney before she sues you for discrimination, are you entitled to access and review those emails? According to the Workplace Privacy Counsel, per one New Jersey appellate court the answer is no: “[A]ccording to the court, an employer cannot read an employee’s personal e-mail, even when the employer has a policy stating that the employee has no reasonable expectation of privacy, except when the content of the e-mail needs to be known to determine whether the employee violated company policy or acted unlawfully.”

Jay Shepherd’s Gruntled Employees has two excellent posts from the last couple of weeks: The wrong question, which discusses what to consider when an employee asks for a special accommodation, and Sugarcoated terminations, which talks about what not to say when terminating an employee.

Michael Fox’s Jottings By An Employer’s Lawyer has some interesting information on average UK jury verdicts in employment cases.

Molly DiBianca at the Delaware Employment Law Blog lists 3 reasons why employers don’t have a social networking policy. Kris Dunn, The HR Capitalist, shares his thoughts on the same topic. If you are looking to implement one, take a look at my 7 consideration for social networking policies, and then call or email me.

The FMLA Blog reports on a case out of Southern Ohio in which the court found an employer acted unreasonably by only allowing an employee three days to submit a doctor’s note certifying the need for intermittent leave.

Dennis Westlind at World of Work discusses the FOREWARN Act, which would expand the scope of the WARN Act to cover smaller employers.

In what is maybe the least surprising story of the fortnight, LaborPains.org reports that it only took newly-minted Senator Al Franken 6 hours to sponsor the EFCA, his first piece of legislation. Meanwhile, The Chamber Post makes the case for why we are better without unions at all.

Darcy Dees at the Compensation Cafe observes that employees will often prefer to be classified as exempt and not receive overtime because they perceive it to be an elevation in status within the organization.

The Warren & Hays Blog comments on the dangers of workplace sexual stereotyping.

David Clark at the EBG Trade Secrets and Noncompete Blog discusses a New York decision refusing to enforce a noncompete agreement against an ex-employee because he had intentionally signed the contract in the wrong place.

The Washington Labor & Employment Wire reports on efforts on Capitol Hill to tie the minimum wage to the federal poverty threshold. Just what American businesses need, a dramatically higher minimum wage.

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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.

Sadly, racism is alive and well

I grew up in Northeast Philadelphia. Not more than a mile from my house, just across the border in Huntingdon Valley, sits the Valley Swim Club. It was not so quietly known that families from my neighborhood should not bother trying to join, since the club was renowned for its anti-Semitism. Today’s Philadelphia Daily News confirms that the problems that existed at this club decades ago lives on today.

The newspaper reports that a Philadelphia day camp paid the Valley Swim Club $1,950 for its mostly black and Hispanic campers to use its pool for a week. After several of the club’s white members made disparaging comments about the campers, the club rescinded the contract and refunded the fee. While the club’s president claims that race had nothing to do with the decision to break the contract, he has also publicly stated that the club “underestimated the impact” the campers would have on the club, that they “fundamentally changed the atmosphere,” and that “there was concern that a lot of kids would change the complexion” of the club.

Philly’s Fox 29 provides more details, including interviews with children who overheard moms at the club saying, “What are all these black kids doing here? They might do something to my child.”

This non-employment story serves as a sad reminder to everyone that racism lives on, although usually not as openly and obviously as what appears to be practiced at the Valley Swim Club. Even in 2009, businesses need to remain vigilant in combating 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.

Announcing KJK’s Proprietary HR and Employment Law Audit

I’ve written in the past about the importance of routine, proactive audits of employment policies and practices:

• Use a wage and hour audit to proactively head off claims.
• Penny-wise, pound-foolish employment practices.
• Department of Labor to step up enforcement; employers should step up self-audits.

An article I found on Business Management Daily further underscores this point:

The economy is a shambles, and employers are doing everything they can to stay in business. That includes terminations, salary and wage cuts and temporary furloughs. Nearly every one of those moves carries litigation risk. With little to lose, more and more employees are willing to stake bias claims, hoping to score a big settlement. Their allies are attorneys who will look for any reason to sue. Need convincing? The dramatic increase in EEOC complaints rose 15.2% from 2007 to 2008, illustrating the risk employers take with every layoff decision.

Have your company’s personnel policies and practices had a checkup lately? A comprehensive audit is one of the easiest ways to spot problems.

The article then lists 17 different areas that employers should audit to ensure legal compliance.

While this list is a good start, it is nowhere near complete. I’ve developed a proprietary 200-point audit of HR and employment policies and practices. If you are interested in discovering which areas of your business are out of compliance and open to legal risk, I am willing to conduct this preliminary audit without charge. Please contact me for the details.

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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.

Is LinkedIn a risk for employers?

One of the more interesting features of LinkedIn is the ability to recommend your connections. In fact, LinkedIn will prod you to recommend others to further complete your profile. For example, my LinkedIn profile is 90% complete, and it tells me I can get to 95% if I recommend another person. Most successful professionals share two personality traits that will cause them to strive for that 100% goal – overachieving and type-A personalities.

In today’s National Law Journal, however, Tresa Baldas makes an excellent point about the legal risks posed by LinkedIn recommendations. Let’s say, for example, a manager provides one of his subordinates a glowing LinkedIn recommendation. If that employee is later fired, the odds are pretty high that the employee will try to use that recommendation as evidence of pretext in a later discrimination suit.

Social media provides a gold mine of information to use in employment lawsuits. Employees’ Facebook pages, YouTube videos, and blogs are all fertile ground for discovering useful information to use against an employee. If employers are going to swim in these waters, they need to be equally mindful that what they write about an employee can also be used against the employer. When drafting a social media policy, consider these risks and decide whether an outright ban on LinkedIn recommendations is best for your organization.

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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? Perfect attendance bonuses and the FMLA

Before the recent FMLA regulatory amendments took effect, an employer could not  deny a perfect attendance bonus to an employee whose only attendance blemishes were the result of FMLA-leave. As of Jan. 16, 2009, however, employees on FMLA-leave could lawfully be denied a perfect attendance bonus:

[I]f a bonus or other payment is based on the achievement of a specified goal such as hours worked, products sold or perfect attendance, and the employee has not met the goal due to FMLA leave, then the payment may be denied, unless otherwise paid to employees on an equivalent leave status for a reason that does not qualify as FMLA leave.

In other words, as long as other employees taking similar time off are also not eligible for the same bonus, an employer can deny a perfect attendance bonus without fear of FMLA liability. The Department of Labor gives the example of an who uses paid vacation leave for a non-FMLA purpose. If an employer still provides a perfect attendance bonus to that employee, then it would be unlawful to deny the same bonus to an employee who used paid vacation leave for an FMLA-protected purpose.

While employers are now within their rights to deny perfect attendance bonuses to employees who take FMLA leave, the bigger question is whether an employer would want to withhold such a bonus. What message does that send to your employees? We value your dedication to getting to work everyday and on-time, but only if an unforeseen medical condition does not get in the way? Or is it better to pay out the bonus, even to those employees who have FMLA absences?

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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.

Acting on inaccurate information is not enough to establish pretext

Four years after an employer terminates an employee for lying, the terminated employee passes a polygraph test that showed that she likely did not tell the lie that led to her termination. Can the employee use the results of that polygraph to show that her former employer had a pretext for a retaliation against her for her prior FMLA-leave? According to an Ohio appellate court in Ningard v. Shin Etsu Silicones (Summit Cty. 6/30/2009) [PDF], the answer is no.

In September 2004, Pamela Ningard took a 12-week FMLA leave from her employer, Shin Etsu Silicones. After missing a day of work in October 2004, Shin Etsu placed her on a last chance agreement because she did not have any remaining paid time off. In December 2004, Shin Etsu terminated Ningard under the last chance agreement after a customer reported that Ningard was spreading false information about the a bonus payment by Shin Etsu to the customer.

Ningard sued for retaliation under the FMLA. Four years after the termination, Ningard passed a polygraph examination, which she claimed showed that Shin Etsu unlawfully terminated her. The appellate court disagreed: “Ningard cannot point to a polygraph examination, which occurred nearly four years after the adverse employment action, to show that Shin-Etsu’s response … was actually a pretext for retaliation. This new information does not show that the reason given by Shin-Etsu was false, but rather that it may have acted upon inaccurate information.” Instead, the three-month gap between the FMLA-leave and the termination, coupled with no other evidence of retaliation, led to the proper dismissal of the lawsuit.

The lesson for employers is on oldie but goodie –  a court will not second-guess a legitimate reason for termination merely because it might later be proven to be incorrect. If the employer harbors a reasonable, good faith business justification, a that fact that it might later be proven to be wrong should not create pretext.

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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.

An Independence Day thought

As we prepare to celebrate our freedom this July 4th, I thought I’d share the following letter to the editor about the Ricci decision, by Carol Polley of Eden Prairie, Minn., published in yesterday’s New York Times:

To the Editor:

If a kicker’s football fails to reach the goalposts, he does not get a do-over with a shorter distance between himself and the goalposts.

If a student does not pass the test, he does not get a do-over with easier questions.

When my house is on fire I want the best firefighter, and I don’t care what color he or she is.

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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.

Court holds wage and hour laws don’t protect oral complaints

Imagine an employee walks into your HR office and complains that the company has misclassified her as exempt and that she is owed overtime. According to the 7th Circuit in Kasten v. Saint-Gobain Plastics (7th Cir. 06/29/09) [PDF], you can actually fire that employee without fear of retaliation as long as the the employee only makes the complaint orally, and does not put it in writing.

The FLSA’s anti-retaliation provision provides that an employer cannot “discharge or in any other manner discriminate against any employee because such employee has filed any complaint….” The court held that unwritten verbal complaints are not protected activity: “[T]he natural understanding of the phrase ‘file any complaint’ requires the submission of some writing to an employer….”

Employers should not get overly excited about this decision. The 7th Circuit’s holding in Kasten appears to be the minority view. Indeed, the 6th Circuit (which covers Ohio) in EEOC v. Romeo Community Schools, found that an employee’s oral complaints to a supervisor were protected. Employers act at their own peril if they fire employees who make oral wage and hour internal complaints. In other words, the next time an employee walks into your HR office and voices that complaint, don’t fire her. Instead, listen. She might even be right.

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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.

Employees’ web-based email may be off-limits to employers

It is generally understood by employees and employers that employer-provided email systems belong to the the employer, and that employees do not enjoy any rights of ownership or privacy to that which is sent or received through that system. With workplace internet access the norm, many employees also have the ability to check personal web-based email accounts (Gmail, Yahoo, and the like) right from their desks. Many employers mistakenly believe that they have the same rights to monitor and access employees’ non-work, personal email that may happen to transmit through their system.

According to an article posted on Law.com last week, employers may be opening themselves up to potential liability by prying into employees’ own email accounts. The article discusses recent court interpretations of the Stored Communications Act, a federal statute that creates liability for whoever “intentionally accesses without authorization a facility through which an electronic communication service is provided” or “intentionally exceeds an authorization to access that facility.” In layman’s terms, courts are allowing employees to use the SCA to attack employers who probe into personal email information accessed from work.

Something to think about before you ask an IT person to look into an employee’s Gmail to see if he sent that harassing message, or to see if he’s sending confidential information to your chief competitor. You may be breaking one law by trying to comply with another.

Ricci v. DeStefano: Supreme Court rules on discriminatory Hobson’s choice

Perhaps no decision has been more eagerly anticipated this year by employment lawyers than the Supreme Court’s opinion in Ricci v. DeStefano. If you are unfamiliar with the case, it concerns a municipality refusing to certify the results of a civil service exam after it concluded that it was racially biased. Specifically, the black test-takers pass rate was half that of white test-takers. The white applicants who scored highest on the exam sued for race discrimination. Both the trial and appellate court ruled for the city, finding that the white applicants did not have a Title VII claim because the city was trying to comply with its Title VII obligations to its black applicants. This case asks a fundamental question – do our anti-discrimination laws guarantee preferential treatment for the historically underrepresented, or do they balance equal treatment for all?

In Ricci v. DeStefano [PDF], the Supreme Court held the following:

1. The city’s action in disregarding the test results to the detriment of the white firefighters that received the highest scores violated Title VII.

2. Avoiding disparate-impact liability does not excuse what otherwise would be prohibited disparate-treatment discrimination, unless the employer has a strong-basis-in-evidence that the employer will be liable under Title VII by accepting the challenged results.

3. To have a strong basis in evidence that the city would have been liable under Title VII had it certified the test results, the city would have had to prove that the exams at issue were not job related and consistent with business necessity, or that it had refused to adopt an equally valid, less discriminatory alternative.

The following quote from the Ricci decision sums up the Court’s view of the Hobson’s choice presented to employers between a policy or practice that has a disparate impact one versus an intentional decision to the discriminatory detriment of another:

Our holding today clarifies how Title VII applies to resolve competing expectations under the disparate-treatment and disparate-impact provisions. If, after it certifies the test results, the City faces a disparate-impact suit, then in light of our holding today it should be clear that the City would avoid disparate-impact liability based on the strong basis in evidence that, had it not certified the results, it would have been subject to disparate-treatment liability.

I was going to write something deep about the damned-if-you-do-damned-if-you-don’t decisions that employers face, but I can’t do it any better than Walter Olson (the proprietor of the awesome Overlawyered blog and Point of Law forum) did on Forbes.com:

It's a question HR managers and company lawyers are used to facing every day. Would you rather field the legal claims that result from targeted layoffs, or the ones that result from sacking people regardless of performance? Would you rather face a defamation lawsuit for mentioning the reasons for a problem employee's departure, or a failure-to-warn lawsuit for not mentioning them? Will your policy on religious proselytizing in the workplace get you sued by the believers, or by the atheists? But the courts have no general theory of sued-if-you-do, sued-if-you-don't scenarios, and often they seem unwilling to give the matter much thought at all. Monday, for a change, these issues took center stage…. Monday's crucial ruling is on the question: how serious does the prospect of litigation over an employment practice have to be before an employer is allowed to lean over in the opposite (discriminatory) direction to avoid liability?

The Ricci decision does not cure this problem, it merely flips it on it’s head. The employer in Ricci chose to protect the black employees and got sued by the white employees. After Ricci, an employer will have to choose the white employees and defend a lawsuit by the black employees. It’s little solace that this lawsuit will be defensible (at least according to the Court), because employers will still have to expend the legal fees to have the likely disparate impact lawsuit dismissed.

Stayed tuned – I’ll have further thoughts on what this important decision means for employers in an upcoming post. For other commentary on Ricci, I recommend checking out the following from my blogging brethren:

• Lyle Denniston at SCOTUS Blog: Analysis: Ricci, without the rhetoric.
• Dan Schwartz’s Connecticut Employment Law Blog: Five Things Employers Can Learn from the Ricci v. DeStefano Case.
• Michael Maslanka’s Work Matters: What Ricci means for employers.
• Marcia McCormick, at the Workplace Prof Blog: Ricci Analysis Part 1.
• Michael Fox’s Jottings By An Employer’s Lawyer: Supreme Court Gives Victory to New Have Firefighters.
• Marc Alifanz at World of Work: Ricci v. DeStefano -- Supreme Court Holds City Violated Title VII By Rejecting Racially Disparate Test Results.
• John Rosenberg at Discriminations: Ricci et al. Vindicated; Ricci Reversed!

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

No wonder fighting sexual harassment is an uphill battle

How are employers supposed to fight workplace harassment when employees are bombarded by images like this, an actual ad for Burger King’s new “Super Seven Incher”?

You can ask anyone who knows me – I am not a prude, not be any stretch of the imagination. I think it’s hilarious that Burger King has chosen the least subtle innuendo possible to advertise its new sandwich. But, if this what your employees see when they open the newspaper or turn on their TV, is it any wonder that they think it acceptable to forward images not that much more offensive this this one through the company email system?

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

WIRTW #85

Last week, Bozeman, Mont., began requiring all job applicants to provide a list of all “current personal or business websites, web pages, or memberships on any Internet-based chat rooms, social clubs or forums, to include but not limited to:  Facebook, Google, Yahoo, YouTube.com, MySpace, etc,” including their user names, other login info, and even their passwords. The Delaware Employment Law Blog and the California Employment Law Report have the details. Just as quickly, World of Work reports, the city reversed course and got rid of this awful practice. for other news in the world of background checks and employee screening, I recommend the Employeescreen IQ Blog on a background check that should have been done, and the Connecticut Employment Law Blog, on the risks of doing one incorrectly.

In the last couple of weeks, I’ve written a lot about social networking (Do you know? Facebook and Twitter and blogs, oh my! What is social networking and why should you care? and Drafting a social networking policy: 7 considerations). Kris Dunn, The HR Capitalist, has his own take on the issue.
Steph Gregor, in the Columbus, Ohio, Other Paper, writes on workplace lactation rights (and quotes me).

Dan Schwartz at the Connecticut Employment Law Blog has a good, basic lesson on “cloud computing.”

Jay Shepherd at Gruntled Employees, on why you shouldn’t nickel-and-dime your employees.
LaborPains notes that even the unions cannot agree that the mandatory arbitration provisions of the EFCA are a good idea.

Mike Elk at Today’s Workplace comments that he stopped drinking Yuengling beer because it is no longer a union shop (politics would never come between me and my favorite beer).

At HR Observations, Michael Haberman observes that labor unions are bad.

The FMLA Blog points out that just because an employee happens to be on FMLA leave does not mean that he or she cannot be fired.
Walter Olson’s Overlawyered reports that per a settlement, UPS will now permit the hard-of-hearing to drive certain trucks.

Mitchell Rubenstein at the Adjunct Law Prof Blog, on whether keystroke monitoring of employees’ computers violates federal law.

Another week brings us news of more new pending federal workplace laws. The Warren & Hays Employment Blog discusses the Family Friendly Workplace Act, which would allow for comp time in lieu of overtime. The Washington Labor & Employment Wire reports on another attempt at the Employment Non-Discrimination Act, which would add protections for actual or perceived sexual orientation or gender identity to Title VII.

Hector Chichoni at the Florida Employment & Immigration Blog thoroughly dissects the issues that could arise when layoffs hit employees with H-1B visas.

Ann Bares at Compensation Force tackles the issue of the lingering effect of furloughs.

Darcy Dees at Compensation Cafe opines on leveraging flexible work schedules as rewards for good employees.

WIRTW is taking next Friday off to celebrate our nation’s freedom, and will return on July 10 with a supersized two-week edition.

Workplace smartphone etiquette – smartphones versus smart use

When I started my first legal job during law school, the biggest distraction was  minesweeper on my desktop PC. Today, distractions are bigger, sleeker, and much more available. And, they have unshackled themselves from the desktop. Stop and think about the last meeting you attended when someone wasn’t fiddling with a Blackberry, iPhone, or other PDA.

In Sunday’s New York Times, Alex Williams takes up the etiquette debate of PDAs and corporate meetings:

As Web-enabled smartphones have become standard on the belts and in the totes of executives, people in meetings are increasingly caving in to temptation to check e-mail, Facebook, Twitter, even (shhh!) ESPN.com.

But a spirited debate about etiquette has broken out. Traditionalists say the use of BlackBerrys and iPhones in meetings is as gauche as ordering out for pizza. Techno-evangelists insist that to ignore real-time text messages in a need-it-yesterday world is to invite peril….

The phone use has become routine in the corporate and political worlds — and grating to many. A third of more than 5,300 workers polled in May by Yahoo HotJobs, a career research and job listings Web site, said they frequently checked e-mail in meetings. Nearly 20 percent said they had been castigated for poor manners regarding wireless devices.

Despite resistance, the etiquette debate seems to be tilting in the favor of smartphone use, many executives said. Managing directors do it. Summer associates do it. It spans gender and generation, private and public sectors.

At Gruntled Employees this morning, Jay Shepherd asks, “Does your company need a smartphone policy?” Here’s my two cents. If we are going to provide employees the technology to stay connected 24/7, and expect them to be available 24/7 because of this technology, we should trust them to be responsible with it. Technology has conditioned customers and clients to expect immediate responses to questions and problems. So, if an employee is spending some time during a meeting responding to a client, this responsiveness should be lauded, not legislated via a policy. On the other hand, if an employee is reading about the Cavs’ acquisition of Shaq, maybe the problem is with the meeting itself and not the employee.

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

When is a failure to accommodate an employee’s religion actionable?

If an employee approaches your HR department and asks for an accommodation for his or her religion, you might think that your company has an automatic obligation to provide the accommodation. Reed v. United Auto Workers (6th Cir. 6/23/09) [PDF], suggests otherwise.

In Reed, a union member claimed that the UAW discriminated against him because of his religion by failing to reasonably accommodate his religious objection to financially supporting the union.

Under Title VII employers (and labor unions) have a statutory obligation to reasonably accommodate the religious observances of its employees, short of incurring an undue hardship. To establish a failure to accommodate claim, an employee must show: (1) that s/he holds a sincere religious belief that conflicts with an employment requirement; (2) s/he has informed the employer about the conflict; and (3) s/he was discharged or disciplined for failing to comply with the conflicting employment requirement. If an employee makes this showing, the employer (or, in this case, labor union) can avoid liability by showing that it could not reasonably accommodate the employee without undue hardship.

Reed’s claim failed because he could not show that he was discharged or disciplined as a result of his religious belief: “Unless a plaintiff has suffered some independent harm caused by a conflict between his employment obligation and his religion, a defendant has no duty to make any kind of accommodation.”

The next time you are faced with an employee requesting a workplace accommodation for some religious belief, do not necessarily assume that the accommodation is owed. The employee’s religious belief may not be sincere, the accommodation might be unreasonable and pose an undue hardship, or, as was the case in Reed, the failure to provide the accommodation may not result in any discipline or discharge. 

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

Do you know? Handling a chronically ill employee

In the June 19 New York Times, Lesley Alderman provided chronically ill employees some practical information on how to protect their jobs while coping with a chronic illness. Employers also have to protect themselves from liability in the same situation. Two laws govern employees with chronic illnesses: the Family and Medical Leave Act and the Americans with Disabilities Act. It is crucial for employers to understand how these two laws intersect and interact.

The FMLA allows for 12 weeks of unpaid leave for, among other circumstances, an employee’s own serious health condition. A serious health condition is defined as illness, injury, impairment, or physical or mental condition that requires inpatient care or continuing treatment by a health care provider. Only those who have been employed for at least a year, and who have worked a minimum of 1,250 hours in the preceding year, are covered by the FMLA.

Unlike the FMLA, the ADA covers employees on day-one of employment. The ADA also differs from the FMLA in the scope of injuries and illnesses it covers. The FMLA merely requires a serious health condition that prevents the employee from working on a temporary basis (typically at least three days). The ADA, however, requires that the employee must have a current, chronic medical condition that substantially limits one or more major life activities on an ongoing basis. The ADA does not have a leave requirement, although it does require employers to reasonably accommodate employees’ disabilities. Under the ADA, once an employer learns that an employee might need a reasonable accommodation to perform the essential functions of the job, the employer must engage the employee in an interactive process to determine what that reasonable accommodation might be. An extended leave of absence, beyond the FMLA’s 12 weeks, might be reasonable accommodation, depending on the illness or injury, the nature of the job, and the employer’s needs.

The biggest mistake an employer can make is to terminate an employee automatically upon the expiration the FMLA-leave entitlement, without giving any consideration to whether that employee is covered by the ADA and whether a temporarily extended leave or other temporary job restructuring will enable that employee to remain employed.

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

Have you thought about these four issues before you fired that employee?

BLR’s HR Daily Advisor recently published a helpful checklist of the 10 Questions You Must Ask Before Firing (part 1 and part 2). I have synthesized the list into four key considerations:

1. Have you followed your own documents? There are several documents that inform the employment relationship – handbooks and other policy manuals, and contracts, both with individual employees and union agreements. Any well-written handbook should have a disclaimer that it is not a contract, that it is not binding on the company, and that the employee should not rely on it as such. Companies should nevertheless be careful to ensure that if it deviates from a policy, it has a good reason to do so an a history of similar deviations in similar circumstances. Union agreements have their own unique set of issues. Does the contract allow for termination? If so, are there rules or processes that must be followed? Are you acting out of an anti-union animus?

2. Have you been consistent? Consistency is paramount in any employment decision, and will go a long way to dispelling inferences of discrimination. Consistency looks at how you treated similarly-situated employees in similar circumstances. Two special circumstances merit mention. Retaliation is the single biggest employment practices risk facing employers today. If an employee has recently engaged in protected activity, triple-check to make sure the rest of your house is in order before terminating. In Ohio, pregnant employees gain special rights on their first day of employment, and have to be given their job back the expiration of maternity leave.

3. Do you have a well-documented business reason for the termination? When an employer relies on undocumented accounts of misconduct to support a termination, it is fair for a court or jury to infer that those accounts were created post-termination and question their legitimacy. So, have all performance and other problems with the employee been documented? Has the employee signed off on the record, or has it been documented that the employee refused to sign?

4. Have you been fair? This is the most important reason. Lawyers spend months, and sometimes years, preparing their case for trial. A trial lasts days, sometimes weeks. During that trial, the jury will hear from countless witnesses and see myriad documents. Every piece has been carefully laid out by the attorneys to make the most persuasive presentation possible. Jury instructions will be carefully drafted to ensure that the jury is given the correct law to apply to the case in reaching its decision, And, that jury will listen to bits and pieces and retain even less. At the end of day, no matter what the jurors are told, I believe that in most cases, the decision will come down to one fundamental question – was the employee treated fairly? If that juror, or his or her wife, child, or parent, was treated as the plaintiff was treated, would that juror believe he or she had gotten a fair shake, or was mistreated? At the end of the day, how you answer this question will most likely signal how you decision will be judged.

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

WIRTW #84

Last week I posted a clip from one of my favorite movies, Office Space. This week, Dan Schwartz at the Connecticut Employment Law Blog teaches that had Milton engaged in protected activity before Lumbergh moved his desk downstairs to storage B, he could have filed a retaliation claim instead of taking out his anger by burning down Initech. (If you don’t know what I’m talking about, run, don’t walk, and rent Office Space now).

Jay Shepherd, of Gruntled Employees, thinks its pretty lousy to let employees know about layoffs via voicemail.

Two opposing views on arbitration under the Employee Free Choice Act: the Chamber Post, on why it’s wrong to arbitrate first contracts, and Today’s Workplace, on why it’s wrong to favor arbitration of workplace claims but not arbitration of collective bargaining agreements.

The Email Fail Blog points out why you might want to think twice before you send that racist email from a work computer.

The Word on Employment Law with John Phillips discusses some common legal traps that await employers that furlough employees. Do you want more information on these traps for the unwary? Take a look at Do you know? Mandatory unpaid time off may affect salaried employees’ exemptions.

Eric Welter at the Laconic Law Blog has information on how the ADA treats alcoholism.

Richard Bales at the Workplace Prof Blog reports that the EEOC voted to issue regulations implementing the ADA Amendments Act.

Dennis Westlind at World of Work reports that President Obama will extend job benefits to the same-sex partners of federal employees.

Michael W. Casey, III, of the Florida Employment & Immigration Blog, provides his top 10 considerations for implementing a layoff.

Rod Satterwhite, at Suits in the Workplace, on voice recognition technology as a reasonable accommodation under the ADA.

The Labor & Employment Law Blog reports on a $1.6 million fee award awarded to two employees who successfully defended a trade secret theft case brought by their former employer.

Electronic Discovery Law digests a recent case in which an employee was punished for destroying a laptop after his termination.

Employment Law Bits, on female workplace bullying.

Finally, a couple of posts on corporate wellness programs: Where Great Workplaces Start shares some ideas on how to implement a wellness program. The Iowa Employment Law Blog reminds employers not to discriminate when administering such a program. 

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

No buts about it: Supreme Court rejects mixed motives for age discrimination cases

Employees have three traditional methods to prove intentional discrimination: (1) direct evidence (comments that evidence a discriminatory animus made by a decision-maker in close temporal proximity to the challenged employment decision); (2) indirect evidence (which uses the McDonnell Douglas burden-shifting formula); and (3) a mixed-motive (discrimination was a motivating or a substantial factor in the employer’s action, and the employer cannot show that it would have taken the same action regardless of that impermissible consideration).

This morning, in Gross v. FBL Financial Services, Inc. [PDF], the Supreme Court held that there is no such thing as a mixed-motive in age discrimination cases under the ADEA. To succeed on an disparate treatment claim under the ADEA, a plaintiff must now prove that age was the “but-for” (that is, the only) cause of the challenged adverse employment action:

We hold that a plaintiff bringing a disparate-treatment claim pursuant to the ADEA must prove, by a preponderance of the evidence, that age was the “but-for” cause of the challenged adverse employment action. The burden of persuasion does not shift to the employer to show that it would have taken the action regardless of age, even when a plaintiff has produced some evidence that age was one motivating factor in that decision.

Because age discrimination plaintiffs must now prove “but for” causation, it is more important than ever for employers to meticulously document employees’ performance problems and other disciplinary action. A well-documented personnel file will make it that much more difficult for a plaintiff to prove that age was the sole reason motivating the termination or other action.

Proposed law would grant working moms breastfeeding rights

Last year, I wrote that even though Ohio has one of the country’s most liberal breastfeeding laws, it likely does not protect a mom’s workplace lactation rights. Moreover, few courts have protected breastfeeding and expressing breast milk under current workplace sex discrimination laws.

A potential new federal law could change all that. Identical bills have been introduced in the House and Senate that would require employers to accommodate working moms’ breastfeeding needs at work. The Breastfeeding Promotion Act [PDF] would make three significant changes to existing laws:

• Amend Title VII to include lactation (breastfeeding or the expression of milk) in the definition of sex discrimination.

• Amend the Fair Labor Standards Act to require that employers provide “reasonable break time for an employee to express breast milk for her nursing child for one year after the child’s birth”, and make “reasonable efforts to provide a place, other than a bathroom, that is shielded from view and free from intrusion” for an employee to express breast milk.

• Amend the Internal Revenue Code to provide a tax credit for employers that provide an appropriate workplace environment for employed moms to breastfeed or express milk.

It’s difficult to say how much traction the BPA has, but this bill is definitely one that warrants watching.

[Hat tip: World of Work]

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

Do you know? “Salting” the wounds of labor organizing

“Salting” is a common organizing tactic used by labor unions. It refers to union organizers applying for jobs with non-union employers. The organizers then attempt to organize the employer’s workforce from the inside. In addition to organizing, the salts also try to inflict economic harm on the targeted employer by triggering unfair labor practice charges and resulting back pay liability. Salting is one the more underhanded methods of organizing used by labor unions.

In Toering Electric Co. [PDF], the Bush-era NLRB attempting to limit the ability of unions to salt non-union workplaces. It ruled that an applicant for employment must be genuinely interested in seeking to establish an employment relationship with the employer in order to qualify as an "employee" under the meaning of the National Labor Relations Act, and thus be protected against hiring discrimination based on union affiliation or activity.

Although they face an uphill battle, Congressional Republican are attempting to put another nail in salting coffin. The Truth in Employment Act of 2009 would amend the National Labor Relations Act so that an employer would not be under any obligation to “employ any person who seeks or has sought employment with the employer in furtherance of other employment or agency status.” The Congressional findings contained in the bill make it clear that this intent of this measure is to end salting once and for all:

The tactic of using professional union organizers and agents to infiltrate a targeted employer’s workplace, a practice commonly referred to as ‘salting’, has evolved into an aggressive form of harassment not contemplated when the National Labor Relations Act was enacted and threatens the balance of rights which is fundamental to the system of collective bargaining of the United States. Increasingly, union organizers are seeking employment with nonunion employers not because of a desire to work for such employers but primarily to organize the employees of such employers or to inflict economic harm specifically designed to put nonunion competitors out of business, or to do both. While no employer may discriminate against employees based upon the views of employees concerning collective bargaining, an employer should have the right to expect job applicants to be primarily interested in utilizing the skills of the applicants to further the goals of the business of the employer.

Given the party affiliation of both houses of Congress and the White House, the Truth in Employment Act will likely go nowhere. It’s introduction, though, is a good reminder to non-union employers that salting remains a legitimate threat, especially in today’s pro-union environment.

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

Examining our prejudices

As my wife and I were loading our kids into the car for a trip to Lowe’s last Thursday night, we noticed someone we didn’t recognize talking to our neighbors across the street. As we were getting into our car, the man crossed the street and approached us. He was in his early twenties and casually, but neatly, dressed. He was carrying a packet of papers in his hand, and began rambling about running track, a trip to England, and selling magazine subscriptions. He handed me his packet of papers to look at, which ended up being a bunch of handwritten notes of magazine titles. When I told him that we already bought subscriptions from our nieces and nephews, he changed his story to something about soliciting used books for his mom. Needless to say, my spidey sense started tingling. I quickly finished gathering my family into the car, excused ourselves, and drove off. I also called the police. Apparently, I wasn’t the only person skeeved out by this guy, because the police already had a description and two squad cars on the way.

I’ve neglected one fact from this story. The particular person who made me nervous enough to call the police happened to be African American. Given his weird behavior, shifting purposes for going door-to-door, and lack of legitimate handouts, I’d like to think I would have reacted the same way no matter his race, especially in light of our neighborhood’s diversity. But, I am left wondering if his race added to my level of discomfort.

Most people do not set out to discriminate. In my career, I’ve come across very few employers that made a conscious decision to fire someone because of their race. Yet, no matter how enlightened and progressive we like to think that we are, we all harbor life experiences and prejudices that shape our behavior. Those prejudices don’t make us bigoted or racist; they just make us human.

Businesses get themselves in trouble when they believe they aren’t capable of discrimination. The key to avoiding potential liability is to recognize that we are all capable of discriminating. That recognition allows us to examine the prejudices that could lead to disparate treatment and hopefully avoid it. Something to think about the next time you hire or fire someone.

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

WIRTW #83

Every now and then a story slips through the cracks. Such is the case with Lima v. State, decided this week by the Ohio Supreme Court, in which the Court ruled that cities cannot enforce residency requirements as a condition of employment. The Cleveland Law Library Weblog has more information.

If the following headline doesn’t make you throw-up your breakfast, nothing will: Former Employee Wins $4.1 Billion. That is not a typo. The award really was $4.1 Billion. World of Work has the gory details of what can go wrong when you terminate a really high earner.

Two states have enacted legislation permitting parents unpaid leave to attend their children’s school activities. Colorado (via the Colorado Employment Law Blog) and Nevada (via the Workplace Prof Blog).

Meanwhile, Compensation Cafe offers a good list of potential new federal employment laws on the horizon.

Dan Schwartz at the Connecticut Employment Law Blog reminds employers that discrimination cases often hinge on whether the employer is consistent in its explanations.

Molly DiBianca at the Delaware Employment Law Blog digests recent polling data on office romances.

Michael Moore at the Pennsylvania Labor & Employment Blog discusses the important issue of who is a “management-level employee” for purposes of imputing harassment liability to an employer.

Christopher McKinney at the HR Lawyer’s Blog reports on chronic fatigue syndrome as an ADA-protected disability.

George’s Employment Blawg offers up a plaintiff-side opinion on male sexual stereotyping at work.

Discriminations talks about the disparate impact theory of, well, discrimination.

Finally, The Word on Employment Law with John Phillips draws some employment law lessons from Sesame Street.

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

Big verdict underscores importance of background checks

One would think that businesses with whom people entrust children or the elderly would conduct routine criminal background checks of its employees. In fact, in Ohio, it’s the law. At least one employer, however, an assisted living facility in Newport News, Virginia, unknowingly hired an employee with a long criminal history, including assault and battery. On May 28, a jury found the facility liable for failing to exercise reasonable care in hiring the former felon. The lawsuit involved the employee’s sexual assault of a resident. The ex-employee has been criminally charged with five forcible sodomy counts, three carnal knowledge counts, and one abuse and neglect count. For these acts, the jury awarded the abused resident $750,000 in damages.

There is a good lesson for all employers to learn from this example. Backgrounds checks are inexpensive. The potential exposure from hiring an employee with a criminal history, however, is large. Do your bottom line and the safety of your employees a favor and consider implementing routine criminal background checks for all employees. For information on how to use this information without running afoul of EEO laws, I recommend EEOC targets use of arrest and conviction records.

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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.