Do you know? What is a “disability” under the recent ADA Amendments Act

The ADA Amendments Act, which became effective January 1, 2009, is intended “to reinstate a broad scope of protection” by expanding the definition of the term “disability.” Recently, the EEOC published its proposed regulation interpreting these amended provisions. The regulations will be published this week, and the EEOC has already published a helpful Q&A discussing the proposed ADAAA regulations.

The core three-part definition of “disability” largely remains unaltered. An ADA-protected disability is still defined as:

1. a physical or mental impairment that substantially limits a major life activity; or
2. a record of a physical or mental impairment that substantially limited a major life activity; or
3. when an employer takes an action prohibited by the ADA based on an actual or perceived impairment.

What has changed under the ADAAA is how these definitions are interpreted and applied. Indeed, according to the EEOC, “As a result of the ADAAA, it will be much easier for individuals seeking the law’s protection to demonstrate that they meet the definition of ‘disability….’”

Major Life Activities

“Major life activities” fall under one of two categories. An employee only needs one major life activity from either of the following:

• Category One includes examples such as caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, and working at a type of work.
• Category Two covers the operation of major bodily functions, including functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, circulatory, respiratory, endocrine, hemic, lymphatic, musculoskeletal, special sense organs and skin, genitourinary, cardiovascular and reproductive functions.

Substantially Limiting

To have a disability (or to have a record of a disability) an individual must be substantially limited in performing a major life activity as compared to most people in the general population. An impairment need not prevent, or significantly or severely restrict, the individual in performing a major life activity to be considered “substantially limiting.” Determination of whether an individual is experiencing a substantial limitation in performing a major life activity is a common-sense assessment based on comparing an individual’s ability to perform a specific major life activity with that of most people in the general population.

Mitigating Measures

The positive effects from an individual’s use of one or more mitigating measures be ignored in determining if an impairment substantially limits a major life activity. In other words, an employer must ignore the fact that a mitigating measure removes or reduces an impairment in determining whether an employee is disabled. Mitigating measures include medication, medical equipment and devices, prosthetic limbs, low vision devices (devices that magnify a visual image), reasonable accommodations, and even behavioral modifications. Ordinary eyeglasses or contact lenses do not count as mitigating measures.

Exemplar Impairments

• The following are examples of impairments that consistently meet the definition of “disability”: deafness, blindness, intellectual disability (formerly known as mental retardation), partially or completely missing limbs, mobility impairments requiring use of a wheelchair (a mitigating measure), autism, cancer, cerebral palsy, diabetes, epilepsy, HIV/AIDS, multiple sclerosis, muscular dystrophy, major depression, bipolar disorder, post-traumatic stress disorder, obsessive-compulsive disorder, and schizophrenia.

• The following are examples of impairments that may be substantially limiting for some individuals but not for others: asthma, back and leg impairments, and learning disabilities.

• An impairment that is episodic or in remission meets the definition of disability if it would substantially limit a major life activity when active. Examples of such impairments include: epilepsy, hypertension, multiple sclerosis, asthma, diabetes, major depression, bipolar disorder, and schizophrenia.

• The following are examples of impairments that usually are not considered “disabilities”: the common cold, seasonal or common influenza, a sprained joint, minor and non-chronic gastrointestinal disorders, a broken bone that is expected to heal completely, appendicitis and seasonal allergies.

“Regarded as” Disabled

Under the ADAAA, an employer “regards” an individual as having a disability if it takes a prohibited action based on an individual’s impairment or on an impairment the employer believes the individual has, unless the impairment is transitory (lasting or expected to last for six months or less) and minor. No longer does one have to show that the employer believed the impairment (or perceived impairment) substantially limited performance of a major life activity. Employers have no obligation to provide reasonable accommodation to an individual who only meets the “regarded as” definition of disability.

The regulations are not final, and are subject to change after the public has had a 60-day opportunity to comment and make suggestions. I will report further on these regulations after they become final.

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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.

Religious accommodation versus public image

According to an EEOC press release, the agency has filed suit against Ohio-based retailer Abercrombie & Fitch for alleged discrimination “against a 17-year-old Muslim by refusing to hire her because she wore a hijab, or head scarf, in observance of her sincerely held religious beliefs.” According to the lawsuit, pending in Tulsa, Okla., an Abercrombie Kids store refused to hire Samantha Elauf for a sales position because she was wearing a head covering during her interview, which violated the company’s “Look Policy.” The lawsuit also claims that the store failed to accommodate her religious beliefs by making an exception to the Look Policy

According to the EEOC Compliance Manual on Religions Discrimination, “An employer’s reliance on the broad rubric of ‘image’ to deny a requested religious accommodation may in a given case be tantamount to reliance on customer religious bias (so-called ‘customer preference’) in violation of Title VII.”

Title VII requires an employer, once on notice, to reasonably accommodate an employee whose sincerely held religious belief, practice, or observance conflicts with a work requirement, unless providing the accommodation would create an undue hardship. Undue hardship is a low standard – the proposed accommodation need only pose more than a de minimis cost or burden. At least one court, the 1st Circuit in Cloutier v. Costco Wholesale Corp. [PDF], has held that granting an exemption to a dress and grooming policy poses an undue hardship.

Anyone who has ever walked through a shopping mall knows that Abercrombie & Fitch portrays a certain image. Unless the EEOC can prove that the company promotes that image and maintains its “Look Policy” to exclude Muslim customers (or because of a preference for non-Muslim customers), it will have an uphill battle in proving that Abercrombie discriminated against this one job applicant by applying a facially neutral policy against her.

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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 #96

Yesterday, I wrote about Ohio’s proposed law that would ban discrimination based on gender identity. Earlier this week, Dan Schwartz at the Connecticut Employment Law Blog weighed in on this issue in light of South African runner Caster Semenya, who competes as a woman but might genetically be a man.

In other pop culture news, Molly DiBianca at the Delaware Employment Law Blog gives her thoughts on workplace civility in light of recent outbursts by South Carolina GOP Rep. Joe Wilsonest, Serena Williams, and Kanye West.

Debra Reilly’s Workplace Investigations discusses employers’ bans on hiring employees with criminal histories. I’ve also touched on this topic before.

In other news about hiring decisions, Sindy Warren at the Warren & Hays Blog suggests that employers sparingly make word-of-mouth hiring decisions.

Both Philip Miles’s Lawffice Space and Walter Olson’s Overlawyered report on an Indiana court that has ruled that a pizza shop must pay for a 340-pound employee’s weight-loss surgery as a precursor to another operation for a workplace back injury.

LaborPains.org thinks unions efforts at a renaissance are futile. Meanwhile, the EFCA Report thinks that Senate Democrats are fractured on whether the controversial bill will pass this year.

Ann Bares at Compensation Cafe thinks that job titles can have some value to employees.

Ride the Lightning, courtesy of Eric Welter’s Laconic Law Blog, on whether employees have a right to privacy in personal emails sent via web-based email over an employer’s computer system.

Michael Maslanka’s Work Matters reminds us that often we need to start with the basics.

Melanie McClure at Arkansas Employment Law, on policies and exceptions.

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

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

Ohio House passes bill banning sexual orientation discrimination; fight moves to Senate

In yesterday's Columbus Dispatch, Jim Siegel reports that the Ohio House passed a bill that would prohibit employment discrimination based on sexual orientation by a vote of 53-39. If enacted, Ohio would join 20 other states with similar prohibitions. 17 Ohio cities, including Cleveland, already have similar laws.

The legislation would add sexual orientation and gender identity to the list of protected classes against whom employers cannot discriminate. The bill defines sexual orientation as “actual or perceived, heterosexuality, homosexuality, or bisexuality.” It defines gender identity as “gender-related identity, appearance, or mannerisms or other gender-related characteristics of an individual, with or without regard to the individual's designated sex at birth.” Other key provisions include:

• A limitation to employers with 15 or more employees. All other forms of discrimination apply to employers with 4 or more employees.
• A carve out for religious groups.
• Permission for employers to deny access to shared shower or dressing facilities in which being seen unclothed is unavoidable, provided that the employer provides reasonable access to adequate facilities that are not inconsistent with an employee’s gender identity.
• No requirement that employers construct new or additional facilities to accommodate employees’ sexual orientation or gender identity.
• No affirmative action requirements.
• Employers can enforce otherwise legal dress codes and grooming standards, provided that the employer permits employees who have undergone or are undergoing gender transition to adhere to the same dress code or grooming standards as their new gender.

The bill now moves on to the Ohio Senate, where its Republican majority promises a fight. According to Senate President Bill Harris, “I talk to business people all the time, and they’re saying it’s not an issue.” So let me get this straight. It’s acceptable to oppose this bill because businesses are self-reporting that they are not discriminating. Isn’t that akin to asking a plantation owner in 1863 if he wants to abolish slavery?

If we want to be a state that is attractive to progressive businesses, we need to pass progressive legislation. Let’s hope the Senate gets its act together and sends this bill to Governor Strickland for his signature.

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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 “fat” the new protected class?

This week, Michael Haberman, at HR Observations, continues his series on “isms” with a post on what he calls “fatism” (or discrimination against the overweight). I found this post to be timely in light of recent headlines made by the Cleveland Clinic’s CEO that he would not hire obese people if the law allowed him to do so (he has since retracted those criticized comments).

Conventional wisdom says that with the exception of the morbidly obese, obesity is not a characteristic protected by the anti-discrimination laws. Indeed, in 2006, the 6th Circuit said as much in EEOC v. Watkins Motor Lines [PDF], holding that “to constitute an ADA impairment, a person’s obesity, even morbid obesity,
must be the result of a physiological condition.” However, on Jan. 1, 2009, the ADA Amendments Act took effect. The ADAAA broadens what qualifies as a “disability” under the ADA.

It remains up in the air exactly how broadly this definition has been expanded. I do not believe it has been expanded so far as to encompass things such non-physiological obesity. We will have to wait and see, however, on the breadth of the ADAAA until courts and the EEOC start weighing in on exactly how broad the definition of “disability” has become.

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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? Affirmative action and reverse discrimination

Many employers have affirmative action plans. However, just because you have a plan does not mean that the plan should be the only decision-making factor in hiring employees. In fact, sole reliance on an affirmative action plan in hiring could lead to a claim of reverse discrimination. In Humphries v. Pulaski County (8th Cir. 9/3/09) [PDF] examined the case of a white employee turned down for every promotion for which she applied in favor of African Americans. The court held:

[E]vidence that an employer followed an affirmative action plan in taking a challenged adverse employment action may constitute direct evidence of unlawful discrimination. If the employer defends by asserting that it acted pursuant to a valid affirmative action plan, the question then becomes whether the affirmative action plan is valid under Title VII….

To be valid, an affirmative action policy must be narrowly tailored to meet the goal of remedying past discrimination. It cannot, however, be used to maintain racial quotas. In the court’s words, it cannot be used to “unnecessarily trammel the rights of non-minorities.”

If your business has an affirmative action plan, use it as a factor in hiring decisions, but not the only factor.

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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.

Muslims perceived as suffering the worst discrimination

We are a few days past the 8th anniversary of what many consider to be the worst day in the history of our country. According to a recent survey conducted by The Pew Research Center, there is still a perception that Muslims are discriminated against more than any other religious or other group.

2,010 adults were asked the following question: “Just your impression, in the United States today, is there a lot of discrimination against ____ or not?” Here are the results:

	Yes	No
	%	%
Muslims	58	29
Jews	35	54
Evang. Christians	27	56
Athiests	26	59
Mormons	24	56
Gays & Lesbians	64	30
Hispanics	52	41
Blacks	49	46
Women	37	59

This study does not reveal actual incidents of discrimination, but people’s perception of others’ discrimination. Interestingly, the only group that fairs worse than Muslims is gays and lesbians.

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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 #95

Molly DiBianca at the Delaware Employment Law Blog reports on a CareerBuilder.com survey that 56% of employers either use or intend to use social media to background check applicants. Do you want to learn all about the role of social networking in your workplace? Then come to KJK’s next Breakfast Briefing: Google and Facebook and Twitter, Oh My! Emerging Workplace Technology Issues.

What About Clients? suggests that lawyers not only use litigation to cure a past problem, but also as a preventative measure to prevent future problems.

One problem that needs to be cured – wage and hour violations, at least according to Tresa Baldas at the National Law Journal. As I noted last week, I couldn’t agree more.

John Gilleland, Ph.D., guest posting at Quirky Questions, shares his poignant thoughts on the impact the recession is having on jury deliberations in employment cases.

Sindy Warren at the Warren & Hays Blog teaches employers what to do when an employee cries '”Harassment.”

Michael Haberman’s HR Observations, on age discrimination. Mike’s thoughts are a nice complement to mine from earlier this week on forced retirement.

Do you want to know what non-compete agreements have in common with Sexual Chocolate? Then check out Kris Dunn, The HR Capitalist.

Darcy Dees at Compensation Cafe, on the importance of regular performance reviews.

Michael Maslanka’s Work Matters discusses how not to handle an employee’s days off to adopt a baby.

Eric Welter’s Laconic Law Blog discusses the IRS’s decision-making process for employees versus independent contractors.

This week’s review ends with what might be the worst employee training idea ever. According to Above the Law, an employee has sued a New Jersey health center after it faked a break-in and hostage situation to teach employees how to handle a crisis.

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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.

Contradictory explanations buys an employer a jury trial on sex discrimination claim

There is nothing inherently wrong with an employer having more than one reason for making an employment decision. For example, you could fire an employee because she is insubordinate and because she has poor attendance. Or, you can not hire someone because she is unqualified and she dressed sloppily at the interview. However, when reasons cannot logically co-exist, you might get yourself in trouble. Peck v. Elyria Foundry Co. (6th Cir. 9/9/09) [PDF] provides a good example.

Elyria Foundry refused to hire Carolyn Peck for any of the positions for which she applied. In support of its decision, the Foundry offered five different reasons:

• Based upon a supervisor’s account of Peck’s prior work performance at another foundry, she had the beginnings of carpal tunnel syndrome.
• Peck had attendance issues at a prior job because of her children and car trouble.
• One of the positions Peck applied for had already been filled.
• The Foundry kept Peck’s application open but did not consider her for other positions because there were no available women’s facilities.
• Once the Foundry received a threatening letter from Peck’s attorney, it took no further action on her application.

The court took issue with these various explanations, but focused its attention on the timing. If Peck’s carpel tunnel and prior attendance issues barred her from employment, why did the Foundry keep her application open for other positions that were ultimately filled by men?

The next time you give more than one reason for an employment decision, run them through the common sense test to make sure that they cannot be folded back on themselves and create pretext where it might not otherwise exist.

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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.

Pretext as a four letter word

Pretext is a commonsense inquiry: did the employer fire the employee for the stated reason or not? This requires a court to ask whether the plaintiff has produced evidence that casts doubt on the employer’s explanation, and, if so, how strong it is. One can distill the inquiry into a number of component parts, and it can be useful to do so. But that should not cause one to lose sight of the fact that at bottom the question is always whether the employer made up its stated reason to conceal intentional discrimination.

These are the words of the 6th Circuit from earlier this week in Chen v. Dow Chemical [PDF], a race discrimination and retaliation case. In 1964, U.S. Supreme Court Justice Potter Stewart famously non-defined obscenity as, “I know it when I see it.” In employment litigation we often get caught up in formal burdens of proof, legitimate non-discriminatory reasons, pretext, and direct evidence. Yet, discrimination cases are usually decided with the same informality laid out by Justice Stewart. If an employment decision looks discriminatory, then it probably is. The challenge for employers is to avoid the appearance of a made-up reason.

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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? Forced retirement is a no-no

It’s still a fairly popular misnomer that businesses can force employees to retire at a certain age. For example, last week Law.com reported on a verdict against a Connecticut pharmaceutical company that forced its Chief Patent Counsel to retire at age 65.

With the exception of a few limited circumstances, mandatory retirement ages are about as close to a slam dunk case of illegal age discrimination you can find. The exceptions permit – but do not require – mandatory retirement:

• at age 65 of executives or other employees in high, policy-making positions.
• at age 55 for publicly employed firefighters and law enforcement officers.

Forcing an employee out is the same as requiring an employee to require. While lessening duties and responsibilities, demotions, and reductions in pay could cause an older employee to retire, it could also cause that same employee to claim a constructive discharge. However, there is no law that says that an older employee does not have to meet the same legitimate expectations of the job as any other employee. If an older worker is not performing as needed or required, document and treat as you would any other employee.

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

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

WIRTW #94

Time constraints lead to a shorter than usual review this week. But, I am here for my readers with what I think are the top 5 posts from the employment law blogosphere for this week (in no particular order):

• The New York Labor & Employment Law Report, with some suggestions on how to deal with employees’ social networking.

• Michael Fox’s Jottings by an Employer’s Lawyer, discussing the EEOC’s recent class action filing against UPS, and the difficult position employers are in when dealing with an injured or ill employee who needs more than 12 weeks of medical leave.

• Maryland Employment Law Developments, which attempts to answer the question, “How much privacy do employees really have at work?” The short answer – not much, but maybe more than you think.

• Mindy Chapman’s Case in Point, on employees’ access to restroom breaks.

• Paul Secunda, at the Workplace Prof Blog, who discusses the case of a New Zealand employee terminated for the egregious workplace crime of using ALL CAPS in emails.

Enjoy your Labor Day weekend. I’ll be back Tuesday with my thoughts on forced retirements under the ADEA.

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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.

Study of American working conditions presents opportunity for employers to tune up legal compliance

Cars need routine maintenance: an oil change every 3,000 miles, an annual inspection of the systems, and more serious TLC every two or three years. Without this service, even the best made car will die long before its time. With this service, clunkers can run for hundreds of thousands of miles.

According to a survey conducted by the Center for Urban Economic Development, the National Employment Law Project and the UCLA Institute for Research on Labor and Employment (as reported in the New York Times by as reported in the New York Times by Steven Greenhouse) many employers are not doing the routine maintenance that they should to keep their labor and employment compliance in tip top shape.

The survey of over 4,300 low-wage workers in Chicago, LA, and New York concluded:

• 26% of employees reported being paid less than the minimum wage.
• 76% of employee who work overtime reported not being paid the legally required overtime rate.
• Of the 25% who claimed off the clock work, 70% reported it was unpaid.
• 41% of employees who had money deducted from their pay reported illegal deductions.
• Of the 20% of employees who reported making a complaint to management or trying to start a labor union, 43% experienced some form of retaliation.
• 50% of employees who reported workplace injuries to their employer claimed some form of retaliation.
• 68% experienced some pay-related violation.

You could dismiss this study as left-wing propaganda. I urge employers to pay attention to it for one important reason. In the Obama administration, the federal agencies that enforce workplace laws are ramping up enforcement to an unprecedented level:

• This week, the Justice Department announced that it would hire an additional 50 attorneys to increase its enforcement of civil rights violations.
• The Department of Labor previously announced that it would be stepping up enforcement of its Wage & Hour Division.
• One need only scan the EEOC’s press releases to see that it has significantly ramped up its prosecution of EEO violations.

What does all this mean for the average employer? There is a wonderful opportunity available to get your hands dirty in HR matters and figure out where the violations exist in your workplace before a federal agency or plaintiff comes knocking. I hope your workers weren’t among those surveyed, and I hope your workplace isn’t as bad as those included in the survey. However, every workplace needs a tune-up every now and then. Handbooks should be reviewed annually. Harassment and EEO training should be done at least every two years absent a need for more frequent training. A wage and hour audit should be completed once every two to three years. Your stance on retaliation (“Don’t do it”) should be reinforced at every opportunity.

I can’t say for certain that treating your workplace policies like your car will avoid lawsuits. But, some routine preventative maintenance will go a long way to ensuring better compliance and fewer problems.

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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.

Sexual orientation is not a proxy for religious discrimination

Until Congress gets its act together and passes the Employment Non-Discrimination Act, it is still legal to openly discriminate against employees because of their sexual orientation. For example, in Pedreira v. Kentucky Baptist Homes for Children, Inc. (6th Cir. 8/31/09) [PDF], the employer admitted that it fired the plaintiff because of her sexual orientation. The 6th Circuit found that because sexual orientation is not a protected class, Pedreira did not have a sex discrimination claim under Title VII.

Employees, though, have found loopholes in the discrimination laws to successfully bring sex discrimination claims based on non-conformity to gender stereotypes. For example, in Prowel v. Wise Business Forms, Inc. (3rd Cir. 8/28/09) [PDF], the 3rd Circuit allowed a effeminate gay man to bring a sex harassment claim based on allegations that his co-workers called him names such as Princess and faggot.

In Pedreira and Prowel, both employees also claimed religious discrimination, asserting that their lifestyle did not comport with their employers’ conservative religious views:

• Pedreira claimed that living openly as a lesbian did not comply with her employer’s religion, and that she was terminated because she did not hold its religious belief that homosexuality is sinful.
• Prowel claimed that his co-workers harassed him because his homosexuality did not match their religious views.

The Courts disagreed. Sexual orientation discrimination is not illegal, and employees cannot use religion as a proxy for sexual orientation. Religious discrimination both precludes employers from discriminating against an employee because of the employee’s religion, and because the employee fails to comply with the employer’s religion. The discrimination, however, must be targeted at a specific religion. The plaintiffs did not allege that their religion had anything to do with their terminations, or that their sexual orientation was tied to their religious beliefs. They merely claimed that their employers’ religious beliefs frowned on their lifestyles.

It is likely that sexual orientation discrimination will be outlawed in Ohio or nationwide by 2010 at the latest. Until then, this issue is one of morals for business owners. As for me, I think it’s reprehensible that this type of misconduct still occurs in what we advertise as the cradle of freedom.

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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? Fake job references?

More people are out of work at any time in the past 25 years. And, it appears that some are taking desperate measures to find new jobs. ABCNews.com reports that companies have sprung up that will sell a job hunter a fake reference: CareerExcuse.com and Alibi HQ.

It’s not newsworthy that people lie to get jobs. What is newsworthy, though, is the ease at which the desperate unemployed can find a bogus, yet legitimate sounding, employment reference. The internet has made it almost too easy for a job candidate to create an entirely fictitious, yet 100% verifiable, work history.

Employers screening job candidates need to be extra vigilant. Just as the internet has enabled companies like CareerExcuse to flourish, it also provides the tools for you to call a bluff. Don’t just take an applicant’s word that he worked for ABC Widgets for 10 years. Google the company and see if it exists. Look for an independent phone number to verify employment. A little diligence up front can go a long way to saving headaches down the road.

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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.

6th Circuit re-affirms mixed-motive causation under the FMLA

Earlier this summer, the U.S. Supreme Court did away with the notion of a mixed motive termination in an age discrimination case. In Gross v. FBL Fin. Servs., the Court held that to succeed on an disparate treatment claim under the ADEA, a plaintiff must prove that age was the only cause of the challenged action. I’m not breaking ground by reporting that employers make decisions that implicate statutes other than the ADEA. And, in those decisions, there are often more than one motive present. So, does the Gross, but-for rule apply in mixed-motive cases under other statutes, such as the FMLA? Last week, in Hunter v. Valley View Local Schools (8/26/09) [PDF], the 6th Circuit gave us the answer.

Before we get into what the court ruled, it helps to understand the issue by briefly looking at exactly what happened to Eunice Hunter, a custodian for the Valley View schools. Following a car accident, Hunter had three rounds of surgery over the span of two years. Following each surgery, she missed months of work, and returned with restrictions. Ultimately, the school district placed her on involuntary unpaid leave. The superintendent gave two reasons for the termination – her excessive use of FMLA leave, and her inability to perform her job because of her permanent restrictions. The district court dismissed Hunter’s FMLA claim because the school district would have placed her on involuntary leave regardless of her FMLA leave because of the permanent medical restrictions.

The 6th Circuit, however, reversed, finding that unlike the ADEA, the FMLA authorizes claims based on an adverse employment action motivated by both the employee’s use of FMLA leave and also other permissible factors. In such cases, if the employee presents evidence that the employer discriminated because of FMLA leave, the burden shifts to the employer to prove that it would have made the same decision absent the impermissible motive.

The standards might change, but for businesses the lesson is the same (and I apologize if you’ve heard this before). Documentation is key. Whether an employer can prove discrimination via a mixed motive or an only motive, it won’t mean a hill of beans to a company if it cannot prove that it had a legitimate reason for what it did.

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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 #93

This week’s review starts with some of fellow blogger’s thoughts on the passing of Ted Kennedy:

• The Word on Employment Law with John Phillips, discusses Sen. Kennedy’s employment law legacy.
• Mike Elk at Today’s Workplace draws a lesson from the death of his brother.
• The EFCA Report, on Sen. Kennedy at the EFCA.
• Christopher McKinney at the HR Lawyer’s Blog.

This week also had an abundance of posts on social media in the workplace. I’m thinking a lot about this topic in light of KJK’s upcoming Breakfast Briefing on this issue:

• Mark Toth’s Manpower Employment Blawg, on how employers use social media.
• Elizabeth Bernstein at the Wall Street Journal shares her thoughts on how Facebook ruins friendships.
• Natalie Beck at the Employscreen IQ Blog on the downside of hiring based on a favorable Facebook profile.

Dan Schwartz at the Connecticut Employment Law Blog is focusing on Tropical Storm Dennis and whether workplaces are ready for really bad weather.

The Delaware Employment Law Blog’s Molly DiBianca suggests that employers put a time limit (5 years, according to Molly) on the use of criminal records.

With tongue planted in cheek, Jennifer Hays at the Warren & Hays Blog lists the top 5 reasons not to do an HR audit.

Ross Runkel’s LawMemo Employment Law Blog shares his thoughts on the EEOC’s recent class action filing against AT&T for age discrimination.

Michael Maslanka’s Work Matters suggests that we consider the effect a complaint will have on our intended target before we file it.

Rush Nigut’s Rush on Business draws a lesson for trial lawyers and their clients from Tiger’s loss at the PGA.

Jay Shepherd’s Grunted Employees thinks there are 7 deadly workplace sins.

Kris Dunn – The HR Capitalist – discusses the interplay between non-compete agreements and employee talent.

Wage & Hour Counsel examines the Department of Labor’s internal techniques and strategies for conducting wage and hour investigations.

According to World of Work, in Washington State it’s ok for an employer to fire employees who complain about their boss.

Nolo’s Employment Law Blog reports that managers may be personally liable for unpaid wages if a company goes bankrupt.

Jill Pugh’s Employment Law Blog discusses the recent uptick in pregnancy discrimination claims.

Michael Haberman’s HR Observations, on sexism.

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

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

Ohio Supreme Court avoids the issue of whether sex discrimination includes lactation

Totes/Isotoner Corp. fired LaNisa Allen for taking unauthorized, extra breaks during her work day. Allen claimed that her termination constituted unlawful sex discrimination because she had taken the breaks for lactation. This morning, in a terse three-page opinion, the Ohio Supreme Court – by a six to one vote – affirmed the legality of Allen’s termination. It did so based on a lack of evidence of pretext in the trial court. It also completed avoided the key issue – whether alleged discrimination due to lactation is included within the scope of Ohio’s employment-discrimination statute as sex discrimination.
Despite the six to one opinion for the employer, three Justices reached the ultimate issue and concluded that Ohio’s proscriptions against employment discrimination on the basis of sex/pregnancy includes lactation.
Justice O’Conner published a lengthy concurrence – with which Chief Justice Moyer concurs – that lactation is covered by Ohio’s proscriptions against employment discrimination on the basis of sex/pregnancy. However, because Allen did not obtain her employer’s permission before taking her lactation breaks, her claim failed:

Although Allen’s unauthorized breaks may have been to pump milk, Allen could not properly engage in such actions without her employer’s knowledge and permission. The [laws] mandate that an employer treat pregnancy with neutrality, but not preferentially.

Justice Pfeifer, dissenting, offers some key questions that he thinks a jury should have been given the opportunity to answer:

• Why Allen’s trips to the restroom outside scheduled break times were different from the restroom trips other employees made outside scheduled break times?
• Did employees have to seek permission from a supervisor to take an unscheduled restroom break.
• What makes Allen’s breaks different if other unscheduled bathroom breaks were allowed?

Despite totes/Isotoner’s victory, employers should not view this case as a license to deny breaks to lactating employees. To the contrary, if another opportunity arises, I have little doubt that a majority of the court will agree with Justice O’Conner, Chief Justice Moyer, and Justice Pfeifer that the definition of sex discrimination covers lactation.
Before you institute a policy prohibiting breast pumping or feeding at work, or terminate a lactating employee for taking breaks, consider how you’ve treated other employees’ breaks during the work day. If you can’t find a consistent pattern of discipline or termination of similar non-lactating employees, you should reconsider the decision.
A copy of the full opinion is available at Allen v. totes/Isotoner Corp. (8/27/09) [PDF].

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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 finds no liability for conclusions reached during harassment investigation

Can an employee sue you for conclusions reached during an internal harassment complaint? According to the 6th Circuit in Courie v. Alcoa Wheel & Forged Products (8/18/09) [PDF], the answer is no.

Someone left an inappropriate note on an Alcoa cafeteria table where African-American employees sat. Alcoa’s HR department interviewed Courie during its investigation. Courie could not recall the name of the person sitting with him at that table on the day the note was left. Because he could not recall his co-worker’s name, he referred to him as “Jew Boy.” After the interview, Alcoa later sent Courie a warning that it considered that term “racially offensive.” In response, Courie filed a grievance with his union.

Courie later learned that Alcoa and his union had considered settling his original dispute by removing the discipline in exchange for a concession that the statement was inappropriate and that Alcoa reacted appropriately. Based on that proposed settlement, Courie sued Alcoa and his union. claiming discrimination, intentional infliction of emotional distress, and defamation.

The court upheld the lower court’s decision dismissing all of Courie’s claims:

• The discrimination claim failed because the settlement agreement was not an “adverse action.” Indeed, according to the court, it was the opposite of adverse – it proposed to remove the traces of the original written warning from his record.

• Because the proposed settlement agreement was not discriminatory, it could not support a claim for intentional infliction of emotional distress.

• While the court did not address the defamation claim, I’ve previously noted that employers enjoy a (qualified) privilege for statements made during internal investigations.

So, what does this mean for employers? Reasoned rationales for the conclusions reached and discipline imposed during an internal investigation are paramount. The target of an investigation should not be able to come back at you for discrimination, defamation, or anything else in the kitchen sink if all your ducks are in a row.

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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.

Beware of discrimination risks when rehiring ex-employees

As the recession continues to show signs of ending, companies that had previously laid off employees will need to re-staff. According to CNN.com, a recent Department of Labor study finds that 38% of employers intend to recall cut workers. While a laid-off non-union employee has no right to be recalled or transferred into an open position, rehiring is not without legal risk. A recent 6th Circuit decision – Owens v. Wellmont, Inc. (6th Cir. 8/18/09) [PDF] – illustrates that employers need to pay as much attention to who is not recalled at to who is recalled.

After Wellmont eliminated Owens’s position in a reduction-in-force, she asked management about job openings in other departments. Wellmont hired younger candidates for those positions. The appellate court was bothered by the fact that management did not treat Owens’s discussions with management as formal applications for the open positions:

Owens did more than make a generalized expression of interest in working for Wellmont—Owens specifically informed Adams that Owens was interested in a position that was currently open.

As long as an employee makes a reasonable attempt to demonstrate to the employer an interest in the job, that employee can plead a discriminatory hiring claim if the job goes to someone else.

The lesson for employers is that if you are recalling RIF’ed employees, don’t discount someone merely because he or she did not make a formal application. If someone expressed interest in returning, it may be enough to trigger your responsibility to consider them for recall, or cause potential discrimination liability for failing to do so.

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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? What are an employer’s rights when an employee fails to give timely notice of FMLA leave?

Employees cannot simply take FMLA leave on a whim. They must provide their employers at least some notice, depending on the circumstances. An employee who needs foreseeable FMLA-qualifying leave is required to provide at least verbal notice sufficient to make the employer aware of the need for the leave and its anticipated timing and duration. An employee who needs unforeseeable FMLA-qualifying leave must, as soon as practical, provide sufficient information for the employer to reasonably determine whether the FMLA applies to the leave request.

What happens, though, if an employee fails to give timely notice?

1. Foreseeable leave – 30 days: When the need for FMLA leave is foreseeable at least 30 days in advance, and the employee fails to provide at least 30 days’ advance notice, the employer may delay FMLA coverage until 30 days after the date the employee provides notice. Thus, if an employee should have provided 30 days’ notice, but only provided 29 days’ notice, the employee can delay FMLA coverage for a full 30 days. This section is the most penal.

2. Foreseeable leave – less than 30 days: When the need for FMLA leave is foreseeable less than 30 days in advance, and an employee fails to give notice as soon as practicable under the facts and circumstances, the employer’s right to delay FMLA coverage for leave will vary from case to case. For example, if an employee reasonably should have given the employer two weeks notice but instead only provided one week notice, then the employer may delay FMLA-protected leave for one week.

3. Unforeseeable leave. When the need for FMLA leave is unforeseeable, and an employee fails to give notice as soon as practicable under the facts and circumstances, the employer’s right to delay FMLA coverage for leave will vary from case to case. For example, if it would have been practicable for an employee to have given the employer notice of the need for leave very soon after the need arises consistent with the employer's policy, but instead the employee provided notice two days after the leave began, then the employer may delay FMLA coverage of the leave by two days.

These rules provide employers and important tool. Delaying an employee FMLA coverage means that any absences can be considered unexcused. For an employee who fails to give timely notice of a foreseeable FMLA leave, the employee could accumulate enough absences to warrant termination before the FMLA coverage ever kicks in.

To take advantage of these provisions,the Department of Labor requires that the employee had actual notice of the FMLA notice requirements, through a proper workplace posting and a properly distributed FMLA policy. If you are unsure whether your postings and policies pass muster, check with your employment counsel.

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

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

A lesson on reasonable accommodations

My family and I went to Sesame Place last Friday. As we were preparing to leave the park, my three-year-old daughter noticed a queue for Cookie Monster and Telly Monster, and asked if she could see the characters before we left. When we got to the end of the line, however, the handler told us that the line was closed. If you want to know what absolute dejection looks like, you should have seen the look on my daughter’s face. She began to uncontrollably cry, sobbing that she just wanted to give Cookie a hug. I began to plead with the employee to reopen the line for my daughter, but she told me that doing so would be unfair to the hundreds of other children she had already turned away. My daughter’s genuine tears must have moved the employee, though, because she granted us VIP access to the holding area where all of the characters that march in the parade. Instead of just getting to hug Cookie and Telly, my daughter got to meet and hug every character in the park.

This parable holds a very good lesson for employers when dealing with a disabled employee’s request for a reasonable accommodation. The employee is not entitled to an accommodation of his or her choosing. Instead, the employer may choose among available accommodations as long as the chosen accommodation is effective. If more than one accommodation is effective, the employer has the ultimate discretion to choose between effective accommodations. Cost, ease of provision, and the employee’s preference are factors to be considered, but are not dispositive. Instead, as part of the interactive process, the employer may offer alternative suggestions and discuss their effectiveness in removing the workplace barrier.

My daughter would have been very happy at the back of the line to meet Cookie Monster. That accommodation, however, was not feasible. In your workplace, the alternative will not always work out as well for the employee as it did for my daughter. Engaging in the required dialogue with the employee, however, helps both sides come to an understanding as to the reasonableness of the proffered accommodation.

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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 #92

Apparently, my incessant linking has labeled me as a potential spammer according to Blogger. Annoyed but undeterred, here’s what I’ve been reading this week (assuming Blogger gets its act together and releases me from its constraints).

Above the Law reports on an attorney who asks job applicants for their political beliefs, along with a recent personal or family photo before he will consider them for employment. Can you say Title VII violation?

Walter Olson’s Overlawyered has a story on what may be the worst legal defense of all time – a hotel sued by a woman raped in its parking lot claimed that she was negligent, careless, failed to mitigate her damages.

Laura Harshbarger at the New York Labor & Employment Law Report has some very good tips on handling workplace investigations. One point that is missed, though, is to be mindful that whatever work product is created during the investigation, even if done by the employer’s attorney, is likely admissible in a subsequent lawsuit.

The Word on Employment Law with John Philips counsels that investigations of workplace misconduct should be thorough before an employee is terminated.

Strategic HR Lawyer reprints a CareerBuilder survey of the top employee complaints.

Michael Fox’s Jottings By An Employer’s Lawyer reminds employers that ignorance of the law, such as the FMLA, is no excuse. For a similar case out of the 6th Circuit, take a look at ‘Tis better to have learned and lost.

Michael Maslanka’s Work Matters discusses some recent findings on employers’ opposition to union organizing.

Michael Haberman at HR Observations shares his thoughts on racism in the modern workplace.

If you’re looking for information on how to handle disabled employees, Lawffice Space suggests that you try to navigate around the federal government’s new site on the topic – disability.gov.

Lee Sevier at Wage & Hour – Developments & Highlights, on the importance of properly distinguishing between employees and independent contractors.

Jill Pugh’s Employment Law Blog thinks employees should use common sense when it comes to social networking.

Sindy Warren at the Warren & Hays Blog reminds companies that military status discrimination is illegal.

Richard Tuschman at the Florida Employment & Immigration Law Blog, on bystander harassment. For my thoughts on this issue, take a look at Further reflections on Reeves v. C.H. Robinson Worldwide.

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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.

On redemption and second chances

It’s been a week since my beloved Philadelphia Eagles shocked the sports world by signing convicted felon Michael Vick to a two-year contract. I’ve waited to comment on this story because I needed the time to process how I feel about my team being the one to provide a second chance to someone who did what Vick did.

Here’s what I’ve come up with: an employee’s opportunity for a second chance is proportional to one’s ability and talent. Something to consider the next time an employee makes an colossal blunder – does the employee have enough value to your organization to warrant a second chance?

For more thoughts on what Michael Vick has to do with employment law, I recommend my fellow bloggers:

• Michael Maslanka’s Work Matters: Lessons employers can learn from the Eagles' decision to hire Michael Vick.
• The Word on Employment Law with John Phillips: Michael Vick and Squeaky Fromme.
• Philip Miles’s Lawffice Space: Michael Vick and Hiring Criminals.
• William Bowser at the Delaware Employment Law Blog: What Can Employers Learn From Michael Vick and the Eagles?
• Jason Morris at the employeescreen IQ Blog: As Michael Vick Returns to NFL, Employment Lawyers Push Criminal Records Checks.
• Terri Albee at Compensation Cafe: How Do Your Non-Work Related Activities Affect Your Compensation?

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

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

Announcing the next KJK Breakfast Briefing: Google and Facebook and Twitter, Oh My! Emerging Workplace Technology Issues

Do you know what your employees are doing on-line? Join KJK’s team of employment lawyers to learn:

1. What are Facebook, Twitter, and LinkedIn, and do you need a policy to guide your employees on how to use them inside and outside of work?
2. What is “textual” (sexual) harassment, and how does your investigation of it implicate the Stored Communications Act?
3. What wage and hour issues can arise though the use of workplace technology?
4. What are the legal risks of “googling” job applicants during the hiring process?

Date:	Tuesday, September 15, 2009
Time:	8:00-8:30 Continental Breakfast
	8:30-9:30 Presentation
	9:30-10:00 Q&As
Place:	The Club at Key Center, 127 Public Square, Cleveland (on-site parking is free)

If you are interested in attending this free seminar, or for more information, please contact Andrea Hill, (216) 736-7234 or ach@kjk.com, by September 8, 2009.

Government updates swine flu guidance for businesses

Just a quick note to let everyone know that the federal government has updated its flu guidelines for businesses.  Ann Beauchesne at The Chamber Post has the details.

Refusal to take drug test bar workers’ comp retaliation claim

Many companies require employees to submit to drug tests after suffering a workplace injury. The rationale is simple – intoxication is one of the few complete defenses an employer has to a workers’ comp claim for a workplace injury.

What happens, though, if the injured employee refuses to take the drug test? That scenario presented itself to SanMar Corporation in late-2006. Thomas Ferguson left work complaining of a non-work-related backache. He told the ER nurse, however, that his pain was caused by an aerial harness he had to wear at work. Upon hearing the injury was work-related, the nurse asked Ferguson to submit to a drug test, which he did.

Ferguson returned to work the following week with light duty restrictions. SanMar’s HR department that he needed to submit for drug testing. Ferguson complained that he had already taken a test the prior week. SanMar, however, required a re-test because the earlier test did not comply with its policy for the employee to be transported to the testing facility. Ferguson went on his own, without SanMar even knowing he had suffered a workplace injury.

Because of Ferguson’s protests about the re-test, and his “nervous and fidgety” reaction, SanMar’s Assistant Manager required that the re-test be monitored. Upon learning that the drug test would be observed, Ferguson refused to be tested. SanMar subsequently terminated him for refusing to submit to a drug test in contravention of company policy.

Ferguson sued, claiming that SanMar terminated him in retaliation for his workers’ comp claim. In Ferguson v. SanMar (8/17/09), the Butler County (Ohio) Court of Appeals affirmed the trial court’s dismissal of Ferguson’s claim:

Kirk, as assistant facility manager, made that determination after noticing Ferguson’s “nervous and fidgety” reaction to being asked to resubmit to a drug test. Kirk’s decision was not punitive action against Ferguson because Ferguson filed a workers’ compensation claim. Instead, it was a management decision predicated on a suspicion that Ferguson was using drugs or alcohol in the workplace.

For Ferguson’s argument to succeed, the evidence would have to show that SanMar knew that requiring him to be transported to the hospital and observed while he submitted to the test would induce Ferguson’s refusal to be tested. There is no way that SanMar, or anyone for that matter, could have known that Ferguson would refuse to be tested…. It was Ferguson’s own refusal to submit to the test that motivated his discharge. That refusal, under the written policy, was likewise sufficient to result in Ferguson’s discharge.

Drug testing policies are complicated and very easy to get wrong. Indeed, while Ohio does not have a specific statute that governs such policies, other states do (Oklahoma comes to mind). If you are considering implementing a drug testing program for your workforce, experienced counsel should vet it before you put it into circulation. If you already have a policy in place, it should be reviewed periodically for compliance.

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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? Harassment by a non-employee

Last week, an Orlando, Florida, jury convicted a Pennsylvania tourist of groping Minnie Mouse. Apparently, the man thought it was okay to grab Minnie’s breasts and bottom through her costume while visiting the character at the Magic Kingdom.

Do you know what an employer’s obligations are when an employee complains of harassment by a non-employee such as customer, vendor, or contractor? The obligations are exactly the same as if the alleged perpetrator was an employee. In fact, Ohio has a specific regulation that addresses this exact scenario: Admin. Code 4112-5-05(J)(5):

An employer may also be responsible for the acts of nonemployees (e.g., customers) with respect to sexual harassment of employees in the work place, where the employer (or its agents or supervisory employees) knows or should have known of the conduct and fails to take immediate and appropriate corrective action. In reviewing these cases the commission will consider the extent of the employer’s control and any other legal responsibility which the employer may have with respect to the conduct of such nonemployees.

At the end of the day, a harassment complaint by an employee against a non-employee should not be treated any differently than an intra-employee complaint:

1. Separate the complaining employee from the alleged harasser.

2. Promptly and fully investigate the allegations.

3. Evaluate the evidence and make a reasoned conclusion as to what happened.

4. Take prompt and effective remedial steps, if necessary.

5. Use the complaint as an opportunity to retrain employees about your sexual harassment policy.

[Hat tip: Employeescreen IQ Blog]

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

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

Papering a personnel file as evidence of retaliation?

When Carolyn Upshaw started filing EEOC charges against her employer, Ford Motor Company, it began to document her on-going performance problems. After she filed her 3rd charge and a lawsuit in a 15-month period, Ford terminated her employment. The termination occurred nine months after the last EEOC charge and four months after the lawsuit was filed. In Upshaw v. Ford Motor Co. (8/14/09) [PDF], the 6th Circuit concluded that her underlying discrimination lawsuit was baseless, but that her retaliation lawsuit, premised on the timing of Ford’s documentation of her performance problems, warranted a jury trial:

We have held that the combination of close temporal proximity between an employer’s heightened scrutiny and that plaintiff’s filing of an EEOC charge is sufficient “to establish the causal nexus needed to establish a prima facie case” of retaliation…. Here, Upshaw has proffered evidence that Ford subjected her to heightened scrutiny soon after she filed her 2003 EEOC charge. It is undisputed that Hughes-Sharp and Brooks began developing a timeline of Upshaw’s employment in fall 2003, and that they requested that other Ford employees submit information about Upshaw’s complaints to Human Resources…. Given the close temporal proximity between Upshaw’s August 2003 EEOC charge and Ford’s request for information from other employees documenting Upshaw’s complaint activity, and Brooks’s request for discipline, a reasonable juror could find that Upshaw has established a prima facie case of retaliation.

I’ve written in the past about the importance of timely and accurate documentation of performance problems. The Upshaw case underscores this point. It is not enough to document performance problems. The documentation must be consistent. A lot of employers think nothing of papering a personnel file after an employee becomes a pain in their side. Under Upshaw, such papering, that only begin once an employee files a discrimination charge or engages in other protected activity, could be used as prima facie evidence of retaliation. In other words, document early and document often, and don’t document selectively.

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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 #91

This week’s tip-of-the-week is courtesy of Rush Nigut’s Rush on Business – get it in writing. A handshake or an oral promise is only as good as the relationship that supports it. The problem, however, is that by the time that handshake ends up in court, the relationship that underlies is has deteriorated to the point that, well, you’ve ended up in court. And it’s amazing how bad memories become once a relationship has deteriorated into litigation.

Mark Toth’s Manpower Employment Blawg draws some lessons on how not end up in court based on some recently reported EEOC settlements and verdicts.

Anthony Zaller at the California Employment Law Report offers the top 10 mistakes in drafting job descriptions. I’ll add number 11 (which should really be number 1) – not having written job descriptions at all.

Dennis Westlind at World of Work shares his opinion on Title VII and body piercings.

Jeffrey Hirsch at the Workplace Prof Blog discusses yet another employee fired for something posted on her Facebook page – in this case, expletive complaints about her boss.

Staying on the topic of social networking, Patrick Smith’s Iowa Employment Law Blog thinks that employers should act cautiously when performing internet searches on job applicants.

William Bowser at the Delaware Employment Law Blog tells when an employer should consider offering severance.

Dan Schwartz at the Connecticut Employment Law Blog helps employers brace for this fall’s return of the swine flu.

Finally, I end this week’s review with some wage and hour topics.

Jennifer Hays at the Warren & Hays Blog has an important bit of information for officers and managers – they can be held independently liable for unpaid wages under the FLSA.

Wage & Hour Counsel talks about when employers are and are not liable for employees’ time spent changing into and out of company-issued gear.

Fair Labor Standards Act Law discusses retaliation under the wage and hour laws.

Finally, Jay Shepherd’s Gruntled Employees reports on a ruling by a Massachusetts court that a strip club had misclassified its dancers as independent contractors. Jay’s advice if you mess up an employee’s pay:

There’s no defense if you got it wrong. Our advice to employers: make sure you get the pay right. Or be prepared to settle if you don’t.

And bring plenty of singles.

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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.

Can you still be funny at work in a politically correct work?

Today’s HR Daily Advisor, published by BLR, asks the following question: Can You Still Tell a Joke in the Office? Instead of answering that question, I turn today’s post over to David Brent:

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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.

Lawsuits over off-the-clock smart phone use ask, “What is work?”

More than two years ago I cautioned that employers who require non-exempt employees to carry Blackberries or other devices that receive work-related emails could be liable for the time those employees spend reading and responding to those emails outside of work. (Can't get away from the office).

It appears that the plaintiffs’ bar has caught with this potential theory of liability. Michael Sanserino, in Monday’s Wall Street Journal, reports that two different lawsuits have been filed claiming that hourly employees should be compensated for time spent responding to emails while off the clock.

Even if reading and responding to work related email is work-related (and it likely is), I’m not convinced that employers should have to pay for any time spent performing these tasks. Most messages can be read in a matter of seconds or, at most, a few short minutes. The Fair Labor Standards Act calls such time de minimus, and does not require compensation for it. “Insubstantial or insignificant periods of time beyond the scheduled working hours, which cannot as a practical administrative matter be precisely recorded for payroll purposes, may be disregarded.” 29 C.F.R. § 785.47. Think of the administrative nightmare of an HR or payroll department having to track, record, and pay for each and every fraction of a minute an employee spends reading an email.

If a business wants to err on the side of caution, it could always draft a policy requiring employees to turn off their smart phones when they leave work for the day, or simply leave them at the office. With that policy, though, why issue the devices in the first place?

For more thoughts on this topic, I recommend the thoughts of my fellow bloggers:

• Ashby Jones at the Wall Street Journal Law Blog.
• Devora Lindeman at the Overtime Advisor.
• Patrick Smith at the Iowa Employment Law Blog.
• Jeffrey Hirsch at the Workplace Prof Blog.

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

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