Do you know? FMLA fitness-for-duty certifications

In a previous post, I detailed the new FMLA regulation’s eligibility notice and designation notice requirements. The FMLA also has specific requirements for how an employer must go about obtaining a fitness-for-duty certification from an employee on an FMLA leave for his or her own serious health condition.

1. Mandatory written notice. Before an employer can require an employee to provide a fitness-for-duty certification, it must expressly be provided for in a written FMLA policy or in the designation statement given to the employee at the outset of the leave. Additionally, if the employer wants the certification to address the essential functions of the employee’s job, a list of such functions must be provided to the employee with the designation notice.

2. Uniformity. The employer must have a uniformly-applied policy or practice that requires all similarly-situated employees (i.e., same occupation, job function, or serious health condition) who take leave for such conditions to obtain and present the certification.

3. Limited to the specific health condition. An employer may only seek a fitness-for-duty certification with regard to the particular health condition that caused the employee’s need for FMLA leave.

4. Cost. The employee must pay for the cost of the certification, and the employee is not entitled to be paid for the time or travel costs spent acquiring the certification.

5. Clarification. While an employer can seek clarification of a fitness-for-duty certification with an employee’s health care provider under the same rules applicable to other communications with an employee’s health care provider, the employer cannot delay the employee’s return to work pending the clarification. Unlike the initial leave certification, an employer cannot seek a second or third opinion of a fitness-for-duty.

6. Denial of job restoration. An employer can deny restoration, however, if a properly requested fitness-for-duty certification is not returned by the employee.

7. Intermittent or reduced work schedule leave. An employer is not entitled to a certification for each absence taken on an intermittent or reduced leave schedule. An employer is entitled, though, to a certification for such absences up to once every 30 days if reasonable safety concerns exist regarding the employee’s ability to perform his or her duties, based on the serious health condition for which the employee took such leave. An employer may not terminate the employment of an employee while awaiting such a certification for an intermittent or reduced schedule leave absence.

8. Interplay with the ADA. After an employee returns from FMLA leave, the ADA requires any medical examination at an employer’s expense by the employer’s health care provider be job-related and consistent with business necessity. If an employee’s serious health condition may also qualify as a disability under the ADA, the FMLA does not prevent the employer from following the procedures for requesting medical information under the ADA.

---

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.

Bullying versus harassment

It is generally agreed that the anti-discrimination laws do not create a general code of workplace civility. Employees are generally expected to endure the usual tribulations of the workplace, such as the sporadic use of abusive language, offhand comments or jokes, occasional or simple teasing, normally petty slights, minor annoyances, and the simple lack of good manners. Harassing conduct is only actionable if it is objectively and subjectively severe or pervasive so as to alter the terms and conditions of one’s employment.

In light of this standard, consider the following set of facts, which arose in Hidy Motors, Inc. v. Sheaffer (Ohio Ct. App. 7/31/90), an age harassment claim brought by a 67-year-old car salesman:

• When the general manager would walk behind Sheaffer he would repeatedly say, “Come on old man, pick up your feet.”
• After Sheaffer told the general manager that a couple wanted to go home and think about buying a car, the general manager told him, “Come on old man, get your f****** head out of your f****** ass and go out there and slam them.”
• Referring to Sheaffer, the general manager directed another sales person to help the “old man” close a deal.
• In discussing a disagreement over a sales bonus, the general manager told Sheaffer, “Old man, I don’t give a f*** what you think. That’s the way it is going to be.”
• After a child spilled some water on the floor, the general manager told Sheaffer, “I’ve heard that’s what happens when you get your age - you can’t control yourself.”

Based on this conduct, the appellate court reversed the trial court’s summary dismissal of the age harassment claim and sent Sheaffer’s claim back for trial.

There is no doubt that this particular general manager has an interesting management style, and is probably what one would call a bully. But, should a few instances of a 67-year-old employee being called “old man” support a harassment claim? There is a clear line between general bullying/boorish management and actionable harassment. I question whether this case falls on the right side of that line.

---

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 #90

BLR’s HR Daily Advisor offers 10 tips to avoid employment lawsuit, in two parts – part one and part two.

Meanwhile, Jennifer Hays at the Warren & Hays Blog sums up lawsuit avoidance in one simple step – fire with a heart.

And, if you are sued, Michael Maslanka’s Work Matters suggests

Darcy Dees at Compensation Cafe reminds everyone that being wrong in a wage and hour lawsuit can have costly consequences for an employer if willfulness can be proven.

Michael Fox’s Jottings By An Employer’s Lawyer draws a connection between a good performance review, a termination, and a million dollar jury verdict in a discrimination lawsuit.

The Evil HR Lady offers some advice to a pregnant employee who is not eligible for FMLA leave.

Molly DiBianca at the Delaware Employment Law Blog digests a bunch of resources for employers seeking to promote a work-life balance.

Today’s Workplace asks if there is a link between the recession and increased workplace harassment.

The Overtime Advisor shares its thoughts on wage and hour issues and smartphone usage.

Want to know what’s wrong with American class action litigation – the Point of Law Forum reports on a $25,037,500 class settlement in which the plaintiff’s lawyers will receive $25,000,000, and the class members will receive $37,500 in discounts towards the purchase of future automobiles.

Patrick Smith at the Iowa Employment Blog provides a good summary of recent headlines in religious discrimination.

Marcia McCormick at the Workplace Prof Blog discusses the introduction of the Employment Non-Discrimination Act in the Senate. The bill would ban discrimination on the basis of sexual orientation and gender identity.

On Point reports that a Philadelphia hair salon is being sued by a male hair stylist who claims he was told it was “socially unacceptable” for him to “look like a girl.”

Carl Bosland at The FMLA Blog reports on legislation that could expand military leave benefits.

According to Workplace Privacy Counsel and the Philadelphia Bar Association, it is unethical for an attorney to use a third party to gain access to witnesses Facebook or other social networking page.

---

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.

Know when to fish, know when to cut bait

Justin Barrett, the Boston police officer who was fired for calling Harvard professor Henry Louis Gates Jr. a “banana-eating jungle monkey,” has filed a lawsuit against the Boston police department, police commissioner, and mayor. Defending himself on Larry King Live last week, Barrett said that he is not a racist:

I would like to take this opportunity to offer fellow police officers, soldiers and citizens my sincerest apology over the controversial e-mail I authored. I am not a racist. I did not intend any racial bigotry, harm or prejudice in my words. I sincerely apologize that these words have been received as such. I truly apologize to all.

Let me put this as simply as possible – when you send an e-mail calling an African American a “jungle monkey” not once, not twice, but four different times, whether you are or are not a racist is irrelevant. All that matters is that everyone is going to perceive you as a racist.

In employment cases, perception is 90% of the battle. For example, let’s suppose the “jungle monkey” to whom Mr. Barrett referred was not Professor Gates, but was a subordinate Mr. Barrett had recently terminated. It’s possible he could convince a jury that racial animus did not motivate his decision, although highly unlikely. If your explanation as to why an employee was fired cannot pass the smell test, the case is one that should be quickly settled instead of expensively litigated.

[Hat tip: Overlawyered]

---

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 importance of handbook disclaimers

Employee handbooks come in all shapes and sizes. For example, some employers have different policies that cover exempt versus non-exempt employees. Some employers have policies that create a probationary period for employees during the initial few months of employment. Some employers have progressive discipline policies. And some even grant formal appeal rights to employees who are disciplined or terminated.

In Fennessey v. Mount Carmel Health System (Franklin Cty. Ct. App. 7/30/2009) [PDF], a terminated nurse claimed that each of these policies set forth in Mount Carmel’s employee handbook either created an implied contract of employment, or consisted of a definitive promise on which she reasonably relied thereby binding her employer.

Thankfully for Mount Carmel, its handbook contained two items that no employee handbook should be without – an at-will employment disclaimer, and a signed acknowledgement by the employee affirming her at-will status. The disclaimer stated:

110.1 Employment At Will 

An employee of Mount Carmel Health System is an employee at will. The employee or Mount Carmel Health System can terminate the employment relationship at any time for any reason. No statement in this manual will be interpreted or applied as a contract of employment.

The signed acknowledgement stated:

I recognize Mount Carmel Health System has the right to change provisions in this manual and other policies…. I understand that no representative of Mount Carmel Health System has the authority to make an agreement contrary to the provisions of this manual. 

I recognize this manual does not constitute a contract of employment. I understand that, at any time, for any reason, I can separate my employment relationship and that Mount Carmel Health System has the same right regarding my employment status.

Based on these two statements, the appellate court affirmed the trial court’s dismissal of Fennessey’s promissory estoppel and breach of implied contract claims.

This case not only illustrates the vital importance of disclaimers and acknowledgements in handbooks, but also the need that certain critical language appear in all handbooks

1. A specific statement that employment is at-will, without exception.
2. An explanation, in plain English, of what at-will employment means.
3. A statement that no one can create a contract contradictory to the provisions of the handbook.
4. A statement that that handbook is merely a unilateral statement of rules and policies which creates no rights or obligations.
5. A statement that the handbook is not a contract and not intended to create an express or implied contract.
6. A statement that the employer has the unilateral right to amend, revise, or eliminate policies and procedures as needed.
7. A statement that employees should not rely on any statement in the handbook as binding on the company.

Do you know? Mandatory overtime

We should all know that any hours a non-exempt employee works in excess of 40 in any given week must be paid at a premium rate of one and one-half times the regular rate of pay. But, do you know whether there are any laws that inhibit an Ohio employer’s right to require that employees work more than 40 hours in a week?

The answer is no. An Ohio employer can legally require that its employees work overtime. There are no federal or Ohio laws that prohibit or otherwise limit the right of an employer to require its employees to work as many hours as an employer sees fit. Thus, an employer can require its employees to work more than eight hours in day and more than 40 hours in a week, without restriction. As extreme as it may seem, an employer can require an employee to work 24 straight hours, or work 80 or more hours in a week. Moreover, if an employee refuses to work overtime, an employer can discipline that employee, up to and including termination.

The only restriction placed on overtime work is that it must be paid at the statutory premium rate. Now, retaining employees that you require to work 20 hours a day or 80 hours week after week is another question entirely…

DOL publishes FAQ on furloughs and other reductions in pay and hours worked issues

While the economy is beginning to show signs of slowing turning around, businesses are still turning to employee furloughs and other alternative work schedules as a means to save costs and jobs. I’ve previously written on some of the wage and hour issues employers need to mind in implementing a furlough program. See Risks abound for businesses considering unpaid time off to save costs. The Department of Labor has now stepped into the fray and has published Frequently Asked Questions Regarding Furloughs and Other Reductions in Pay and Hours Worked Issues [PDF]. According to the DOL, its guide is “intended to answer some of the most frequently asked questions that have arisen when private and public employers require employees to take furloughs and to take other reductions in pay and / or hours worked as businesses and State and local governments adjust to economic challenges.”

If you are still considering implementing a furlough program or other alternate work schedule, this FAQ is a good starting point to helping you navigate the maze of wage and hour laws that impact your decision. Because of the complexity of these issue, I still recommend consulting with employment counsel before final implementation.

---

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 #89

This week’s highlighted post is courtesy of Dennis Westlind at World of Work. Dennis brings us a link to an online game, Card Checked: The Game. Card Checked takes you to a post-EFCA world in which union organizers try to intimidate you into signing an authorization card. Threats are made, windows are smashed, laws are broken, and in the end … well, play the game and find out whether your tattoo parlor ends up unionized.

Workplace Horizons reports that Labor Secretary Hilda Solis intends to enforce “wage and hour laws more aggressively to ‘send a message’ to employers that they must comply with federal minimum wage, overtime, and other requirements.” Yet another reason to conduct that internal audit.

The Word on Employment Law with John Phillips shares his thoughts on reverse age discrimination.

Arkansas Employment Law compiles some links from around the web discussing how to handle workplace harassment.

Sindy Warren at the Warren & Hays Blog digests a recent 4th Circuit decision that discusses the different of remedial measures versus effective remedial measures in a sexual harassment case.

Dan Schwartz at the Connecticut Employment Law Blog offers some information on what employers should be doing about texting while driving.

Jonathan Turley's res ipsa loquitur blog, courtesy of Rush Nigut’s Rush on Business, details the story of an employee terminated because of his wife’s work as an adult film star.

Michael Haberman’s HR Observations talks about the treatment of employee bonuses for overtime purposes.

Mindy Chapman’s Case in Point discusses under what circumstances an employer has to accommodate the needs of a diabetic employee.

Jason Shinn’s Defending the Digital Workplace discusses a case in which a group of terminated employees were awarded punitive damages based on their employer’s surreptitious access of their MySpace pages.

The Washington Employment Law Blawg presents the top 10 most common employee handbook mistakes. When reviewing your handbook, add this list to my earlier list of 8 common employee handbook mistakes, and how to avoid them.

The EBG Trade Secrets & Noncompete Blog asks a very good question – where is the line between competing and preparing to compete? If an employee is merely engaged in the latter, he or she likely is not violating a noncompete agreement.

Finally, I Hate People...But It’s Nothing Personal, on the art of saying “No.”

---

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 short rant, and a lesson on employee appreciation

I’m always happy to answer an email or a phone call from a reader. Yesterday, I received an email from someone asking me a question about something I wrote in a publication called What’s Working in Human Resources. The problem is, I never wrote anything for What’s Working in Human Resources. I googled the publication, and discovered two things: its published by Progressive Business Publications out of Malvern, PA, and its publications are not available online. The emailer graciously forwarded me a copy of the article. What I discovered frankly shocked me. What’s Working in Human Resources had “borrowed” content from a post I wrote earlier this year, and made it look like I had given an interview.

Now, I’m all for free publicity, and I am happy to talk to any reporter who is looking for a quote on an employment law issue. All you have to do is ask. Just this year I’ve been quoted in the Wall Street Journal, Business Insurance Magazine, and the National Law Journal, to name a few. What bothers me is that my content was borrowed without my permission, and passed off as if I had spoken to this publication.

In response to my email asking that Progressive Business Publications cease using my content without my permission, I received the following:

We’ll be happy to comply with your wishes.

I’d like to point out, however, that we classified you as an expert and provided contact information where our readers might avail themselves of your wisdom. We find most employment lawyers think that’s a good thing.

Apparently, being called an “expert” is supposed to compensate me for the copyright violation.

From this tale, which consumed way too much of my time and energy yesterday, what lesson can employers learn? Give credit where credit is due. One of the easiest ways to make an employee feel undervalued and put that person at risk of leaving an organization is for management to take that employee’s ideas and hard work and pass it off as its own. Proper attribution and credit is easy to give, and usually goes a long way to making employees feel appreciated.

---

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.

Nashville jury rejects associational harassment claim

If a white employee stands up for her black co-workers, and is then ostracized and called racially-charged names because of it, is she entitled to compensation for the alleged harassment? According to one Nashville jury, the answer is no.

In Barrett v. Whirlpool Corp. (6th Cir. 2/23/09), the 6th Circuit determined that an employee cannot pursue a claim for retaliation based solely upon a relationship to a co-worker who engages in protected activity. The court also remanded for trial the racial harassment claim of one of the plaintiffs, Treva Nickens. She claimed that after she spoke out in favor of black co-workers who had filed a race discrimination suit against Whirlpool, she faced routine racist slurs and graffiti (such as being called a “nigger lover”), was told that she should stay with her own kind, was disciplined more harshly than whites, and was passed over for a promotion. According to The Tennessean, the jury rejected Nickens’ associational harassment claim.

Despite the jury’s verdict on the specific facts presented by Nickens, the law remains that harassment as a result of one’s association with or advocacy for protected employees is just as unlawful as harassment directed at a member of a protected class.

Even though Whirlpool escaped liability in this case, employers should not read this verdict as a license to permit harassment against employees associated with employees in a protected class. Employers must treat all allegations and complaints of harassment seriously. Investigations should be timely and thoroughly completed. Policies should be reviewed and reinforced. Appropriate corrective action should in instituted where warranted.

---

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? Employers can communicate directly with employees’ health care providers for FMLA certifications

The recent changes to the FMLA’s regulations make it that much easier for employers to gather information about the medical need for an employee’s FMLA leave of absence. If an employee’s FMLA medical certification is incomplete (required information is omitted) or insufficient (the information provided is vague, ambiguous, or non-responsive), an employer is now entitled to request additional information directly from the employee’s health care provider.

This ability, however, has certain key limitations:

1. Before an employer can directly contact the health care provider, it must first advise the employee, in writing, of the deficiency in the certification and provide at least seven days for the employee to cure.

2. Thereafter, an employer can directly contact an employee’s health care provider solely for purposes of clarification (to understand the handwriting on the medical certification or the meaning of a response) or authentication (verification that the health care provider completed or authorized the completion of the certification form).

3. Contact, however, is limited to an employer’s own health care provider, a human resources professional, a leave administrator, or a management official.

4. Under no circumstances may the employee’s direct supervisor contact the employee’s health care provider.

5. Employers may not ask health care providers for additional information beyond that required by the FMLA certification form (including diagnostic information).

6. While an employee must give his or her written authorization before the employer can make contact with the health care provider, the employee’s failure to consent entitles the employer to deny the FMLA request.

7. The standard rules of confidentiality of employee medical information still apply.

---

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.

Federal minimum wage increases, but does it matter to Ohio’s employers?

On July 24, the federal minimum wage rate increased to $7.25 per hour. However, as of January 1, 2009, Ohio’s minimum wage raised to $7.30 per hour. Thus, the new federal minimum wage has no effect except on the smallest of Ohio’s employers. Those businesses that gross less than $267,000 annually must comply with the $7.25 per hour rate. Ohio’s minimum wage will increase again on January 1, 2010 (and again on each January 1 thereafter) by the average rate of inflation for the prior September to September 12-month period.

Ohio is one of 14 states (including the District of Columbia) with a minimum wage higher than the federal mandate. Feel free to debate the effect of higher wage rates on business growth and development in the comments. The bottom line for most Ohio businesses is that the higher federal minimum wage simply does not matter.

---

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 #88

A few weeks ago I cautioned about the dangers that lurk in positive recommendations on LinkedIn. Two of my blogging brethren disagree. Read the opposing viewpoints of Dan Schwartz at the Connecticut Employment Law Blog and Molly DiBianca at the Delaware Employment Law Blog.

I’ve often preached on the importance of treating employees fairly. Becky Regan at Compensation Cafe agrees.

I’ve previously reported that employers might be at risk for unpaid wages for non-exempt employees who check work-related email off-the-clock (Overtime pay for reading emails and Can't get away from the office). It seems that plaintiffs’ lawyers are starting to take notice of this issue. According to Kim Licata at Fair Labor Standards Act Law, “T-Mobile USA has been sued in the Eastern District of New York by its retail sales associates and supervisors who allege that they were not compensated for "off-the-clock" activities linked to Blackberrys and other hand-held device.”

The recent changes to the proposed Employee Free Choice Act continue to garner a lot of attention. For more thoughts on this issue I suggest Michael Fox’s Jottings By An Employer’s Lawyer and the EFCA Report.

Jennifer Hays at the Warren & Hays Blog offers some practical information on what to do and what not to do during a union organizing campaign.

James Gelfand at the Chamber Post breaks down the impact the pending health care legislation will have on employers.

World of Work shares 7 ways employers can save on litigation costs.

This week has a couple of good posts on employees’ use of vacation time: Philip Miles’s Lawffice Space shares his thoughts on mandatory vacation days, while Kari Henley at Today’s Workplace thinks we all work too hard and praises the introduction of the Paid Vacation Act of 2009, which would amend the Fair Labor Standards Act to require that employers provide all employees with 1 week of paid leave per year.

Kris Dunn, The HR Capitalist, has some suggestions on what to do when an employee has a positive drug test.

Workplace Privacy Counsel suggests that laws against online harassment may aid employers battling disgruntled ex-employees.

Wage and Hour Counsel shows how reliance on a Department of Labor opinion letter can save your bacon in a wage and hour lawsuit.

Strategic HR Lawyer has some advice for employees on what not to post on Twitter.

Finally, Dan Schwartz at the Connecticut Employment Law Blog uses a personal anecdote to illustrate the importance of communicating with the complainant in a workplace investigation.

---

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.

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

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

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

In light of the DOL’s planned stepped-up enforcement, employers must be extra vigilant in uncovering wage and hour violation in their own workplaces. A wage and hour audit feels like an unpleasant medical exam. The investigator is not necessarily limited to the alleged violation, and will turn your workplace upside-down, pouring through years of records and privately interviewing your employees. And, once you are on their radar, it is hard to get off. In other words, they’ll be back to make sure you are staying on the path of all that is right and just. For employers, the best advice I can give is to get out ahead of this issue. Take a hard look at all of your current wage and hour issues: employee classifications, meal and rest breaks, off-the-clock issues, and child any workers. Make sure you are 100% compliant with all state and federal wage and hour laws. If you are not sure, bring in an attorney to check for you. If you are ever investigated by the DOL or sued in a wage and hour case, it will be the best money your business has ever spent.

---

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 “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).

---

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.

---

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.

---

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.

---

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 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. 

---

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.

---

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

---

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.

---

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.

---

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?

---

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.

---

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.

---

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.

---

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!

---

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.

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?

---

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.