Top 10 Labor & Employment Law Stories of 2009: Numbers 4 and 3

4. The Swine Flu. Apart from the economy, no story dominated the headlines more in 2009 than H1N1. Because employees get sick, and need to be away from work when they are, H1N1 greatly impacted our workplaces:

• Swine flu: panic versus preparedness
• EEOC chimes in on swine flu with guides on how to prepare and remain Title VII/ADA compliant
• Can employers require flu shots for their employees?
• Do you know? Handling employees with suspected swine flu
• Do you know? H1N1 and employees’ leave rights

3. The Obama Administration’s DOL & EEOC. True to his word, President Obama has prioritized the plight of the working-class. One need only scan the EEOC’s press releases to see that it has significantly ramped up its prosecution of EEO violations. Meanwhile, the Justice Department announced that it is hiring an additional 50 attorneys to increase its enforcement of civil rights violations. The Department of Labor has hired 250 new investigators to step up enforcement of its Wage & Hour Division, specifically to target industries that employ vulnerable workers, such as agriculture, restaurants, janitorial, construction, and car washes.

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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.

Top 10 Labor & Employment Law Stories of 2009: Numbers 6 and 5

6. The U.S. Supreme Court’s Pro-Employee decisions. 2009 brought us two important pro-employee Supreme Court decisions. In Crawford v. Metropolitan Gov’t of Nashville, the Court held that Title VII’s anti-retaliation provision covers employees who answer questions during employers’ internal investigations. In Ricci v. DeStefano, the court found that disparate treatment of non-minorities trumps a disparate impact on minorities.

5. The Ledbetter Fair Pay Act. A mere 9 days after his inauguration, President Obama made the Ledbetter Fair Pay Act the first piece of legislation he signed into law. The Ledbetter Act reversed the Supreme Court’s eponymous decision, which had held that in Title VII pay discrimination cases the statute of limitations begins to run when the pay-setting decision is made. This law provides that a new and separate violation occurs each time a person receives a paycheck resulting from “a discriminatory compensation decision.” Thus, each paycheck that reflects an alleged discriminatory pay decision will start a new and distinct limitations period. Unfortunately for employers, courts have been applying this law broadly by extending statutes of limitations for all sorts of employment decisions – promotions and demotions, for example.

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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.

Top 10 Labor & Employment Law Stories of 2009: Numbers 8 and 7

8. Associational Retaliation. In Thompson v. North Am. Stainless, the 6th Circuit reversed itself and held that retaliation is only actionable in a suit by a primary actor who engaged in protected activity, and not by a passive bystander. This decision, which rejected a retaliation claim by the fiancée of an employee who had engaged in protected activity, has been appealed to the U.S. Supreme Court. The Supremes have asked for the view of the federal government before it decides whether to hear this case. Expect more on this issue in 2010.

7. Genetic Information Discrimination. On November 21, it became illegal for employers to discriminate on the basis of genetic information, creating the first new federally protected class in nearly two decades.

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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.

Top 10 Labor & Employment Law Stories of 2009: Numbers 10 and 9

Today, I continue a tradition that I started last year – using the week between Christmas and New Year’s to count down the top 10 Labor & Employment Law stories of the past year. We start today, with numbers 10 and 9. We’ll wrap up on Dec. 31 with the top two, and fill in the rest in between.

10. Ohio Supreme Court punts on Employees’ Lactation Rights. In Allen v. totes/Isotoner Corp., the Ohio Supreme Court dodged the issue of whether alleged discrimination due to lactation is included within the scope of Ohio’s employment-discrimination statute as sex discrimination. Before you think that you can deny a female employee’s lactation request, consider that two of the Court’s more conservative justices wrote a separate opinion in which they unequivocally concluded that lactation is covered by Ohio’s proscriptions against employment discrimination on the basis of sex/pregnancy.

9. New FMLA Regulations and ADA Amendments Take Effect. Both are holdovers from the last year of the Bush administration, and both greatly impact how employers handle employees’ medical issues. The FMLA regulations greatly increase employers’ access to medical information. The paradigm-changing ADA amendments shift the focus in ADA lawsuits from whether an employee meets the definition of “disability” to what accommodations will enable an employee to perform the essential functions of the job.

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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.

Expansion and extension of COBRA subsidy

President Obama has enacted legislation that both expands and extends the original federal COBRA subsidy created by the American Recovery and Reinvestment Act of 2009. If you recall, employees who were involuntarily terminated prior to December 31, 2009, received a 65% subsidy of their COBRA premiums for up to nine months. The new legislation:

• Expands the total allowable time an individual can claim the COBRA subsidy by six months (from nine to 15 months); and

• Extends the subsidy to individuals who are involuntarily terminated between January 1, 2010, and February 28, 2010.

The legislation also includes two new notification requirements for plan administrators within 60 days:

• To any individual who was eligible for the COBRA subsidy or who becomes eligible for COBRA at any time on or after October 31, 2009, notice of the expanded benefits.

• To any individuals who lost their subsidy because they reached the 9-month limit and failed to make timely payments of COBRA premiums thereafter, notice regarding the expanded benefits, including information on the ability to make retroactive premium payments.

Employers will have to amend their current COBRA paperwork to reflect these changes. Dan Schwartz at Connecticut Employment Law lists 5 steps employers should be taking now, in light of these changes:

1. Compile a list of individuals who are currently receiving the COBRA subsidy. Those individuals are going to need to be informed that the period is going to be extended by 15 months and that to receive the subsidy they will need to continue to pay the premium as they have.

2. Compile a list of individuals who were receiving the COBRA subsidy but whose nine months of eligibility had expired. For those individuals, they will need to be informed that they can "re-start" COBRA. Sample notices from the DOL should be available for this purpose in the next few days.

3. Compile a list of individuals are COBRA eligible, but who were not going to receive the COBRA subsidy because the time period was going to expire beforehand. This will typically include those who were terminated within the last month, who were likely continuing on the employer's health plan until December 31, 2009. Those individuals will now need to receive new notices that they will be eligible for the COBRA subsidy; again, the DOL should be preparing sample notices in the next few days.

4. In the interim, employers may want to send out a letter to all such individuals informing them that changes are on the way and that you will be providing them with updates as they become available. This might keep your HR staff a little less busy answering phone calls and give them some more time to comply with this law.

5. Going forward for the next 75 days or so, employers will need to inform those who are laid off that they may be eligible for this COBRA subsidy. Again, those terminated by 2/28/10 will be eligible regardless of when the actual COBRA period is scheduled to begin.

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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? 10 tips for drafting a workplace electronic communications policy

Does your business have an electronic communications policy? Last week, Bowman v. Butler Township provided a gentle reminder of why your business should have one. Here are some points to consider when putting a technology policy in place in your workplace.

1. Is your technology limited to work-related use only, or will you permit some personal non-work use? For example, can email be used for personal reasons? What websites (YouTube, Amazon, eBay, CNN, ESPN?) are off-limits?

2. Account for the handling of your business’s trade secrets, confidential, and proprietary information.

3. Remind employees of their non-harassment obligations. Offensive, demeaning, or disruptive messages should always be prohibited, as should offensive racist, discriminatory, or sexual content.

4. Advise employees that what is transmitted over the company’s system belongs to the company and employee do not have any expectation of privacy.

5. Whatever degree of monitoring you are going to undertake, let employees know and obtain their consent.

6. For how long are you going to store electronic content and how often is it deleted? Tie together your communications policy and records retention policy.

7. Are employees allowed to remove electronic data from the workplace?

8. Provide for virus protection.

9. Don’t forget social media.

10. As with all employment policies, account for discipline for violations.

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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.

Honest belief wins out over dishonest conduct in FMLA retaliation case

The facts of Weimer v. Honda of Am. (6th Cir. 12/14/09) [pdf] are straight forward. James Weimer requested FMLA leave from Honda after injuring his head at work, which Honda approved. After Weimer returned to work, two of his neighbors reported to Honda that it had seen Weimer build a new front porch on his home while on leave. Honda conducted an investigation, which included surveillance video. During the investigation, Weimer admitted \to working on his porch during his FMLA leave. Honda terminated him for misrepresenting his need for medical leave.

The 6th Circuit held that the jury, which found in Honda’s favor, was properly instructed that Honda could prevail if it was wrong as to its stated reason for discharge, but its belief was honestly held:

Weimer asserts that the only way the jury should have been able to decide against him was to conclude that he had deliberately lied to the physicians to go on FMLA leave, and he did not actually have a serious health condition. If Weimer engaged in personal behavior at home that was beyond the job-related restrictions given to him by his physicians, he argues he could do so at his own risk….

When considering whether Honda terminated Weimer for a legitimate reason, the jury was instructed that the issue was not so much whether Weimer actually lied, but rather whether Honda reasonably and honestly believed that Weimer lied….

Honda presented evidence of its investigation into Weimer’s alleged misrepresentations, including the video surveillance tape, interviews with eye-witnesses who saw Weimer working on his porch, and who reported that Weimer admitted that he came back to work because he realized he had been “busted,” and interviews with Weimer himself. Weimer’s own testimony at trial included contradictory statements about his activities that would lead a reasonable fact finder to question his credibility. There was sufficient evidence for the jury to conclude that Honda reasonably relied on the facts before it at the time its decision to terminate Weimer was made.

The takeaway for employers from the Weimer case is to make sure that all reasons in support of a termination are documented. Because Honda could prove that Weimer violated its conduct standards, it became irrelevant whether he had actually lied about his need for FMLA leave. All that matter is that Honda could back-up its conclusion by its investigation. If you can verify the legitimacy of a termination rationale, a court is unlikely to second-guess you, even if your judgment turns out to be incorrect after the fact.

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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 #108

The big news of the week is the U.S. Supreme Court’s decision to hear the appeal in Quon v. Arch Wireless. The issue in that case is whether a police officer had an expectation of privacy in text messages sent from his employer-owned mobile device. The court of appeals ruled for the employee earlier this year. While this case involves the constitutional privacy rights of public employees, I hold out a glimmer of hope that the Supremes will give broader insight into the rights of all employers to keep tabs on how employees are using their technology while on-the-clock. My fellow bloggers share their thoughts on this very interesting case:

• Dennis Westlind at World of Work: Supreme Court to Review Text Message Case; Primarily of Interest to Public Employers.

• Michael Fox’s Jottings By An Employer’s Lawyer: Labor and Employment Comes (Slowly?) Into the Electronic World.

• Washington DC Employment Law Update: Supreme Court Review of Quon May Provide Important Guidance for Private Employers.

• Philip Miles’s Lawffice Space: Text Message Privacy Hits SCOTUS.

• Workplace Privacy Counsel: Supreme Court Review of Quon May Provide Important Guidance for Private Employers.

• Colorado Employment Law: Supreme Court to Review Employee Privacy in Text Messages.

• Ross Runkel’s LawMemo: Text message privacy at the Supreme Court.

• Jeffrey Hirsch at the Workplace Prof Blog: Supreme Court Grants Cert in Quon Privacy Case.

On to other news of the week.

Employee Terminations

• How NOT to Call in Sick – via Mark Toth’s Manpower Employment Blawg.

• It’s NOT Just a Fantasy: Company Fires Employees for Running Fantasy Football League, For Real – from Dan Schwartz’s Connecticut Employment Law.

Wage & Hour

• Lawyers See Easy Money in Wage-and-Hour Litigation – at the HR Daily Advisor.

• Just Because an Employee is Exempt Doesn't Mean They Can't Be Paid Extra – via Overtime Advisor.

• US DOL Finds 4000 Nurses at SSM Health Center Owed One Million Dollars Over Missed Lunches – from Wage & Hour – Developments & Highlights.

• House-Approved Omnibus Spending Bill Would Significantly Boost Funding for DOL, NLRB, EEOC – by Washington DC Employment Law Update.

Discrimination

• Fight over passage of the ENDA (Employment Non-Discrimination Act) delayed until 2010 – via Sindy Warren at the Warren & Hays Blog.

• Attendance at work is an essential function of the job in most instances – from Employment Law Matters.

• EEOC Continues to Attack "No-Rehire" Policies – by New York Labor and Employment Law Report.

Social Media

• Too Much Information: Social Media Pose Risks For Employers And Employees Alike – from Hunton Labor & Employment Perspectives.

Harassment

• An Employer Cannot be an Ostrich in Response to Complaints – by Tom Crane’s San Antonio Employment Law Blog.

• $1,260,000 settles harassment claims – via Ross Runkel’s LawMemo.

• Weird Sexual Harassment Cases In the News – by Teresa Cheek at the Delaware Employment Law Blog.

• Harassment Is All About the Threshold – from Kris Dunn, The HR Capitalist.

• Why we should put filters on our work computers – via the Evil HR Lady.

Top 10…

• …Weirdest Work Stories for 2009 – linked by Minnesota Labor & Employment Law Blog.

• …Worst phrases to use at the office – from CNN.com.

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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.

AT&T sued for a BILLION dollars in a wage and hour dispute

MSNBC reports that multiple class actions have been filed against AT&T claiming that it misclassified as exempt all of its first-level managers and unlawfully deprived them of overtime pay. The lawsuits seek $1 BILLION (that’s nine zeros) in damages.

Rush Nigut’s Rush on Business has done an excellent job spotlighting the critical issues raised by these types of claims:

Naturally that kind of pie in the sky number might leave one to think, “It’s never going to happen to me, my business is much smaller and I won’t be a target.” But when you look at the fact that experts believe approximately 70 percent of businesses are out of compliance with wage and hour laws, you shouldn't be quick to shrug off the prospects of a process server knocking on your door. All it takes is one disgruntled employee … and you could find yourself in the middle of a wage and hour dispute.

Click on through to Rush’s post to read his six tips to avoid wage and hour lawsuits.

I’ve also written extensively on the dangers wage and hour compliance poses for employers:

• Is the sky falling? The reality of wage and hour lawsuits.
• Study of American working conditions presents opportunity for employers to tune up legal compliance.
• Department of Labor to step up enforcement; employers should step up self-audits.
• Make a list and check it twice – FLSA exemptions.
• Wal-Mart ordered to pay $140.5 million on overtime claim.
• Fortune Small Business Magazine: The ticking time bomb of overtime.
• Department of Labor investigations highlight important wage and hour compliance issues.
• Use a wage and hour audit to proactively head off claims.
• Wage and hour litigation hits the big time.
• Department of Labor investigations highlight important wage and hour compliance issues.

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

How to properly terminate an at-risk employee

Employees often believe that an employee’s exercise of a protected right acts as a shield to protect the employee from termination. And often they are right. That shield, however, does not insulate an employee’s  poor performance. For example, take King v. Aultman Health Foundation (Stark Cty. Ct. App. 11/30/09) [pdf].

Brianne King took three different medical leaves during her employment, plus intermittent leave under the FMLA. Following her leaves, and during her intermittent leave, she had a documented history of poor attendance:

1. Medical leave for surgery: Mar. 24 – May 5, 2003

• Feb. 2004: written warning for attendance.
• Three-day suspension for missing work from May 9 – May 12, 2004.
• May 14, 2004: written warning that her next call-off in the next four months would result in termination.

2. Medical leave for surgery: June – Aug. 2004
3. Medical leave for surgery: Feb. 27 – May 16, 2005
4. Grant of intermittent FMLA leave: Oct. 2005

• Mar. 2006: verbal warning for tardiness.
• Aug. 2006: written warning for tardiness.
• Sept. 2006: two-day suspension without pay, plus six-month probationary period, for tardiness.
• March 19, 2007: written “last chance” suspension for four tardies between Feb. 24 and Mar. 19.
• Apr. 12, 2007: Tardy again.
• Apr. 21, 2007: Again warned that another attendance issue would result in termination.
• May 8, 2007: Forgets she is scheduled to work and misses work.
• May 9, 2007: Resignation in lieu of termination.

The court of appeals upheld the trial court’s dismissal of King’s disability discrimination claim:

[King] has asserted that her inability to come to work in a timely fashion was caused by pain, nausea, fatigue, depression, and the continuing effects of her hysterectomy on her ability to care for herself. However, when [King] was confronted by her supervisors about being tardy, [she] did not ask for an accommodation for a disability, but rather offered various other reasons for her lack of punctuality. The undisputed evidence shows [King] was not terminated for her claimed disability, but rather for tardiness and poor work history. [King] was terminated due to a well-documented, poor attendance record.

The hospital prevailed in this lawsuit for three reasons:

1. King had serious attendance problems.
2. The hospital documented each and every attendance violation.
3. The hospital gave King no less than eight chances to correct her attendance problems before it asked her to resign.

I probably would have pulled the trigger sooner on the termination. Nevertheless, the fact that the hospital gave King a second, third, and even an eighth chance before it ended her employment served it well.

In disciplining an employee who has engaged in protected activity, ask yourself, “Will a judge or jury think that we gave this employee a full and fair opportunity to correct her behavior? Did she have notice that she would be terminated if her performance did not improve?” Unless you can answer yes to these questions, consider delaying the termination until you can.

Why you need a workplace technology policy

While doing some routine maintenance of its computer system, Butler Township discovered that members of its fire department – including part-time firefighter Ralph Bowman – had been accessing and downloading violent and sex-related files from the Internet on work time using Township computers. The computer records revealed that Bowman watched eight videos while at work. Seven of the videos were violent, military videos: Lions Eat Man, Hamas Militant Shot Killed, Felony Fights, Helicopter Crewman Execution, Sniper Shots, Guerillas Killed, and Terrorists Guerilla Killed. The other, called Best Girlfriend Ever, contained sexually explicit language, but was not pornographic.

The Township permitted its employees to use Township computers and other media for personal use during down time. The Township did not provide any guidance as to what types of computer usage were acceptable or appropriate, except for a Code of Ethics that instructed Township employees that they were “bound by the highest standards of morality” and should conduct themselves so as to not bring discredit to the Township.

The Township terminated Bowman for malfeasance in accessing and viewing “inappropriate materials” at the firehouse.

In Bowman v. Butler Township Bd. of Trustees (Montgomery Cty. 11/20/09) [pdf], the court of appeals reversed the termination. It reasoned that because the Code of Ethics was vague as to what computer use was permitted, and because there was no other policy to guide Bowman regarding acceptable computer use during his down time, the Township could not use the Code of Ethics as a basis for termination.

This case is an excellent example of the need for employers have a technology policy that spells out, in sufficient detail, what is and what is not acceptable use of an employer’s equipment. As Bowman points out, failing to have such a policy could leave you without a remedy against an employee who misuses technology.

Come back Tuesday when I’ll share some insights on what to think about when drafting a workplace technology policy.

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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? Recertification of FMLA leave

Asking an employee taking leave under the FMLA to recertify the need for the leave is a powerful tool employers can use to curb FMLA abuse. However, there are specific rules employers must follow to ensure that they are not the one accused of abuse.

1. 30-day rule.

Generally, an employer may request recertification no more often than once every 30 days, and only in connection with an absence by the employee. An employer can never ask for or require a second or third opinion on recertification. It must wait for the next 30-day period to request another recertification.

2. More than 30 days.

If the employee’s medical certification shows that the minimum duration of the condition is more than 30 days, an employer must wait for that minimum duration to expire before requesting a recertification.

Regardless of the minimum duration, an employer may always request a recertification of a medical condition at least once every six months in connection with an employee’s absence.

3. Less than 30 days. 

An employer may request recertification in less than 30 days if:

• The employee requests an extension of a leave; or
• Circumstances described by the previous certification have changed significantly (e.g., the duration or frequency of the absence, the nature or severity of the illness, complications); or
• The employer receives information that casts doubt upon the employee’s stated reason for the absence or the continuing validity of the certification (e.g., an employee with a knee injury playing on the company softball team). 

4. Timing.

An employer must give the employee at least 15 days to provide the recertification. The employee must meet that deadline to keep his or her FMLA leave, unless it is not practicable under the particular circumstances to do so despite the employee’s diligent, good faith efforts.

5. Content.

The employer may ask for the same information when obtaining recertification as permitted for the original certification. The employee has the same obligations to participate and cooperate in the recertification process as in the initial certification process. Importantly, as part of the information allowed to be obtained on recertification, the employer may provide the health care provider with a record of the employee’s absence pattern and ask the health care provider if the serious health condition and need for leave is consistent with such a pattern.

6. Expense.

An employer can require that the employee bear the cost of the recertification.

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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.

Truck drivers with positive drug tests should not file lawsuits … period.

Consider these facts:

• A city garbage truck driver is injured on the job.
• When he goes to the ER for treatment, a blood test reveals cocaine in his system.
• Upon returning to work following a workers’ compensation leave of absence, he agreed to attend Narcotics Anonymous meetings as a condition of his employment.
• He did not attend the meetings.
• When it was discovered that he was trying to surreptitiously tape record his follow-up conference with the city, he received a five-day suspension.

How do you think the subsequent law suit filed by this employee against the city turned out? Garofolo v. City of Fairview Park (8th Dist. 12/10/09) [PDF] has the details. The short answer (surprise) is that the employee lost:

Garofolo offers no legal basis for his argument that appellees should have ignored the disclosure of his positive drug test and that he should not have been subjected to the substance abuse program or other measures taken by appellees. We find the argument that the appellees should not have acted upon the information to be disingenuous in light of Garofolo’s safety-sensitive position and DOT requirements. Indeed, once provided with the information, Fairview Park had a clear interest in creating a safe working environment.

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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 #107

Tiger Woods

• Tiger Drives Home a Lesson: Be Careful with Voice Mails – via Mindy Chapman’s Case in Point.

• And In Celebrity News! – from Jason Morris at the EmployeeScreenIQ Blog.

• Tiger Texting – via Rob Radcliff’s Smooth Transitions.

• Tiger’s Brand Bogey – from Jonathan Littman at I Hate People...But It’s Nothing Personal.

• And now for something completely different, Shut Up Already! Tiger Woods Has Taught You Nothing – at Rehaul by Lance Haun.

Discrimination

• Christmas Decorations at Work – from The Word on Employment Law with John Phillips.

• EEOC Releases Semiannual Agenda Prioritizing GINA, Revised ADA Regulations, and a NPRM on ADEA Issues – via Washington Labor & Employment Wire.

• Is Your Organization Required to Have an Affirmative Action Plan? – answered by the New York Labor & Employment Law Report.

• The New York Times On Hiring Discrimination ... Again – via Discriminations.

• Points to ponder when filing responses to EEOC charges – from Mike Maslanka’s Work Matters.

• 9th Cir: ADAAA Is Not Retroactive – by Alaska Employment Law.

Wage & Hour & Benefits

• Working Time FLSA Class Action Hits Amazon Over Punch In/Punch Outs – by Wage & Hour Developments & Highlights.

• Perils of Having Employees Work Through Lunch – by the Overtime Advisor.

• Pharmaceutical Sales Reps Qualify for FLSA "Outside Salespeople" Exemption According to Federal Court in Arizona – by Wage & Hour Counsel.

• Questions as COBRA Assistance Comes to an End – by Jennifer Hays at the Warren & Hays Blog.

Employment Policies

• Snow Day! (Or Not) - Employers Have Flexibility on Winter Storm Policies – by Dan Schwartz at the Connecticut Employment Law Blog.

• Tips for drafting employee handbooks – via Employment Law Bits.

• Social-Media Policy Ideas – by Molly DiBianca at the Delaware Employment Law Blog.

Background Checks

• How Are Employers Using Social Networking? – answered by Mark Toth’s Manpower Employment Blawg.

• EEOC Files Discrimination Case Over Background Checks – by Nick Fishman at the EmployeeScreenIQ Blog.

• More Failures to Keep a Low Profile When Falsely Claiming Disability – via Lowering the Bar.

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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.

Ethics vs. Law: discrimination on the basis of political beliefs

Interesting article by the New York Times’s resident ethicist, Randy Cohen (from the 12/6/09 Sunday Magazine) on whether a company can ethically refuse to hire a candidate because of political views:

You may not. If candidates can do the job, bathe regularly and work well with others, you should hire them. As you note, their “politics do not affect their function.” Is it your position that only people who share your politics should be allowed to make a living?

What is unethical is not necessarily unlawful. Whether by state or federal law, Ohio employers cannot discrimination of the basis of race, color, religion, sex, military status, national origin, disability, age, ancestry, or genetic information. This list does not include political beliefs or affiliation – at least for private employers. Yet, just because something is legal does not mean it makes a good HR practice.

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

Department of Labor, and its Wage and Hour Division, set 2010 regulatory agenda

This week, the Department of Labor is hosting a series of live chats through its website. The goal is to outline and discuss the DOL’s regulatory agenda for 2010 [PDF]. Transcripts are available at http://www.dol.gov/regulations/index.htm#chats.

On Monday, Secretary of Labor Solis participated in her own chat. Her highlights:

• One of her priorities is ensuring that low income and minorities receive help from the DOL.
• New FLSA regulations on record keeping will be published in August 2010.
• WHD now has a Director of Training with a staff that has done a comprehensive review of the Wage and Hour training programs and materials. Specifically, they have developed a 12-week written course for WHD’s 250 new investigators.
• Secretary Solis and President Obama support the Employee Free Choice Act; the ball is in Congress’s court.

Yesterday, Wage and Hour Division Deputy Administrator Nancy Leppink conducted its chat. Here are the highlights:

• WHD’s regulatory agenda for 2010 includes proposed rules for child labor, non-displacement of qualified workers under service contracts, FMLA, records to be kept under the FLSA, and other amendments to the FLSA.
• WHD plans to provide additional guidance to employers on how to comply with the recent military leave amendments to the FMLA.
• WHD intends to publish a final rule under the FLSA that will clean up many of the out-dated regulations.
• Wage and Hour recently hired 250 new investigators to boost the division’s ability to ensure compliance with wage and hour laws. As the new staff are trained, the division will target industries in which vulnerable workers are employed and will work to respond to complaints in a timely manner.
• Industries that employ vulnerable workers include agriculture, restaurants, janitorial, construction, and car washes, among others.
• WHD is working on a new Public Service campaign, “We Can Help,”  to inform workers of their rights under wage and hour laws, to be rolled out in early 2010.

All in all, the chats were not all that revealing, but did reinforce that the next three years are going to be different for employers. Secretary Solis has an ambitious agenda to help low income employees, whom she perceives as “at risk.” Continue to follow this space in the coming year for updates on any new DOL regulations as they are released.

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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? Employee witness statements

Last week I discussed opposing counsel’s ability to interview your company’s current and former employees, even during active litigation. Today, I’ll discuss how you can get your hands on those witness statements without having your counsel engage in expensive discovery fights over work product issues.

Federal Rule of Civil Procedure 26(b)(3)(C) states:

Previous Statement. Any party or other person may, on request and without the required showing, obtain the person’s own previous statement about the action or its subject matter. If the request is refused, the person may move for a court order, and Rule 37(a)(5) applies to the award of expenses. A previous statement is either:

     (i) a written statement that the person has signed or otherwise adopted or approved; or

     (ii) a contemporaneous stenographic, mechanical, electrical, or other recording – or a transcription of it – that recites substantially verbatim the person's oral statement.

The catch – you have to be in federal court. Ohio’s parallel rule is limited to statements of parties only.

If you are in federal court, anyone who previously gave a written or recorded statement to an attorney has a right to receive a copy of that statement upon request. What does this rule mean for employers? It is in your best interest to maintain good relations with all current and former employees. You cannot stop an employee from talking to a plaintiff’s attorney, but you can prod that employee to request a copy of his or her statement. What do you think the likelihood is of an employee with whom you have a bad relationship helping you out?

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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.

Golfer tests limits of ADA and performance enhancing drugs

Last month, Doug Barron became the first golfer suspended by the PGA for failing a drug test. Shortly thereafter, he sued the PGA, claiming that his suspension violated the ADA. Specifically, he claimed that the PGA failed to accommodate his use of medications –  beta blockers to treat a heart condition and synthetic male hormone to treat a low testosterone count.

According to CNN.com, a federal magistrate has preliminarily rejected Barron’s claim that his low testosterone level qualifies as a disability protected by the ADA. Under the amended ADA, major life activities include “the operation of major bodily functions, including … reproductive functions.” Likely, a low testosterone count qualifies an ADA-protected disability. Thus, I would argue that a low testosterone count actually does qualify as a protected disability.

Under the new ADA, however, the issue of what qualifies as a disability will seldom be litigated. Most physical and mental impairments will qualify as disabilities. Instead, the focus of the inquiry in disability discrimination litigation will be whether the employee is qualified – whether he or she can perform the essential functions of the job with or without reasonable accommodation.

On the issue of drug testing in professional sports, I would argue that it is essential that all athletes perform on the same level without artificial enhancement. For instance, testosterone promotes muscle mass and strength and beta blockers reduce anxiety and sharpen focus. Thus, I would argue that whether an athlete’s condition qualifies as a disability is irrelevant, because he or she cannot perform there is no accommodation that would allow the taking of performance enhancers (even if used medicinally).

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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 #106

Workplace Technology Issues

• On whether emails sent by an employee to his or her attorney using an employer’s email system is protected by the attorney client privilege – compare Howard Bashman’s How Appealing to Electronic Discovery Law.

• The $1-Million Email Suit, courtesy of Roger Matus’ Death By Email.

• Sample Social-Media Guidelines, complied by Molly DiBianca at the Delaware Employment Law Blog.

• Defeating Liability For Employees' Off-Duty Internet Activity, from Workplace Privacy Counsel.

In the News

• New GAO Report on Civil Rights Enforcement During the Prior Administration, by Marcia McCormick at the Workplace Prof Blog.

• Tiger by the Tail: Employment Lessons? – via The Word on Employment Law with John Phillips.

• Employment Law Backlash, from Philip Miles’s Lawffice Space.

Wage & Hour & Benefits

• DOL Agrees: With Intermittent Leave, Enough Is Enough, from BLR’s HR Daily Advisor.

• Wanna Know a Secret? U.S. Department of Labor Updates Free Guide on Laws for Employers, by Dan Schwartz at the Connecticut Employment Law Blog.

• COBRA Subsidy Likely To Expand - Proposed Legislation Would Extend and Expand Subsidy for Former Employees, via Hunton Employment & Labor Perspectives.

• Learned Professionals-Employers Take Care, by the Overtime Advisor.

• Does your return-to-work policy run afoul of the ADA? – from Sindy Warren at the Warren & Hays Blog.

Office Holiday Parties

• Top 5 Holiday Party Tips, crafted by Mark Toth’s Manpower Employment Blawg.

• 20 Tips for Your Workplace Holiday Non-Party, from U.S. News & World Report.

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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.

Are Christmas closings discriminatory?

HR Review, a British HR website, asks the following question: “Is closing office for  Christmas ‘indirect discrimination’?” For example, would anyone doubt the discriminatory nature of a policy that offers maternity leave to new moms but denies the same to new dads? Yet, no one bats an eye when a business shuts down, with pay, for Christmas, but requires its Jewish employees to use a vacation day if they want to be paid to stay home on Yom Kippur.

I have two thoughts:

1. This question does not compare apples to apples. Businesses offer designated paid holidays as a benefit to employees. Some are religious and some are not. If a business remained open on Christmas (a hospital, for example) and gave its Christian employees the day off with pay and without requiring the use of a vacation day, employees of other faiths would have a legitimate complaint. But, granting a paid day off to all employees as a benefit is simply not a fair comparison.

2. An employer does not have to make a religious accommodation if it imposes an undue hardship. In religious discrimination cases, undue hardship is a low standard – anything more than a de minimus cost or burden. The possible accommodation – being paid for a religious holiday without using a vacation day – would impose an undue hardship. An employee should not expect to receive what would amount to an extra paid vacation day just because of a religious affiliation.

Everyone enjoy your day off in a few weeks.

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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.

Cleveland bans discrimination based on gender identity and expression

Cleveland’s city ordinances already prohibit employment discrimination based on sexual orientation. As of this week, you can add “gender identity and expression” to Cleveland’s expansive list of protected classes. Violations carry a potential $1,000 fine and 30-day jail sentence.

Cleveland’s ordinance may be foreshadowing of broader state and federal legislation, both of which would grant protected status for sexual orientation and gender identity:

• Ohio House passes bill banning sexual orientation discrimination; fight moves to Senate
• Do you know? Sexual orientation and gender identity discrimination
• ENDA Now “Top Priority” for Obama Administration (courtesy of Paul Secunda at the Workplace Prof Blog)

For now, if you are an employer located in the City of Cleveland, at a minimum you should amend your EEO and anti-discrimination policies to cover gender identity.

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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? Opposing counsel may have access to your employees during litigation

Businesses often think that once litigation is filed, their employees are off limits to the other side, absent a deposition subpoena. After all, conventional wisdom teaches that it is unethical for an attorney to communicate with someone known to be represented by an attorney without the other attorney’s consent. At least in Ohio, however, such thinking is incorrect and can lead to disastrous results.

According to Advisory Opinion 2005-03 [DOC], an opposing party is only prohibited from speaking to a small fraction of a business’s current employees. 

Communications with Current Employees

• Opposing counsel is only prohibited from communicating with corporate employees who supervise, direct or regularly consult with the corporation’s lawyer concerning the matter, or has authority to obligate the corporation with respect to the matter, or whose act or omission in connection with the matter may be imputed to the corporation for purposes of civil or criminal liability.

• Opposing counsel may always communicate without the consent of a corporation’s lawyer with any other current employees.

Communications with Former Employees

• Opposing counsel may communicate with any former employees of the corporation without notification or consent of corporate counsel.

• An attorney may not, however, communicate if a former employee is represented by his or her own counsel in the matter, or if a former employee has asked the corporation’s counsel to provide representation in the matter.

Thus, the only employees to whom an opposing attorney absolutely cannot speak are current employees whose actions can bind the company or who are actively involved in the litigation decision making. All other employees – past and present – are fair game.

Further, businesses could find themselves defending an offshoot retaliation claim if they try to interfere with an employee who wants to talk to or assist the other side.

Next Tuesday we’ll look at Federal Rule of Civil Procedure 26(b)(3)(C), which gives employers some protections via the discovery of witness statements.

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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 orders forensic examinations of defendant's hard drives to remedy discovery abuses

Although it's hard to tell from the opinion, it’s safe to assume that Bennett v. Martin (Ohio Ct. App. 11/24/09) [PDF] started out like any other run of the mill discrimination lawsuit. Then, the defendant started playing hide the ball in discovery, which, after lots of motions, led to the trial court ordering the forensic imaging of the employer’s hard drives to confirm or deny the existence of certain documents. Bennett is an excellent lesson in what can go wrong in litigation, and I commend it to your reading so that you can see how garden variety discovery disputes can quickly escalate and consume an entire case.

The bottom line for employers (and really any litigant) – pick your battles. If the court thinks you’re being dishonest with your opponent, it will give the other side latitude to figure it out. If the court thinks you’re being dishonest with it (as was the case in Bennett), then all bets are off.

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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 #105

I broken this week’s post holiday review into categories. I figured I’d make it easier for everyone to follow in their post-Turkey and pumpkin pie haze.

Technology in the Workplace

• Larry Johnson: A Twitter Termination – courtesy of Molly DiBianca at the Delaware Employment Law Blog.

• Social Networks and Employment Law: Are you Putting your Organization at Risk? [PDF] – by Peopleclick.

• Employee Privacy: What’s Your Policy? – from Sindy Warren at the Warren & Hays Blog.

• LinkedIn Recommendations - A Hot Topic Among HR Professionals, But Should It Be? – by Dan Schwartz at the Connecticut Employment Law Blog. I wrote on this issue over the summer, and have an opinion very different from Dan’s.

• Discriminatory Twist in Networking Sites Puts Recruiters in Peril – by Workforce Management.

• Fake Job Reference Services Add New Wrinkle to Screening – by Jason Morris at the IQ Blog.

Religious Discrimination

• Dress Code v. Religious Beliefs: Who wins? – via Debra Reilly’s Workplace Investigations.

• When faith collides with fashion – from Michael Maslanka’s Work Matters.

• I’ve also previously given my thoughts on this issue – Religious accommodation versus public image.

Sexual Harassment

• How Can a Sexual Harassment Investigator Tell if the Alleged Conduct was Unwelcome? and Choose Wisely When Using an Employee to Conduct Your Workplace Investigation – both from Debra Reilly’s Workplace Investigations.

• Virtual Harassment: When Online Behavior Becomes a Real-World Problem – by Brian Molinari at the Prima Facie Law Blog.

• Stare Masters: Can Co-Worker Ogling Spark a Harassment Claim? – via Mindy Chapman’s Case in Point.

Wage & Hour

• Financial Service Workers May Be Glorified “Production Workers” Who Are Entitled to Overtime -- Davis v. J.P. Morgan Chase & Co. – from Brian Van Vleck at the California Workforce Resource Blog.

• Employees Are Exempt or Non-Exempt - Not Both – by the Overtime Advisor.

• More Enforcement for Wage and Hour Violations – via Mary Keating’s Maryland Employment Law Developments.

• U.S. Department of Labor Announces (Again) Increased Wage and Hour Enforcement – via Eric Welter’s Laconic Law Blog.

Miscellaneous

• A dog eats dog world: Petsmart sues over noncompete – from Rob Radcliff’s Smooth Transitions.

• Supreme Court Looking at Taking Case to Resolve “Cat’s Paw” Issue – via the HR Lawyer’s Blog. For more on the Cat’s Paw, see EEOC settles landmark “cat’s paw” discrimination case and The “Cat’s Paw” is alive and well in the 6th Circuit -- Pro se plaintiff’s trial win affirmed by Sixth Circuit.

• Union Election Win Rate Continues Upward In 2009 - 73% Win Rate Casts Further Doubt On Need For EFCA – by Hunton Employment & Labor Perspectives.

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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.

Insurance company pulls disability benefits over Facebook photo

A Canadian woman has lost her disability benefits because of photos pasted on Facebook. Cleveland.com has the details:

A Canadian woman on sick leave for depression said Monday she would fight an insurance company's decision to cut her benefits after her agent found photos on Facebook of her vacationing, at a bar and at a party. Nathalie Blanchard said Monday she was diagnosed with major depression and was receiving monthly sick-leave benefits until payments dried up this fall. When Blanchard called her insurance provider, Manulife, to find out why, she says she was told the Facebook photos showed she was able to work.

This story raises some practical tips for employers. There is a wealth of information about employees publicly available on the internet. Having said that, such information must be accessed and used responsibly. Employers should avoid using surreptitious means to access employees’ social networking. Also, employers should guard against the use of any protected information. For example, medical information could lead to an ADA claim, regardless of whether the employee voluntarily put that information on the web for the world to see.

For more on this story, click over to the thoughts of my fellow bloggers and legal journalists:

• Lowering the Bar: Facebook Pics Prove You Aren't Disabled, Insurer Tells Depressed Woman.
• Toronto Employment Law Blog: Insurance Company to applicant; According to your Facebook photos, you don't look too depressed to work.
• Employer Law Report: Facebook Photos Prompt Termination of Long Term Disability Benefits.
• Law.com: Insurer Questions Woman’s Depression Claim After Spotting Her Party Pics on Facebook.
• ABA Journal: Depressed Woman Loses Leave Benefits After Facebook Shows Her Having Fun.

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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? H1N1 and employees’ leave rights

The Department of Labor has published two guides for employers trying to navigate H1N1 and employees’ leave and pay rights (both PDFs):

• Pandemic Flu and the Family and Medical Leave Act: Questions and Answers
• Pandemic Flu and the Fair Labor Standards Act: Questions and Answers

Neither presents earth-shattering legal information. Having said that, the Department of Labor has done a nice job compiling useful tips for employers to turn to when an employee misses work because of the H1N1. Some of the more interesting nuggets are as follows:

FMLA

• The Department of Labor urges employees who themselves have H1N1, or who have family members with H1N1, to stay home. However, the DOL takes no position on whether H1N1 is covered under the FMLA as a “serious health condition.” Employers, though, are “encouraged to support these and other community mitigation strategies and should consider flexible leave policies for their employees.”
• The FMLA does not cover leave taken by an employee to avoid exposure to the flu.
• If an employee’s child’s school is closed, the FMLA does not require leave to care for a healthy child at home.
• Federal law does not require employers to provide paid leave to employees who are absent from work because they are sick with pandemic flu, have been exposed to someone with the flu, or are caring for someone with the flu.
• An employer may require an employee who is out sick with pandemic influenza to provide a doctor’s note, submit to a medical exam, or remain symptom-free for a specified amount of time before returning to work, potentially subject to limits in the FMLA and ADA.

FLSA

• If a business temporarily closes because of H1N1, that employer is not obligated to pay non-exempt employees for any hours they do not work.
• An employer can require that an employee perform work outside of the employee’s job description to cover for an absent employee.
• An employer may encourage or require employees to telework (work from an alternative location such as home) as an infection control strategy. Employers do not have to pay the same wage for telework, unless required to do so by a collective bargaining agreement or other contract.
• Employers are not required to cover additional costs that employees may incur if they work from home (DSL line, computer, additional phone line, increased use of electricity, etc.)?

For more on H1N1 preparedness, I recommend the following earlier posts:

• Do you know? Handling employees with suspected swine flu
• Can employers require flu shots for their employees?
• EEOC chimes in on swine flu with guides on how to prepare and remain Title VII/ADA compliant

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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.

What to look for in an employment lawyer

I presented last week at a marketing group I recently joined. In briefly speaking about who I am and what I do, it got me thinking about what companies should look for when hiring employment counsel. Here are my thoughts.

1. Experience and knowledge in the area. When you need to terminate an employee, or when an employee lodges a harassment complaint, you want to be able to pick up the phone and receive immediate advice about how to handle the situation. You don’t want your employment attorney to tell you that he or she will have to look into the situation and get back to you in a week with an answer. Employment law complex, ever-changing, and difficult to dabble in. An investment in someone who knows the area is one of the the most important HR decisions you can make for your business.

2. Willingness to get to know your business. There are legal decisions and business decisions, and the latter will always influence the former. Your counsel cannot provide sound legal advice without putting in the time and effort to know your business and its operations.

3. Proactive, not reactive. There is nothing businesses like less than spending money on lawyers. Having said that, employers are often better off spending a few thousand dollars spotting issues before they become problems than spending many hundreds of thousands of dollars fixing problems later. Your lawyer should be counseling you in this direction.

4. Demonstrated track record of trying employment cases. The best way to get a fair result out of a case is to have a lawyer who has actually tried employment cases. Litigation often devolves into a high stakes game of chicken. If your attorney is not comfortable in front of a jury, it becomes increasingly difficult not to blink first.

WIRTW #104

This week’s review starts with a bunch of recent reports and statistics that shed some light on employment practices:

• Paul Secunda, at the Workplace Prof Blog, discusses a recent General Accounting Office study that “many employers do not report workplace injuries and illnesses for fear of increasing their workers’ compensation costs or hurting their chances of winning contracts.”

• The Washington DC Employment Law Update, on the EEOC’s Performance and Accountability Report FY 2009 [PDF]. What’s more interesting to me than the fact that the EEOC had its 2nd busiest year ever, is that it currently has a backlog of 85,768 pending charges. That number explains why you’re still waiting for a determination 6 or 9 months after you’ve submitted your position statement.

• Mark Toth’s Manpower Employment Blawg shares the latest jury verdict research in employment cases. 2 key stats – employers have the lowest win rate in discrimination cases in a decade (39%), and the median settlement amount jumped 20% last year, to $90,000.

David Yamada’s Minding the Workplace shares his most recent research on workplace bullying. Meanwhile, Joel Stashenko, writing at the New York Law Journal, shares a recent New York State case concerning a workplace bullying club.

H1N1 continues to dominate the headlines. Bill Allen, at the Washington Labor & Employment Wire, digests some recently introduced paid sick leave legislation that is intended to help employees cope with H1N1, and Steve Bruce, at the BLR HR Daily Advisor, thinks that the ADA will limit some of the questions you can ask employees about their current health (including whether they have the swine flu).

This week also brings a couple of really good posts on social media: Molly DiBianca, at the Delaware Employment Law Blog, shares her recent presentation on social media and hiring, and Stephanie Thomas cautions that using social networking sites for recruiting could lead to disparate impact discrimination claims because of the demographics of their typical user.

In other background check news, FYIscreening.com comments on the legality of DNA tests for hiring decisions (using DNA for any employment decision is now illegal), and Nolo’s Employment Law Blog discusses whether bankruptcy is a permissible factor in a hiring decision.

In other news about genetic testing, the FMLA Blog has an excellent summary of the impact of the Genetic Information Nondiscrimination Act on FMLA medical certifications.

The EFCA Report has a very thoughtful take on the constitutionality of the proposed Employee Free Choice Act.

Michael Maslanka’s Work Matters, on the propriety of zero tolerance work rules.

Christopher McKinney’s HR Lawyer’s Blog, on employment decisions based on conduct outside of the workplace.

Sindy Warren, at the Warren & Hays Blog, on family responsibility discrimination.

Melanie McClure, at Arkansas Employment Law, on pregnancy as a disability under the recently amended ADA.

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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.

OSHA offers Black Friday guidance for retailers

Planning to hit next week’s Black Friday sales? Hoping to avoid being trampled like a Pamplona encierro? Luckily for you, our Department of Labor has come to your rescue. OSHA has release a fact sheet on Crowd Control Safety Tips For Retailers [PDF]. According to the Fact Sheet:

OSHA has prepared these guidelines to help employers and store owners avoid injuries during the holiday shopping season, or other events where large crowds may gather.

OSHA’s tips include:

• Having trained security personnel or police officers on site.
• Setting up barricades or rope lines for pedestrians and crowd control well in advance of customers arriving at the store.
• Making sure that barricades are set up so that the customers’ line does not start right at the entrance of the store.
• Preparing an emergency plan that addresses potential dangers.
• Having security personnel or customer service representatives explain approach and entrance procedures to the arriving public.
• Not allowing additional customers to enter the store when it reaches its maximum occupancy level and not blocking or locking exit doors.

Hopefully management of the store you’re visiting for that $99 HDTV looks at OSHA’s website. Happy and safe shopping.

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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.