WIRTW #110

While the tragedy in Haiti has pushed Jay and Conan off the front page, NBC’s late night debacle continues to be one of the week’s biggest stories. My fellow bloggers share their thoughts on the myriad employment law issues this story raises:

• Can Conan Compete in Pennsylvania? – via Philip Miles’s Lawffice Space.

• Why FOX can hire Conan as soon as he leaves NBC and How Conan O'Brien powned NBC – from Jay Shepherd’s Gruntled Employees.

• What Can Employers Learn From Conan O’Brien and NBC? – by William Bowser at Delaware Employment Law.

Other issues covered this week:

Race Discrimination

• Harry Reid Teaches Unintentional Lesson About Racial Language? – from The Word on Employment Law with John Phillips.

• Is Reid racist? (And what we can learn from the recent media frenzy) – from Sindy Warren at the recently redesigned Warren & Hays Employment Law Blog.

• U of Iowa Study Shows Race Not an Important Factor in Hiring NFL Head Coaches – via Patrick Smith’s Iowa Employment Law.

• Forcing Managers to Interview Minority Candidates - Necessary or Pure Bureaucracy? – by Kris Dunn, The HR Capitalist.

Wage & Hour

• Paid Time Off – A Costly Mistake? How Does Your Company Stack Up? – at BLR’s HR Daily Advisor.

• How much influence must someone have in the firing process to qualify as exempt from overtime under the executive exemption to the Fair Labor Standards Act rules? – at the Overtime Advisor.

• EBSA Releases Updated Model COBRA Subsidy Notices – from the Washington DC Employment Law Update.

• Top 10 Wage-and-Hour Settlements Tally 44% More in 2009 – from the ABA Journal.

• Two Steps to Insure You Are Paying Your Employees Correctly – by Marylee Abrams at Minnesota Labor & Employment Law.

Harassment

• What's the Difference Between a Sexual Harassment Investigation and a Sexual Discrimination Investigation? – at Debra Reilly’s Workplace Investigations.

• Eye Witness Testimony is Often Inaccurate – at Tom Crane’s San Antonio Employment Law.

Finally, two follow-ups to earlier posts of mine.

• LaborPains.org reports that AFL-CIO President Richard Trumka is predicting that the Employee Free Choice Act will pass by March. His statement is the exact opposite of my prediction on this same issue.

• The Evil HR Lady asks whether it is legal not to hire someone because she is the sister of a former employee that did not leave on good terms. Associational retaliation – that is, taking an action against someone because a close relation engaged in protected activity – is not illegal in the 6th Circuit. The Supreme Court, however, is considering reviewing this issue, so it is worth keeping an eye on it.

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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.

Bills seeks to prohibit use of credit information in employment

Ohio House Bill 340 seeks to make it unlawful for an employer to discriminate on the basis of credit history. If enacted, it would amend Ohio’s anti-discrimination law to include the following:

It shall be an unlawful discriminatory practice for an employer to use a person's credit rating or score or consumer credit history as a factor in making decisions regarding that person's employment, including hiring, tenure, terms, conditions, or privileges of employment, or any matter directly or indirectly related to employment.

Unlike the federal bankruptcy discrimination statute we looked at on Tuesday, this law would prohibit any use of credit information in employment. While there is no doubt that many have been adversely affected by the ongoing economic crisis, this statute is an overreaction. There exist lots of valid reasons to use consumer credit as one factor in the hiring matrix. For example, if you can conclude that an applicant does not, for whatever reason, manage his personal finances properly, do you want to hire him to handle your business’s finances as its controller or have access to money in your cash register?

The federal Fair Credit Reporting Act already provides protections to consumers in how employers obtain their credit information, and prohibit access without consent. We do not need additional protection to limit how employers use this lawfully obtained information, especially when this information can give employers insight to an employee’s sense of personal responsibility.

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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.

To taking the high road and not burning bridges…

Conan O’Brien has every right to flat out pissed at NBC. They kept him tethered to his 12:35 a.m. slot for five years by promising him The Tonight Show, and then pulled the plug after a short seven months because of their own programming ineptitude. The following is Conan’s witty, yet graceful, response to his bosses at NBC (via MSNBC.com):

People of Earth:

In the last few days, I’ve been getting a lot of sympathy calls, and I want to start by making it clear that no one should waste a second feeling sorry for me. For 17 years, I’ve been getting paid to do what I love most and, in a world with real problems, I’ve been absurdly lucky. That said, I’ve been suddenly put in a very public predicament and my bosses are demanding an immediate decision.

Six years ago, I signed a contract with NBC to take over The Tonight Show in June of 2009. Like a lot of us, I grew up watching Johnny Carson every night and the chance to one day sit in that chair has meant everything to me. I worked long and hard to get that opportunity, passed up far more lucrative offers, and since 2004 I have spent literally hundreds of hours thinking of ways to extend the franchise long into the future. It was my mistaken belief that, like my predecessor, I would have the benefit of some time and, just as important, some degree of ratings support from the prime-time schedule. Building a lasting audience at 11:30 is impossible without both.

But sadly, we were never given that chance. After only seven months, with my Tonight Show in its infancy, NBC has decided to react to their terrible difficulties in prime-time by making a change in their long-established late night schedule.

Last Thursday, NBC executives told me they intended to move the Tonight Show to 12:05 to accommodate the Jay Leno Show at 11:35. For 60 years the Tonight Show has aired immediately following the late local news. I sincerely believe that delaying the Tonight Show into the next day to accommodate another comedy program will seriously damage what I consider to be the greatest franchise in the history of broadcasting. The Tonight Show at 12:05 simply isn’t the Tonight Show. Also, if I accept this move I will be knocking the Late Night show, which I inherited from David Letterman and passed on to Jimmy Fallon, out of its long-held time slot. That would hurt the other NBC franchise that I love, and it would be unfair to Jimmy.

So it has come to this: I cannot express in words how much I enjoy hosting this program and what an enormous personal disappointment it is for me to consider losing it. My staff and I have worked unbelievably hard and we are very proud of our contribution to the legacy of The Tonight Show. But I cannot participate in what I honestly believe is its destruction. Some people will make the argument that with DVRs and the Internet a time slot doesn’t matter. But with the Tonight Show, I believe nothing could matter more.

There has been speculation about my going to another network but, to set the record straight, I currently have no other offer and honestly have no idea what happens next. My hope is that NBC and I can resolve this quickly so that my staff, crew, and I can do a show we can be proud of, for a company that values our work.

Have a great day and, for the record, I am truly sorry about my hair; it’s always been that way.

Yours,

Conan

Do you think NBC will be more or less likely to work with Conan to amicably resolve this dispute because of how he is handling himself? Conan is much better served by issuing this respectful, witty, yet pointed statement, than having his lawyers (and trust me, he has lawyers advising him every step of the way) threaten to unleash unholy hell upon NBC. Kudos for Conan for taking the high road and explaining why he is making his decision without unnecessarily skewering the corporate executives whom he must believe screwed him.

Employees leave businesses each and every day, yet many believe that it is acceptable to burn bridges as they run from one employer to another. For example, it never ceases to amaze me how many employees think its better for them to open a competing shop and poach customers instead of sitting down with their former employer to work out the terms of an existing noncompetition agreement. Employees are best served following Conan’s example in exiting a business – even if they have to swallow a little bit of pride and take the high 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.

Do you know? Bankruptcy discrimination

The economy will continue to dominate the headlines in 2010. And, as the economy continues to struggle to rebound, it is likely that your business will have employees who have filed bankruptcy. The question is what do you do with this information.

Do you know that bankruptcy discrimination is unlawful under the Bankruptcy Code.

No private employer may terminate the employment of, or discriminate with respect to employment against, an individual who is or has been a debtor under this title, a debtor or bankrupt under the Bankruptcy Act, or an individual associated with such debtor or bankrupt, solely because such debtor or bankrupt – (1) is or has been a debtor under this title or a debtor or bankrupt under the Bankruptcy Act; (2) has been insolvent before the commencement of a case under this title or during the case but before the grant or denial of a discharge; or (3) has not paid a debt that is dischargeable in a case under this title or that was discharged under the Bankruptcy Act.

In other words, federal law prohibits an employer from terminating an employee or taking an other adverse action against an employee because that employee filed bankruptcy or is associated with someone else who filed bankruptcy.

Three key points to make about this statute:

1. With one exception, every court that has applied this statute has found that it only applies to termination decisions – not hiring decisions. Thus, employers are reasonably safe taking a bankruptcy into consideration when making a hiring decision.

2. The Fair Credit Reporting Act still applies to how employers obtain employee credit information from third parties, including information about bankruptcies. This law only impacts what employers do with the information once they get it.

3. Unlike Title VII, this statute is narrowly written to provide that the bankruptcy must be the sole reason for the adverse action before liability attaches. This is a high standard for a plaintiff to meet, and perhaps explains why we see so few of these cases.

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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.

Something wicked this way comes – Congress’s 2010 employment law agenda

If political pundits are to be believed, the Democrats’ super-majority will go the way of the dodo in November’s mid-term elections. Without a 60-member super-majority, it will be that much more difficult for the current administration to make good on many of 2008’s campaign promises, which makes this year key for Democratic plans to revamp our employment laws. The Dems have an ambitious employment law slate. The following are the key employment law initiatives pending in Congress, ranked in order of the likelihood of passage this year, along with a discussion of what this will mean for your business if each passes (the full text of the legislation is hyperlinked).

1. Employment Non-Discrimination Act – ENDA would prohibit employers from discriminating or retaliating against actual or perceived gay, bisexual, or transgender employees or applicants. If this bill passes, you will have to cease discriminating on the basis of these classes, re-write your EEO policies, train your managers and supervisors to be more aware of issues that affect gay, bisexual, and transgendered people, and include these issues in all EEO and harassment training.

2. Protecting Older Workers Against Discrimination Act – In Gross v. FBL Fin. Servs., the U.S. Supreme Court held that there is no such animal as a mixed motive under the ADEA, and that to succeed on a federal disparate treatment age discrimination claim, a plaintiff must prove that age was the only cause of the challenged action. This legislation would overturn this case, and permit a plaintiff to establish age discrimination by demonstrating that age was a “motivating factor” for the adverse action. This bill will make it easier for plaintiffs to prove age discrimination, and make it more difficult for employers to defeat age claim on summary judgment. The result will be higher defense costs, more jury trials, and increased settlement values for federal age claims.

3. Healthy Families Act – The swine flu pandemic helped employee advocates prove their point that America’s workers’ need greater access to paid sick leave. This bill would require businesses with 15 or more employees to prove employees seven days of paid sick leave per year. If this bill passes, employers will have to rewrite employee leave policies to provide the required sick leave.

4. FMLA amendments: Family and Medical Leave Enhancement Act and Family Fairness Act – The former would expand the coverage of the FMLA to employers with 25 or more employees, and would expand the reasons for FMLA leave to include a child’s grandchild’s educational or activities extracurricular, or a child’s or elderly relative’s medical appointments. The latter would expand the FMLA’s coverage to include part-time employees. Passage of either of these bills would require employers to revisit and rewrite FMLA leave policies. Along with the Healthy Families Act, these amendments would further limit the ability of employers to manage and schedule employees’ working time.

5. Arbitration Fairness Act – The recent extension of the federal COBRA subsidy contained a provision that prohibits arbitration of Title VII claims for federal contractors who receive more than $1 million. This legislation would void all pre-dispute arbitration agreements that mandate arbitration of employment disputes, except for those contained in collective bargaining agreements. The enactment of this bill would require litigation of all employment disputes (a result, by the way, that I am not entirely opposed to).

6. Paycheck Fairness Act – This bill would provide for compensatory and punitive damages for FLSA violations, and would shift the burden in Equal Pay cases to employers to prove that differences in pay are sex-based and are related to job performance. Wage and hour claims already are the most difficult for employers to handle. This legislation would increase this difficulty, and further underscore employers’ need to be proactively vigilant with wage and hour compliance.

7. Employee Free Choice Act – Enough’s been written about the EFCA. If you are unaware of it, the EFCA would eliminate secret ballot elections for union representation and provide for binding arbitration for first-contract collective bargaining agreements. Next to President Obama’s universal health care, the EFCA is the most controversial legislation the Democrats are putting forth. Because of this controversy, and the hits they have taken during the health care debate, I do not think the EFCA will be pushed this year. And, without a big push from its supporters, I don’t see it becoming law.

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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 #109

Because of how the holidays fell this year, it’s been a few weeks since I’ve been able to recap what else is happening in the L&E Blawgosphere. Here’s what everyone missed.

• Make a New Year's Resolution to Review Your Anti-Harassment Policies – from New York Labor and Employment Law Report.

• EEOC Warns about Background Checks – via employeescreenIQ Blog.

• Senator Dodd's Legacy With Employers Is Clear: Family and Medical Leave Act – from Dan Schwartz’s Connecticut Employment Law.

• Paid Suspensions: You Don't Use Them Unless You're Pretty Sure They're Not Coming Back – from Kris Dunn, The HR Capitalist.

• No Right to Representation for Accused Nonunion Employees in Workplace Investigations-But for How Long? – via Debra Reilly’s Workplace Investigations Blog.

• Summary Judgment: Myths and Realities – at Patrick Smith’s Iowa Employment Law.

• Why the Philadelphia Eagles (Still) Need a Social-Media Policy – from Molly DiBianca at Delaware Employment Law.

• Recession Litigation Takes Off – via The Word on Employment Law with John Phillips.

• Preliminary Injunction Barring Retaliation Offers a Stern Reminder to Employers – from WorkplaceHorizons.

• ‘Tis the season (for seasonal affective disorder, that is) – from Sindy Warren at the Warren & Hays Employment Law Blog.

• Paying Exempt Employees Who Serve Jury Duty – from the Overtime Advisor.

• Do ‘Team Leaders’ Have the Same Harassment-Reporting Duties as Supervisors? – from Mindy Chapman’s Case In Point.

• Leave of absence taken in order to recover from a disability is not necessarily a “reasonable accommodation” under the ADA – from Employment Law Matters.

• Chart of EEOC Charges 1997-2009 – via Philip Miles’s Lawffice Space.

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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 termination is not always a termination when the FMLA is involved

On December 5, 2002, James Randolph suffered a severe episode of depression, blacked out, and failed to report for work. Because December 5 was Randolph’s last day of probation for prior attendance violations, his employer terminated him. When Randolph awoke from his blackout, he discovered a voicemail message on his cell phone from his supervisor terminating him. With that discovery, Randolph had a break-down, abandoned his plans to call work to explain his absence, aborted a trip to his doctor, and drove to his mother’s house. It was his mother who, late that night, spoke to the same supervisor, stating that Randolph was having a nervous breakdown and suffering from a recurring condition that warranted medical leave. Randolph had a similar conversation the following day with the personnel department, but his employer refused to reverse its termination decision.

In Randolph v. Grange Mutual Casualty Co. (Franklin Cty. 12/22/09) [pdf], the court of appeals reversed the trial court dismissal of Randolph’s FMLA claim, and concluded that a jury issue existed on whether the company interfered with Randolph’s attempt to take unforeseeable FMLA leave on December 5. Under the FMLA, “[w]hen the approximate timing of the need for leave is not foreseeable, an employee should give notice to the employer of the need for FMLA leave as soon as practicable under the facts and circumstances of the particular case.”

Grange argued that Randolph did not provide notice of his need for FMLA leave as soon as practicable on December 5, citing to the nearly 9-hour gap between when he awoke from his blackout and when his mother finally contacted his supervisor. The appellate court rejected that argument, concluding that it should be up to jury to conclude whether Randolph’s fragile emotional state excused him from not contacting his employer upon coming to. In other words, what is “as soon as practicable” is a fact question, not a legal question.

Employees’ medical issues should raise a bunch of flags for employers, who must proceed with caution whenever taking action against such an employee. As the Randolph case points out, this caution could even extend to rescinding a termination in the right circumstances.

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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.

Repeat after me – Don’t bring guns to work

Driving into work this morning, I listened to a legitimate debate over whether the NBA should suspend Gilbert Arenas and his teammate, Javaris Crittenton, for pulling guns on each other during a late-2009 locker room confrontation. While a D.C. grand jury considers whether to indict Arenas, he tweets that he is the new John Wayne.

There is simply no excuse that an employee can make for this level of egregious misconduct. Arenas claims that he was joking when invited Crittenton to choose one of three guns to settle their gambling debt disagreement, but that does not even come close to excusing the misconduct. Yet, the media is having a legitimate debate over whether the NBA should fine Arenas, suspend him, or wait for the criminal justice system to have its say.

Let me make this real simple for everyone. If an employee brings a gun into your workplace, that employee should be fired, period. The fact that we can even have a discussion over the fate of Gilbert Arenas underscores the point that the world in which professional athletes live and work is not the same as ours.

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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? An employee’s (lack of) right to representation at an investigatory interviews or disciplinary meeting

Yesterday I discussed the illegality of firing an at-will employee for consulting with an attorney. Despite an employee’s right to talk to a lawyer about issues going on in your workplace, non-union employees do not have a right to representation at investigatory interviews or disciplinary meetings. In a union setting, rank-and-file employees enjoy what are called Weingarten Rights – the right to union representation at these encounters.

Those same rights do not extend to a non-union setting. In IBM Corp. (June 9, 2004) [pdf], the National Labor Relations Board concluded that “the right of an employee to a coworker’s presence in the absence of a union is outweighed by an employer’s right to conduct prompt, efficient, thorough, and confidential workplace investigations.” While the holding only mentioned a coworker representative, the employer had denied the employee’s request for a coworker or an attorney to be present.

It is important to note, however, that the federal courts and the NLRB have gone back and forth on this issue over the years, and that IBM was a tight 3-2 decision of a Bush-appointed NLRB. Even the IBM majority recognized that one could reasonably interpret the National Labor Relations Act to reach the opposite conclusion. Because President Obama has already appointed a new Chairperson, and will fill three other vacancies on the NLRB, there is a good chance this rule will change if the issue makes its way back to D.C. in the next three years.

For now, employers are well within their rights to prohibit employees from having representation during investigatory interviews or disciplinary meetings.

Lessons from (a) Leach – retaliation for talking to an attorney is a no-no

One of big stories that broke while I was off last week was the firing of Texas Tech head football coach Mike Leach. The university initially suspended Leech after a player accused him of locking him in a closet following a concussion. The school later changed the suspension to a termination after Leach filed a lawsuit seeking a restraining order to allow him to coach in the team’s bowl game.

In Ohio, Texas Tech’s actions could lead to a wrongful discharge claim, provided that the employee is at-will. Ohio law does not allow an at-will employee to be fired solely for consulting an attorney. Ohio law also does not allow an employee to be fired for filing a lawsuit. While an at-will employee generally can be fired for any reason or no reason, an exception exists when the termination jeopardizes a clear public policy. Access to legal services and access to the courts are such public policies.

What does this mean for employers? Simply that you cannot terminate an employee who you suspect may be consulting with counsel. These employees are protected as if they had come to you directly with a complaint about harassment or discrimination, or engaged in any other protected activity.

Come back tomorrow as we take this question to the next level, and answer the question of what happens when an employee asks to have counsel present at a disciplinary or termination meeting.

Top 10 Labor & Employment Law Stories of 2009: Numbers 2 and 1

2. The Economy. This past year brought us the worst recession this country has seen in nearly 80 years. It should not surprise anyone that as the economy sinks, the number of lawsuits brought by employees goes up. Workers considered the ethics of layoffs, while businesses thought up creative alternatives (furloughs and reduced work schedules) to reducing headcounts.

1. Social Media. 2009 was the year that social media exploded onto our cultural consciousness. Facebook has enough members to be the 4th largest country in the world, and Twitter (follow me @jonhyman) synthesized thoughts down to 140 characters. If you don’t think you’re employees are Friending each other or tweeting about your business, you are either naive or have ludites for employees. For more information about the impact of social media on your business and your employees, check out the following from this year:

• Do you know? Facebook and Twitter and blogs, oh my! What is social networking and why should you care?
• Drafting a social networking policy: 7 considerations
• Is LinkedIn a risk for employers?
• Employees’ social networking continues to confound employers
• Companies are banning social networking. Should you?
• Textual harassment
• Googling job applicants

There you have it – the top 10 labor and employment stories of the past year. Everyone have a safe and happy new year. I’ll be back on January 4 with a peak at what I think will be the 5 biggest stories to follow in 2010.

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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 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.