WIRTW #134

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Here’s what I read this week:

Discrimination

• When talking about disabilities, put people first – from Stephen Meyer at the HR Cafe

• Sometimes, the equal opportunity jerk defense prevails – from Sindy Warren at the Warren & Hays Employment Law Blog

• Disgruntlement – from Charles Sullivan at the Workplace Prof Blog

• Employee’s Fetus was Creating a Negative Energy Field in the Work Place – from Philip Miles’s Lawffice Space

• How To Screw Up A Termination Case And Pay Big Money! – from Minnesota Labor & Employment Law Blog

• Fitness-for-Duty Exams: When Can They Be Used? – from Mindy Chapman’s Case in Point

• Age is Just a State of Mind: At Least I Think So Because Today Is My Birthday – from Michael Haberman’s HR Observations

Social Media

• Indiana Jurors Instructed Not to “Talk” About the Case on Social Networking Sites – from Molly DiBianca’s Going Paperless

• How to Increase the Likelihood Employees will Follow Your Social Media Policy – from Defending The Digital Workplace

• Facebook Posts As Evidence? – from Lawyerist

Wage & Hour

• The Importance of Clear, Accurate Notices – from FMLA Insights

• Who’s The Bimbo Here? Another Class Action Focusing On Independent Contractor – from Wage & Hour - Development & Highlights

Miscellaneous

• The Top 10 Worst Fictional Bosses – from Alanah Throop (Hat tip to Bob Sutton’s Work Matters)

• Supreme Court recap: Employment Law – from LawMemo Employment Law Blog

• On the Road Again: What State Cell-Phone Bans Mean for Employers – from Adria Martinelli at the Delaware Employment Law Blog

• The Importance of Follow Through: More Lessons from Wal-Mart – from Stephanie Thomas’s The Proactive Employer

• Would You Want to Know About a Triple Murder Charge on an Employment Background Check? – from Nick Fishman at employeescreenIQ Blog

• “We Will Not Threaten to Kill You” – The Problem with NLRB Enforcement – from Work in Progress

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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 LeBron James teaches us about employee retention

I'm about to make a startling confession -- I could care less if LeBron James signs with the Cavs, Knicks, Bulls, Heat, or becomes the first NBA player in space. It doesn't affect my life one iota (other than the latter outcomes exponentially increasing the availability of my firm's Cavs tickets, at which point I wouldn't want them anyway). Frankly, I'm disgusted by the way King James has handled himself over the past several weeks, waiting for every media outlet and NBA fan to genuflect before him hoping to catch any hint at his impending choice. Our country's southern coastline is an ecological disaster, and we treat the contract choice of someone who plays a game for a living as the most important story of the decade.

Tonights primetime announcement of his team-of-choice on ESPN takes the cake. It is shameless PR for a player that is in love with his own sense of self-importance. Think back 15 years. There was no bigger sports story than MJ's return from baseball to the Bulls.  Yet, he made his announcement with no press conferences, no media circuses, and certainly no hour-long ESPN specials -- just a simple two-word press release: "I'm back." And yes, I know that 2010 is a whole lot different than 1995 in terms of the immediacy of news and the cult of celebrity. But, class is class whether its 1995, 2010, or 2110. Some people have it, and some are proving that they don't.

The LeBron circus leads me to this thought. Yesterday, at the blog of the Harvard Business Review, Sharon Daniels posted Retaining a Workforce That Wants to Quit. Ms. Daniels shares these stats:

• In each of the past three months, more employees quit their jobs than were terminated.
• The cost of replacing an employee is estimated at up to 250% of annual salary.
• Approximately one in every four employees plan to leave their jobs within a year. 

She correctly concludes that the three biggest reasons employees leave jobs -- even in a down economy and tight job market -- are a lack of growth opportunities, dissatisfaction with compensation, and employees feeling their contributions aren't being recognized. As for employers:

Regrettably, too many managers unwittingly encourage employees to walk out because they regard them as replaceable cogs in a wheel. The key to retaining valued employees is to manage them person-to-person rather than with one-size-fits-all management. Every employee marches to a different drummer; successful managers don't make them parade in lockstep.

In other words, your retention efforts have to be personalized. One more thought -- your organization need to have a back-up plan in the event your LeBron leaves. The Cavs have none, and are facing years of obscurity and mediocrity if LeBron chooses Miami (as is now being reported).

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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.

2nd Circuit issues groundbreaking ruling on sales reps and overtime payments

I’ve written a lot in the past about FLSA exemptions, particularly the administrative exemption and the outside sales exemption.

Yesterday, the 2nd Circuit issued a landmark ruling reconciling these two exemptions in the context of pharmaceutical sales reps. In In re Novartis Wage & Hour Litigation [pdf], the court was faced with the claims of approximately 2,500 Novartis reps who claim they are owed back overtime. Novartis claims it did not have to pay overtime to this class of employees, either because they qualified as exempt outsides sales people or exempt administrative professionals. The court disagreed.

The 33-page opinion is a must-read for any business that employs salespeople and pays them as exempt. The highlights:

Outside sales exemption: The sales reps do not qualify for the outside sales exemption because they do not actually sell any products. Instead, in their brief sales calls on physicians, they merely promote their employer’s product. The physician cannot neither buy directly from the rep, not commit to making a purchase:

In sum, where the employee promotes a pharmaceutical product to a physician but can transfer to the physician nothing more than free samples and cannot lawfully transfer ownership of any quantity of the drug in exchange for anything of value, cannot lawfully take an order for its purchase, and cannot  lawfully even obtain from the physician a binding commitment to prescribe it, we conclude that … the employee has not in any sense … made a sale.

Administrative employee exemption: The sales reps do not qualify for the administrative employee exemption because their jobs lack the exercise of discretion and independent judgment. Specifically, the court pointed to the reps’ lack of any role in planning marketing strategies or formulating the core messages delivered to doctors, inability to deviate from the promotional core messages or to answer any questions for which they have not been scripted, and quotas for doctors’ visits, sales pitches, and promotional events.

Three things about this opinion stand out to me:

1. Novartis has taken an absolute beating this summer. As Dan Schwartz at Connecticut Employment Law Blog points out, it was only seven weeks ago that a jury tagged the pharmaceutical company for a quarter-billion dollars in a sex discrimination lawsuit brought by female sales reps. Now, pending a reversal by the full 2nd Circuit or the Supreme Court, it is going to be on the hook for an untold amount of back overtime to another group of sales reps.

2. If your business employs salespeople, this opinion has the potential to dramatically alter how you pay them. At a minimum, you should be retaining employment counsel to review—and potentially overhaul—the classifications of your employees.

3. The Department of Labor is proving itself to be a formidable ally of the worker on the issue of FLSA exemptions. In March, it issued its game-changing Administrator’s Interpretation in which it pronounced, for the first time, that mortgage loan officers are generally non-exempt positions. In this case (as reported by Bloomberg News), the DOL submitted a brief in supporting the sales rep’s position. Your business should be looking at employees’ FLSA classifications with the same critical eye as the DOL to avoid potential problems down the road.

[Hat tip: Howard Bashman’s How Appealing]

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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.

The dark side of discrimination litigation

The San Francisco Chronicle reports that a jury awarded a former applicant for a job a Lucasfilm $113,800 in damages on a pregnancy discrimination claim. The jury concluded that the media company withdrew its job offer to Julie Veronese after she disclosed her pregnancy.

This case proves two important points about discrimination litigation:

1. The smoking-gun piece of evidence in the case was an email Veronese's supervisor-to-be in which she expressed concern about Veronese's ability to do the job while pregnant. This case illustrates the dangers of email and proves the point that if you should not put in an email what you do not want shown to a jury or published in the newspaper.

2. Veronese's attorney is reported as saying that she will seek $1.2 million in attorney's fees from Lucasfilm. While the number is stagging, what is more staggering is that one can collect ten-fold in attorney's fees than what she recovered as damages in the actual litigation. Many claims carry risk for damages, and a six-figure verdict is nothing to sneeze at. The real risk in many discrimination lawsuits, however, is the attorney's fees that a successful plaintiff can recover. The risk of a fee award must play into the exposure calculus in strategizing the defense of any discrimination claim. Failing to take both the likelihood of a fee award and the potential amount of that award into account very early on in litigation could lead to an expensive surprise at the end of the case.

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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 #133

Jeffrey Hirsch at the Workplace Prof Blog reports that the NLRB has announced its plan to handle some of the nearly 600 cases invalidated by the Supreme Court in New Process Steel. According to Professor Hirsch:

[T]he Board is addressing the cases currently pending in court—not the cases already decided in court, cases in which the losing party complied with the NLRB order, or cases that may be brought to court but haven’t yet. As expected, the Board will rehear these pending cases with a three-member panel that will include Chairwoman Liebman and Member Schaumber, who were on the original two-member panel. This makes sense, as it means that only one member will have to start from scratch on these cases.

The story of the week, however, comes via OnPointNews. I’ll let the title speak for itself. You’ll have to click over for the details – Bias Suit Claims New Age Boss Fired Woman for Fetus.

Like most of America, I’m off on Monday, enjoying the unofficial 4th of July. I’ll be back with fresh content on Tuesday. In the meantime, enjoy what I read this week:

HR

• Anti-nepotism policies: implement and exercise with caution – from Donna Seale’s Human Rights in the Workplace

• When a Storm Hits, What's an Employer to Do In Connecticut? – from Dan Schwartz’s Connecticut Employment Law Blog

• Top 10 Things I Learned as a Summer Intern – from KnowHR Blog

Wage & Hour

• BP Capping Wages for Recovery Workers at $200/Day – from Work in Progress

• No Wonder this Job is So Hard: Contradictory Messages From the Government – from Michael Haberman’s HR Observations

• DOL Testimony Regarding The Employment Misclassification Prevention Act And Misclassification Enforcement Efforts – from Overtime Advisor

• He Shoots … and Misses! Does the World Cup Invite FMLA Abuse? – from FMLA Insights

Discrimination

• Protecting yourself from age discrimination claims – from Employment Law Bits

• New York cop’s $80,000 bias award – from Walter Olson’s Overlawyered

• Educational requirements can be discriminatory, according to the EEOC – from Sindy Warren at the Warren & Hays Employment Law Blog

• Still No GINA Regs, But New Website on the Basics – from Delaware Employment Law Blog

• The Fourth Circuit Undercuts the “Equal Opportunity Jerk” Defense – from Maryland Employment Law Developments

Litigation

• Is Your Document Retention the Stuff of Nightmares? – from Stephanie Thomas at Compensation Cafe

• Discovery: Who to depose—and how to get ready – from What About Clients?

• Opening Statement? We’ve got an app for that – from Deliberations

Whistleblowing

• Financial Reform Bill Contains Several Provisions Impacting the Workplace – from Washington D.C. Employment Law Update

• SOX Whistleblower Must Actually Believe Employer’s Conduct Was Illegal, Says Eleventh Circuit – from Florida Employment Law Blog

And, finally, since I live in Cleveland and cannot escape the circus that is LeBron James, Matthew Gibson shares his thoughts at his Wills & Wealth blog – I Can't Take it Anymore. It's Time to Talk LeBron.

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

6th Circuit weighs in on administrative exhaustion of EEOC charges

Before an employee can file a Title VII lawsuit, the employee must first file a timely administrative charge with the EEOC. As a general rule, an employee cannot bring claims in a lawsuit that were not included in the EEOC charge. However, because employees, and not attorneys, typically file EEOC charges, courts review them liberally, and typically will consider any claims that are reasonably related to or grow out of the factual allegations in the EEOC charge.

In Younis v. Pinnacle Airlines, Inc. (6th Cir. 6/30/10) [pdf], the 6th Circuit explains what it means for a claim to be reasonably related to or grow out of the factual allegations in the charge. In Younis, the employee alleged discrimination and harassment based on religion and national origin, in addition to retaliation. The 6th Circuit upheld the dismissal of the harassment and retaliation claims because the EEOC charge lacked any specific reference to those claims:

The problem in this case is that in his EEOC filing, Younis did not allege a claim of hostile work environment, and he cited only discrete acts of alleged discrimination, limited to three or four isolated comments by his peers that occurred over a three-year period. In order to establish a claim of hostile work environment, however, a plaintiff must present evidence of harassment that “unreasonably interfer[es] with [his] work performance and creat[es] an objectively intimidating, hostile, or offensive work environment.” … As a result, we have suggested in several unreported cases that the inclusion in an EEOC charge of a discrete act or acts, standing alone, is insufficient to establish a hostile-work-environment claim for purposes of exhaustion. We now hold that such evidence, cited in an EEOC charge to support a claim of disparate treatment, will not also support a subsequent, uncharged claim of hostile work environment “unless the allegations in the complaint can be reasonably inferred from the facts alleged in the charge.” …

Younis’s retaliation claim suffers from the same deficiency…. The EEOC form included a specific check-off box to indicate a charge of retaliation. Although Younis marked other boxes on the form evincing an intent to charge discrimination based on religion and national origin, he did not indicate that he was alleging retaliation. Moreover, there is nothing in the narrative portion of the EEOC charge that could be interpreted as claiming retaliation, nor is there any language that would have put the EEOC or the employer on notice that Younis was alleging retaliation by Pinnacle.

This ruling shows that courts give serous consideration to whether a plaintiff exhausted all claims with the EEOC. This exhaustion requirement furthers two key policies for employers:

1. It provides the employer information concerning the conduct about which the employee complains.
2. It affords the EEOC and the employer an opportunity to settle all disputes through conference, conciliation, and persuasion.

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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.

Following up on Thompson v. North American Stainless – the tea leaves of associational retaliation

In response to yesterday’s post on the Supreme Court agreeing to review the issue of associational retaliation, Michael Fox at Jottings by An Employer’s Lawyer suggests that Thompson might come out better for employers than one might think:

However, this is ultimately a question of statutory construction, which calls to mind Jackson v. Birmingham Board of Education, where the dispute was whether Title IX prohibited retaliation, although there was no anti-retaliation provision in the statute itself. In a 5-4 decision, the court’s opinion finding retaliation was prohibited was authored by Justice O’Connor. Significantly one of the dissenters was Justice Anthony Kennedy.

Despite some personnel changes since the Jackson case, the Court’s ideological split remains the same. Thompson will come down to a decision between statutory interpretation and policy (with Justice Kennedy likely holding the deciding vote).

The original Thompson v. North American Stainless (6th Cir. 3/31/08) [pdf] decision chose policy:

However, “[i]t is a well-established canon of statutory construction that a court should go beyond the literal language of a statute if reliance on that language would defeat the plain purpose of the statute[.]” … Here, a literal reading of section 704(a) suggests a prohibition on employer retaliation only when it is directed to the individual who conducted the protected activity. Such a reading, however, “defeats the plain purpose” of Title VII. There is no doubt that an employer’s retaliation against a family member after an employee files an EEOC charge would … dissuade “reasonable workers” from such an action.

The en banc panel [pdf]—the decision the Supreme Court agreed to review—went the opposite way, opting for the clear language of the statute:

The statutory language of § 704(a) … explicitly identifies those individuals who are protected – employees who “opposed any practice made an unlawful employment practice” or who “made a charge, testified, assisted or participated in any manner in an investigation, proceeding, or hearing” under Title VII. Section 704(a) thus clearly limits the class of claimants to those who actually engaged in the protected activity…. In other words, Congress carefully chose qualifying words of action (“opposed,” “testified,” “made a charge,” “participated,” “assisted”), not words of association…. The plain text simply cannot be read to encompass “piggyback” protection of employees like Thompson who, by his own admission, did not engage in protected activity, but who is merely associated with another employee who did oppose an alleged unlawful employment practice.

While the Supreme Court’s battle lines are clear, how the ruling will come out is less so. Jackson v. Birmingham Board of Education is one guidepost for us to look to. Crawford v. Metropolitan Gov’t of Nashville is another. In Crawford (decided unanimously just last year), the Supreme Court held that the opposition clause of Title VII’s retaliation provision covers an employee who merely answers questions during an employer’s purely internal investigation into a co-worker’s allegations of harassment against a different employee. In that case, the Court took a broad reading of the meaning of “opposition” to impart a policy choice against retaliation.

If you want to look to Crawford for further guidance, Justice Kennedy was part of the seven-member majority that defined “oppose” (albeit in dicta) as “to be hostile or adverse to, as in opinion.” Justices Alito and Thomas separately concurred to make the point that “opposition” must include “active and purposive” conduct, and to take the majority to task for embracing a definition that permits opposition without action. If Thompson ultimately interprets the opposition clause to include silent opposition, it could be a bad day for employers. The Court could conclude that one closely associated with another who engages in protected activity engages in opposition through the closeness of the relationship and the implied hostility to the employer’s position.

We won’t find out what all this means until sometime next year. The tea leaves are not at all clear. Employers should be concerned, though, that Title VII is about to be judicially expanded yet again, and the doors may swing wide open for the filing of more retaliation claim.

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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.

Supreme Court agrees to hear associational retaliation case

On the last day of its term, the Supreme Court has agreed to hear the issue of whether Title VII prohibits retaliation against an employee who is associated with another employee who engages in protected activity. The case—Thompson v. North American Stainless—hails from the 6th Circuit. I’ve covered this case in depth, so instead of recapping, I’ll simply direct you to my prior posts:

• En banc panel of 6th Circuit reverses prior holding in Thompson v. North American Stainless and rejects associational retaliation claims
• 6th Circuit decides that the closeness of a relationship does not matter in “associational discrimination” claims
• Associational retaliation revisited
• Courts sets boundary on associational discrimination claims
• 6th Circuit recognizes claim for associational retaliation

It is troubling that the Court accepted review of this case. For one thing, this Court has proven itself favorable to employee rights in retaliation claims. For another, there is no split among the circuit courts on this issue; the Court could have maintained the status quo simply by denying cert. Management-side employment lawyers and the businesses we represent should be concerned about the prospects of reversal and the recognition of a claim for associational retaliation. I will have much more coverage on this issue next year when the case is argued and decided.

[Hat tip: Workplace Prof Blog and LawMemo Employment Law Blog]

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

Do you know? Ohio military family leave law takes effect July 2

Beginning this Friday, July 2, 2010, Ohio employers with 50 or more employees will be required to provide leave for employees who are a spouse or parent of a member of the military who is called to active duty or is injured or hospitalized while serving on active duty.

The law—Ohio Revised Code Chapter 5906—has the following provisions and limitations:

• The employee eligible for leave must be a spouse, parent, or legal custodian of a person who is a member of the uniformed services and who is called into active duty, or who is injured, wounded, or hospitalized while serving on active duty.

• Employees are only eligible for leave if they have been employed for at least 12 consecutive months and for at least 1,250 hours in the 12 months immediately preceding the leave.

• Leave is limited to once per calendar year.

• Employees are entitled to the lesser of 10 work days or 80 work hours.

• It only covers full-time duty in the active military service for periods of longer than 30 days. It does cover training, or the period of time for which a person is absent from employment for an examination to determine fitness for military duty, unless it is contemporaneous with full-time military duty.

• An employee must provide at least 14 days’ notice prior to taking leave, unless the leave is taken because an employee receives notice from a representative of the uniformed services that the injury, wound, or hospitalization is of a critical or life-threatening nature.

• The dates on which an employee takes leave cannot occur more than two weeks prior to, or one week after, the deployment date of the employee’s spouse, child, or ward or former ward.

• The employee cannot have any other leave available, except sick leave or disability leave.

• Employers must continue to provide benefits to employees during the leave period. Employees remain responsible for their pro rata share of costs, if any.

• Upon the completion of the leave, employers must restore the employee to the position the employee held prior to taking that leave or a position with equivalent seniority, benefits, pay, and other terms and conditions of employment.

• An employer may require an employee requesting to use leave to provide certification from the appropriate military authority.

• Retaliation is prohibited.

• Employers cannot require employees to waive their leave rights.

• Employees can sue for injunctive relief and money damages to enforce their rights.

[Hat tip: @CCHWorkDay]

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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.

The dominos start to fall – some clarity on New Process Steel

On June 17, the Supreme Court held that the NLRB needs at least three members to have the authority to act. At the time, I wrote that with the stroke of their pens, the Supreme Court invalidated the nearly 600 decisions issued by the two-member NLRB over the prior 26 months. In truth, I was merely hypothesizing based on the practical meaning of that holding. Now, though, the circuit courts are beginning to weigh in. While the decisions issued by the two-member Board are invalid, the mechanics of what to do with them are very much up in the air.

In Galicks, Inc. v. NLRB (6th Cir. 6/24/10) (unpublished) [pdf], the 6th Circuit was presented with the review of an NLRB decision that had been issued by the two-member Board. The court refused to hear the case, and, in a terse eight-line opinion, remanded it back to the NLRB “for proceedings consistent with [New Process Steel].” The remand means that the now full five-member NLRB will be able to reconsider its prior decision.

The 6th Circuit’s approach, however, is not universal. As the GT LE Blog reported last week, the 2nd Circuit, facing the same issue, simply denied enforcement of the NLRB’s order, foreclosing any further proceedings by the five-member Board. In other words, because the Supreme Court provided no guidance to the circuit courts on what to do in light of its holding in New Process Steel, we are going to see a circuit-by-circuit approach. Some will remand, some will deny enforcement, and some may do something else. We may be left with a fragmented review of the last 26 months of federal labor law, with the reopening of these old decisions left up to the geographical whim of which part of the county from which they happen to hail. In other words, labor law is going to be a mess for a little while.

According to a footnote in Galicks, the NLRB intend to file motions to remand in all pending cases affected by New Process Steel. We’ll see if the NLRB’s proactive measures lead to a more uniform approach to the handling 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.

WIRTW #132

Although earlier this week I touched on Rent-A-Center v. Jackson, I did not discuss it in-depth. Thankfully, there are a lot of bloggers who did:

• Breaking: U.S. Supreme Court Affirms Arbitration Provisions in Employment Disputes; What It Means for Employers – from Dan Schwartz’s Connecticut Employment Law Blog

• The Potential Impact of Today’s Supreme Court's 5-4 Decision on Arbitrability – from Michael Fox’s Jottings By An Employer’s Lawyer

• SCOTUS Addresses Arbitrability Determination – from Philip Miles’s Lawffice Space

• New SCOTUS Arbitration Opinion: Both Boring & Important – from Tim Eavenson’s Current Employment

• Supreme Court Rules in Favor of Employer on Arbitration Agreements – from Tom Crane’s San Antonio Employment Law Blog

• Supreme Court Expands Enforcement of Arbitration Clauses Calling for The Arbitrator To Decide Arbitrability Issues – from Wyatt Employment Law Report

• Victory for Business in Rent-A-Center West v. Jackson – from Sarah Cole at the ADR Prof Blog

• Supreme Court: Arbitrator, Not Court, Decides Whether Arbitration Agreement is Unconscionable – from the Workplace Prof Blog

• New rule for deciding validity of agreements to arbitrate arbitration – from SCOTUS Blog

• SCOTUS: Arbitrator, not court, decides whether arbitration agreement is unconscionable (5-4) – from LawMemo

Here’s the rest of what I read this week:

Wage & Hour

• Counting Sheep Over Ledbetter – from Stephanie Thomas at Compensation Cafe

• A Wage/Hour Story Told in Million-Dollar Lawsuits and Wage and Hour Simple? I Don't Think So – from HR Daily Advisor

• Minimum Wage — HR Song of the Week – from The Word on Employment Law with John Phillips

• Senate Committee Holds Hearing on Worker Misclassification – from Washington D.C. Employment Law Update

• Sales Representatives’ Overtime Lawsuits Continue To Result In Conflicting Decisions – from Hunton Employment & Labor Perspectives™

Discrimination

• Gay worker bullied and harassed at Las Vegas Walmart: What’s next, “always low prices” on pink triangles? – from David Yamada’s Minding the Workplace

• The ADA and your EAP – from Sindy Warren at the Warren & Hays Employment Law Blog

• Can Social Recruiting Lead to Discrimination and Equal Opportunity Issues? – from Newton Software Blog

Competition & Technology

• Can Social Media Violate a Non-compete Clause? – from Lawyerist

• To Get Injunctive Relief, Be Able to Prove Specific Irreparable Harm – from Trading Secrets

• Email Rules - Beyond Foul Language – from Rob Radcliff’s Smooth Transitions

• Watch Out for Metadata – from Ken Adams’s AdamsDrafting

Miscellaneous

• Trends in Employment Background Screening – from Nick Fishman at employeescreenIQ Blog

• “Winning” Workplace Arguments is Really Just Consensus Building – from Victoria Pynchon’s Settle It Now Negotiation Blog

• Why and how to choose caddies and local counsel – from Michael’s Maslanka’s Work Matters

• Strategic Use of Swearing in the Workplace – from Bob Sutton

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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 do you do when the boss is accused of harassment?

Earlier this week, Forbes.com published an article entitled Bosses Behaving Badly. If you want an example of the type of misconduct the article chronicles, look no further than EEOC v. Fairbrook Medical Clinic (4th Cir. 6/18/10) [pdf], a sex harassment case decided last week. You really have to read the opinion to get the full picture of the degree and scope of inappropriate sex-based conduct in which the medical clinic’s sole owner, Dr. Kessel, was alleged to have engaged. Here’s some of the highlights:

• Repeatedly showing off an x-ray of his penis, calling it “Mr. Happy.”
• Referring to his wife’s “nice, tight pussy,” during a staff meeting.
• Telling dirty jokes, which included imitations of kissing a woman’s breasts.
• Frequently talking to staff members about oral sex and women’s breasts.
• Using terms like “slut” and “cunt” to describe female employees.
• Asking a female doctor if he could help her pump her breast milk, if he could see her breasts, and if he could like up some spilled breast milk.

The 4th Circuit, which is not necessarily known as being the most employee-friendly forum, decisively overturned the district court’s dismissal of the claim:

Activities like simple teasing, offhand comments, and off-color jokes, while often regrettable, do not cross the line into actionable misconduct. ... If they did, courts would be embroiled in never-ending litigation and impossible attempts to eradicate the ineradicable, and employers would be encouraged “to adopt authoritarian traits” to purge their workplaces of poor taste.... This case involves more than general crudity, however.… Kessel targeted her with highly personalized comments designed to demean and humiliate her.

This case, however, raises an issue above and beyond the difference between lawful workplace incivility and actionable harassment. The alleged perpetrator was also the sole owner of the business. If the buck stopped with him, to whom could an employee complain about his harassing behavior? In other words, what do you do when harassment reaches the highest levels of your organization? This question is a difficult one for businesses to answer. I’ll make a few suggestions:

1. Any harassment policy should have more than one avenue available for an employee to complain, such as different people across different department.

2. Additionally, employees should not be limited to complaining in person. Employees should be able to complain in writing, over the phone, or by email.

3. Consider setting up a telephone or email hotline to log complaints.

4. The owner, CEO, or other higher-up should be screened-off from any investigation, other than his or her investigatory interview.

[Hat tip: Daily Developments in EEO 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.

Ohio Supreme Court rules that employers do not have to provide pregnant employees greater leave rights than non-pregnant employees

Yesterday, the Ohio Supreme Court handed businesses a huge victory on the issue of pregnancy leave rights.

Pataskala Oaks Care Center had a written policy that required all employees to work for a year before becoming eligible for leave for any reason. It fired Tiffany McFee three days after she gave birth because she was absent from employment before she had become eligible for leave under that policy. McFee sued for sex discrimination. The court of appeals held that Ohio’s antidiscrimination laws require that employers provide employees with a reasonable period of maternity leave, and the at-issue policy that denied McFee leave was direct evidence of sex discrimination.

In McFee v. Nursing Care Mgmt. of Am. (6/22/10) [pdf], the Ohio Supreme Court disagree, and held:

An employment policy that imposes a uniform minimum-length-of-service requirement for leave eligibility with no exception for maternity leave is not direct evidence of sex discrimination….

In reaching this decision, the Court pointed out that the pregnancy discrimination laws do not require preferential treatment for pregnant employees. They merely mandate that employers treat pregnant employees the same as non-pregnant employees who are similarly situated with respect to their ability to work. Because the at-issue length-of-service requirement is pregnancy-blind—it treats all employees the same by requiring every employee to 12 months of employment before becoming eligible for leave—it is not direct evidence of sex discrimination.

The court also harmonized Ohio’s pregnancy discrimination regulations on mandatory maternity leave—Ohio Adm. Code 4112-5-05(G)(2) and (G)(5).

• (G)(2) provides: “Where termination of employment of an employee who is temporarily disabled due to pregnancy or a related medical condition is caused by an employment policy under which insufficient or no maternity leave is available, such termination shall constitute unlawful sex discrimination.”
  
• (G)(5) provides: “Women shall not be penalized in their conditions of employment because they require time away from work on account of childbearing. When, under the employer’s leave policy the female employee would qualify for leave, then childbearing must be considered by the employer to be a justification for leave of absence for female employees for a reasonable period of time. For example, if the female meets the equally applied minimum length of service requirements for leave time, she must be granted a reasonable leave on account of childbearing.”
  

The Court recognized the potential tension between these two provisions. (G)(2) appears to indicate that a policy providing no leave is discriminatory, while (G)(5) states that a uniform minimum-length-of-service requirement for leave eligibility is permissible. But:

Reading these rules in light of the statutory purpose, Ohio Adm.Code 4112-5-05(G)(2) must mean that when an employee is otherwise eligible for leave, the employer cannot lawfully terminate that employee for violating a policy that provides no leave or insufficient leave for temporary disability due to pregnancy or a related condition…. This interpretation of the rule harmonizes (G)(2) with (G)(5), which specifies that when a woman qualifies for leave, the leave provided for childbearing must be reasonable.

Thus, an employer may terminate a pregnant employee who has not yet met a minimum-length-of-service requirement under a neutral leave policy. There are a three key takeaways for employers from this case.

1. Leave policies must be neutral. An employer cannot have a maternity leave policy with a length-of-service requirement, and a different leave policy for other situations with no length-of-service requirement, or one of a shorter duration.
   
2. Employers do not have to offer maternity leave to employees. However, if leave is offered for any reason, it must include maternity leave in at least the same amount and on the same conditions as other types of leave.
   
3. Merely having a neutral policy does not grant an employer carte blanche to terminate pregnant employees or new moms. The policy must still be applied equally to all employees with similarly disabling conditions. If new-employee Bill in accounting needs six weeks off to recover from back surgery, you cannot let Bill take the time unless you are prepared to similarly ignore the length-of-service requirement for all pregnant employees. Otherwise, you are opening yourself up to a claim of pretext—that the application of the facially neutral policy is a pretext for pregnancy discrimination.

DOL permits FMLA leave for gay parents (and others too)

The Internet has been ablaze with news that the Department of Labor would be expanding the rights of gay workers to take FMLA leave to care for sick or newborn children of same-sex partners (but not for each other). The change comes in the form of Wage & Hour Division Administrator’s Interpretation No. 2010-3. This Interpretation clarifies the definition of “son or daughter” under the FMLA as it applies to an employee standing “in loco parentis” (that is, one assuming the obligations of a parent without the legal formalities of an adoption) to a child.

The FMLA entitles an employee to 12 workweeks of unpaid leave for the birth or placement of a son or daughter, to bond with a newborn or newly placed son or daughter, or to care for a son or daughter with a serious health condition. The definition of “son or daughter” under the FMLA includes not only a biological or adopted child, but also a “foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis.” According to the DOL, “Congress stated that the definition was intended to be ‘construed to ensure that an employee who actually has day-to-day responsibility for caring for a child is entitled to leave even if the employee does not have a biological or legal relationship to that child.’”

Here’s the key language expounding upon the coverage of FMLA-leave:

It is the Administrator’s interpretation that the regulations do not require an employee who intends to assume the responsibilities of a parent to establish that he or she provides both day-to-day care and financial support in order to be found to stand in loco parentis to a child.  For example, where an employee provides day-to-day care for his or her unmarried partner’s child (with whom there is no legal or biological relationship) but does not financially support the child, the employee could be considered to stand in loco parentis to the child and therefore be entitled to FMLA leave to care for the child if the child had a serious health condition.  The same principles apply to leave for the birth of a child and to bond with a child within the first 12 months following birth or placement…. 

Where an employer has questions about whether an employee’s relationship to a child is covered under FMLA, the employer may require the employee to provide reasonable documentation or statement of the family relationship. A simple statement asserting that the requisite family relationship exists is all that is needed in situations such as in loco parentis where there is no legal or biological relationship.

Based on this interpretation of in loco parentis, the FMLA covers:

• An employee who will share equally in the raising of an adopted child with a same sex partner, but who does not have a legal relationship with the child.
  
• An employee who will share equally in the raising of a child with the child’s biological parent.
  
• Stepparents.
  
• Where a grandparent or other relative takes in a child and assumes ongoing responsibility for raising the child because the parents are incapable of providing care.
  

While the rights of same-sex partners have garnered all of the attention, this Administrator’s Interpretation actually goes further by expounding upon the definition of in loco parentis. The publication of this Interpretation is a good excuse for employers to review FMLA policies to ensure that coverage for parental rights is up to date.

Do you know? Does mandatory arbitration of employment disputes work?

Yesterday, in Rent-A-Center v. Jackson [pdf] the U.S. Supreme Court held that the issue of the enforceability of an arbitration agreement should be decided by the arbitrator and not by a court. As fellow employment Dan Schwartz, of the Connecticut Employment Law Blog, tweeted moments after the decision’s announcement, “SCOTUS continues to heart arbitration provisions in employment cases.”

The bigger question, though, is whether employers should continue to heart arbitration of employment cases. The Winter 2010 edition of the ABA Journal of Labor & Employment Law has an article entitled Is Mandatory Employment Arbitration Living up to Its Expectations? A View from the Employer’s Perspective, by Charles Coleman, in-house counsel at Raytheon. Mr. Coleman argues that many companies are not all that satisfied with choosing mandatory arbitration of their employment disputes.

One of Mr. Coleman’s central arguments is that arbitration may not be faster or less expensive than traditional litigation. And, he has the numbers to bear this out. In a study of 19 recent employment cases filed against one company, Mr. Coleman discovered that arbitration is 30% more expensive and takes nearly 25% longer:

• The average costs and fees in an employment arbitration were $102,338, as compared to $70,491 in litigation.
  
• The average life cycle of an employment arbitration, from filing to decision, was 21 months, as compared to 17 months in litigation.
  

While this is a small sample-size, it at least illustrates that the premise that arbitration is a quicker and cheaper way to resolve employment disputes may be faulty. Aside from expense-control and speed-of-resolution, the other reason that employers favor employment arbitrations is to guard against runaway jury verdicts. But, if the premise is faulty as to cost and speed, then businesses should be questioning whether there are other ways to insure against juries.

To this end, let me suggest that instead of arbitration agreements businesses consider implementing jury trial waivers as a condition of employment. A jury trial waiver agreement both eliminates the risk of a runaway jury’s high damage award, and also preserves all appeal rights that arbitrations virtually eliminate.

There is no hard and fast answer to whether your business would be better served by arbitrations, bench trials, or some other solution. But, there are options other than the conventional wisdom that businesses should be arbitrating their employment claims.

Texting does not make you a bad parent

A day late, but here’s a Fathers’ Day message from Louis C.K. (maybe the funniest human being the planet) that explains how texting while spending time with your kids makes you a good dad:

Louis C.K. on Father’s Day (and, if you’re familiar with Louis, this is from CBS News, and totally safe for work).

Back to more substantive stuff tomorrow.

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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 #131

Each and every week, there seems to be a breaking story that I just can’t get to, and there’s a half-dozen other bloggers who’ve already said all there is to say about it. This week proved no exception. On Wednesday, the Department of Labor issued the second Administrator’s Interpretation from its Wage & Hour Division. This Interpretation concludes that the time spent by employees donning and doffing (that is, putting on and taking off) protective equipment required by law is compensable and must be paid. It also means that an employee’s work day begins with the donning of required protective equipment and ends with its doffing, and all of the time in-between is payable work-time. For more on this important wage and hour issue, please read the thoughts of my fellow bloggers:

• Employees Must Be Paid for Donning, Doffing Required Protective Gear – from Human Resources News

• US DOL Issues New Adminstrator Interpretation – from What’s New in Employment Law?

• Redefining Clothes - DOL Edition – from Philip Miles’s Lawffice Space

• Wage and Hour Division Changes Interpretation of FLSA Clothes-Changing Provision – from Washington Labor & Employment Wire

• DOL redefines “clothes” – from LawMemo Employment Law Blog

• DOL Issues Administrator’s Interpretation on Definition of “Clothes” and Whether Changing Clothes is a Principal Activity – from Texas Employment Law Update

• DOL Issues Administrator Interpretation On The Definition Of “Clothes” – from Laconic Law Blog

Here’s the rest of what I read this week:

Wage & Hour

• Lessons from E. coli: Plan or Perish – from Stephanie Thomas at Compensation Cafe

• Will You Take Back Lunch? – from Workplace Diva

• “Realignment” Of Sales Territory Defeats FMLA Claim – from FMLA Insights

• Important Development in Class Action Law: Indemnification Agreement Upheld – from Wage & Hour - Development & Highlights

Discrimination

• Most Job Discrimination Suits Win, at Best, Small Settlements, Study Says – from ABA Journal Daily News

• Tenth Circuit says position held by a temp is not “vacant” for purposes of the ADA – from Employment Law Matters

• You don’t have to retain insubordinate employees – from Sindy Warren at the Warren & Hays Employment Law Blog

• When employee complaints fall on deaf ears – from HR Cafe

• DeepNet: The Final Frontier for Employment Law? – from The Proactive Employer

• Ban Beauty Bias? (And The Horse It Rhode In On...) – from Discriminations

• Too Sexy for My Bosses: Why lawsuits based on looks discrimination—even good ones—are a bad idea – from Richard Thompson Ford at Slate

Social Networking

• Discovery of Social-Media Profiles – from Molly DiBianca’s Going Paperless

• Social Networking Sites: Savvy Screening Tool or Legal Trap? – from New York Labor & Employment Law Report

• Social Networking Sites and Employment: Watch Out for GINA – from Strategic HR Lawyer

Technology

• Computer Fraud and Abuse Act: Current Developments – from Fitzpatrick on Employment Law

• Computer Forensics and Personal Computers in Business Cases – from Ride The Lightning

Labor Law

• The State of the Employment Law Practice - “Boom Times” for the NLRB – from Dan Schwartz’s Connecticut Employment Law Blog

• EFCA’s Obituary – from EFCA & Labor Law Reform Blog

• Gagging Employers – from The ChamberPost

• Is Obama’s NLRB Looking to Suppress Worker Votes in Union Elections? – from LaborUnionReport.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.

Supreme Court tosses 26 months of NLRB decisions in the rubbish

Today was a busy day at the Supreme Court. In addition to Quon (and three other non-labor and employment cases), it also issued its much anticipated decision in New Process Steel v. NLRB. In that decision, the Court held that the NLRB needs at least three members to act. For the last two-plus years of the Bush administration, the NLRB was acting with only two of its five positions filled. By ruling that the Board needs three members, the Court invalidated the 500+ decisions issued by that two-member board. The practical implications of this decision were not lost on the four-Justice dissent penned by Justice Kennedy:

As of the day this case was argued before the Court, the National Labor Relations Board (Board), constituted as a five-member board, had operated with but two members for more than 26 months. That state of affairs, to say the least, was not ideal. This may be an underlying reason for the Court’s conclusion. Despite the fact that the statute’s plain terms permit a two-member quorum of a properly designated three-member group to issue orders, the Court holds that the two-member quorum lost all authority to act once the third member left the Board. Under the Court’s holding, the Board was unauthorized to resolve the more than 500 cases it addressed during those 26 months….

Indeed, in my view, the objectives of the statute, which must be to ensure orderly operations when the Board is not at full strength as well as efficient operations when it is, are better respected by a statutory interpretation that dictates a result opposite to the one reached by the Court.

Looks like the NLRB is going to be very busy re-deciding those 500-plus cases. A copy of the New Process Steel opinion is available from the Supreme Court’s website, here.

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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.

Quon v. Arch Wireless: If privacy rights fall in the forest and no one chooses to rule on them…

Quon v. Arch Wireless was one the most anticipated cases before the U.S. Supreme Court for employment attorneys. We hoped that the Court would use this case to sort out the issues that arise from the intersection of employment rights, privacy, and technology. Unfortunately for employment lawyers, Quon turned out to be dud. Because the employer was a police department, the Court decided the case on narrow 4th Amendment grounds, and ignored the key employment and privacy issues for which we had held out hope.

Recall that Quon involved a police department’s review of the content of its employee’s sexually explicit text messages sent via his Department-issued pager. The Court held that the search of Quon’s text messages was reasonable and there was no violation of his 4th Amendment rights. Importantly, the court cautioned that employers not read too much into the management-side victory in this case:

Prudence counsels caution before the facts in the instant case are used to establish far-reaching premises that define the existence, and extent, of privacy expectations enjoyed by employees when using employer-provided communication devices. Rapid changes in the dynamics of communication and information transmission are evident not just in the technology itself but in what society accepts as proper behavior. As one amici brief notes, many employers expect or at least tolerate personal use of such equipment by employees because it often increases worker efficiency…. Another amicus points out that the law is beginning to respond to these developments, as some States have recently passed statutes requiring employers to notify employees when monitoring their electronic communications…. At present, it is uncertain how workplace norms, and the law’s treatment of them, will evolve….

Cell phone and text message communications are so pervasive that some persons may consider them to be essential means or necessary instruments for self-expression, even self identification. That might strengthen the case for an expectation of privacy. On the other hand, the ubiquity of those devices has made them generally affordable, so one could counter that employees who need cell phones or similar devices for personal matters can purchase and pay for their own. And employer policies concerning communications will of course shape the reasonable expectations of their employees, especially to the extent that such policies are clearly communicated.

A broad holding concerning employees’ privacy expectations vis-à-vis employer-provided technological equipment might have implications for future cases that cannot be predicted. It is preferable to dispose of this case on narrower grounds.

In other words: the status quo reigns, employers are left with the no more guidance on these emerging issues than before, and the best practice is still a reasonable technology policy that plainly spells out employees’ expectations concerning personal, non-work related use of employer-owned equipment.

A copy of the Quon pinion is available from the Supreme Court’s website, here.

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

6th Circuit upholds release of USERRA claim in separation agreement

We employment lawyers love severance agreements. I preach their benefits to my clients for all but the most egregious of for-cause terminations. For some amount of compensation (usually salary and benefit continuation measured in weeks or months), employers can buy off the risk of protracted and expensive litigation. The amount paid in severance will be less than the amount of fees incurred in defending litigation by multiple factors. What a nightmare, then, to have an employee who signed a severance agreement sue you anyway. That is exactly the situation in which IBM found itself in Wysocki v. Intentional Business Machine Corp. (6th Cir. 6/16/10) [pdf].

The facts of Wysocki are relatively simply. After George Wysocki returned from military service in Afghanistan, IBM refused to reinstate him to his pre-leave position. Before Wysocki could assert a violation of the Uniformed Services Employment and Reemployment Rights Act (USERRA, the federal statute that guarantees job restoration following a military leave), IBM presented him with a separation agreement, which contained a release of claims. In exchange for $6,000 in severance pay, Wysocki promised not to sue IBM relating to his employment or termination, including claims related to his “veteran status.” Even though Wysocki signed the release, he sued anyway, claiming that USERRA prohibits releases of claims.

This case concerns two specific provisions of USERRA:

• 4302(a), which provides that USERRA will not supersede or nullify any contract or agreement that is more beneficial than rights provided by the statute; and

• 4302(b), which provides that USERRA will supersede any contract or agreement that reduces, limits, or eliminates any right or benefit provided by USERRA.

Wysocki argued that under 4302(b), USERRA superseded the release, because it was a contract that eliminated his rights and benefits under USERRA. The 6th Circuit disagreed:

The Release used clear and unambiguous language and involved a valuable amount of consideration. The Release stated that it covered claims based on “veteran status.” This clear and unambiguous language informed Wysocki that he was waiving his USERRA rights and, in exchange for signing the Release, Wysocki received over $6,000. Under these circumstances, it appears from the record that Wysocki understood that the Release eliminated his USERRA rights, that he signed the Release because he believed that the rights provided in the Release were more beneficial than his USERRA rights and, therefore, that the Release is exempted from the operation of § 4302(b) by § 4302(a).… We also note that Wysocki was encouraged to see a lawyer and had ample time to consider the Release before he signed it. In short, we hold that § 4302 does not invalidate the Release.

As the concurring opinion points out, the enforceability of a waiver of USERRA rights and claims under section 4302 will likely come down to an analysis of four key issues, which you should be considering when drafting an agreement that includes a release of USERRA claims:

1. Does the release unambiguously state an intent to waive USERRA rights? The release in Wysocki used the words “veteran status.” For the sake of clarity, consider mentioning the USERRA statute directly in the release itself.

2. Did the employee receive substantial consideration in return for executing the release?

3. Did the employee sign the release knowingly, voluntarily, and not under duress? As added protection, encourage the employee have an attorney of his or her choice review the release pre-execution.

4. Was the money and other consideration the employee received in exchange for signing the release more beneficial than the USERRA rights he or she waived and released? Note that the majority only required the employee to believe that the consideration was more beneficial than the USERRA rights he was waiving. For an at-will employee, however, I would argue that any consideration paid would be greater than the rights waived, since an employee can be terminated at any time and for any reason.

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

The art of the apology

Those who’ve been reading for awhile know that I grew up in Philadelphia. I am a proud survivor of the Philadelphia public school system. When I was in 11th grade at George Washington High School, I awoke one winter morning to find 9 inches of snow and ice covering the roads and sidewalks. Anyone who has any experience with any large metropolitan school district knows that they are as likely to close for weather as France is to win a modern war. So, it was no surprise that schools were open for business that morning.

I was none too happy about having to trudge the mile to school, but my parents both taught in the district, and if they had to go to work, I had to go to school. My dad, though, had what appeared to be a brilliant idea. “Why don’t you call the superintendent and let her know your feelings about school being open?” (In retrospect, maybe he was having me do his dirty work for him.) So, I got the White Pages out of the hall closet (no Internet in 1989) and found the number for the office of the superintendent. It being 6:30 in the morning, all I got was her answering machine. Here’s the message I left:

My name is Jonathan Hyman and I am a junior at George Washington High School. I was not happy to learn that schools were open this morning. Busses aren’t running, and the roads are slippery and dangerous. I do not feel that it is safe to go to school. If I get to school and find that none of my teachers are there, I am going to be very pissed off.

Direct, but innocuous enough, I thought. Which is why I was somewhat surprised when the principal pulled me out of my 4th period health class for me to talk to someone from the superintendent’s office demanding justice for my obscenities. I assured the principal that I had not used any obscenities, but one man’s “pissed off” is another’s f-bomb, I suppose. After a rational conversation (from my end), the superintendent’s representative bottom-lined it for me—I could either apologize or face expulsion. I did not think being expelled from school would bode well for my future, so I apologized. The irony of the whole situation was that when I called to apologize, I again got the superintendent’s answering machine. When I finally met her the following year at the seniors’ honors banquet, I was pretty sure she had no idea who I was or what had happened the prior winter.

What, you may be asking yourselves, does this story from my youth have to do with employment law? It’s as simple as this. Sometimes, all someone wants to resolve a problem is an apology. It's easy to dig your heals in and fight, especially when you are being accused of something as insidious as discrimination. Those fights will cost you hundreds of thousands of dollars in legal fees. Most times, those fights are necessary. Sometimes, though, a simple apology will suffice to restore the status quo. 21 years ago, the future lawyer in me felt that my 1st amendment rights were being trampled. But, it was not worth vindicating those rights if it put my chances at college admission in jeopardy. The next time you are dealing with a sensitive situation with an employee, before shifting into battle mode stop and ask yourself whether a sincere apology will solve the problem. It may be one of the hardest, and best, decisions you will ever make.

Do you know? Mandatory union posting for federal contractors

File this story under just because the Employee Free Choice Act is temporarily dead does not mean that the Obama administration cannot impact the rights of labor unions.

If you are a federal contractor with $100,000 or more in federal contracts, or a federal subcontractor with $10,000 or more, a new federal regulation is going to require you to make a pretty scary posting in your workplace.

On January 30, 2009, President Obama signed Executive Order 13496 [pdf], which requires federal contractors to notify their employees of their rights under federal labor laws. The DOL recently issues its regulations implementing this Executive Order [pdf], along with the notice that must be posted. The mandatory notice lists employees’ rights under the National Labor Relations Act to form, join, and support a union and to bargain collectively with their employer; provides examples of unlawful employer and union conduct that interferes with those rights; and indicates how employees can contact the National Labor Relations Board with questions or to file complaints. In other words, it’s a roadmap for how non-union employees can form a union.

The notice must be posted in paper form along with other federal and state employment law postings. It also must be posted electronically if other notices are similarly posted. Electronic posting, however, cannot be used as a substitute for the physical posting. The language of the posting also must be inserted into all federal contracts and subcontracts.

Employees may file complaints with the Department of Labor about contractors and subcontractors who do not comply. Contractors found to be in violation may have existing contracts suspended or cancelled, may be debarred from future federal contracts and subcontracts, and may be included on a list published to all executive agencies listing the names of contractors and subcontractors declared ineligible for future contracts.

A copy of the required posting is available as a PDF from the Department of Labor. This posting is mandatory for all but the smallest federal contractors beginning on June 21, 2010.

If you are required to make this posting, consider taking the following counterbalancing measures, all of which legally help combat unionizing efforts:

• Examine your wages, benefits, and overall treatment of employees for fairness and competitiveness.

• Review (or implement) a no-solicitation/no-distribution policy.

• Educate employees on the company’s formal position on labor unions, including their right not to form a union.

• Train managers and supervisors on the company’s stance on unions, how to spot potential organizing efforts, and how to respond to employees’ questions and concerns.

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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.

Empathy does not require liability

This morning, Judy Greenwald at Business Insurance has an article discussing the recent spate of anti-bullying laws making the rounds in various state legislatures. Over at Minding the Workplace, David Yamada, founder and president of the New Workplace Institute, takes issue with the management-side lawyers quoted by Ms. Greenwald for not understanding the proposed law’s liability threshold, and for not being empathetic towards people who’ve been bullied:

The … article indicates that many management-side lawyers who oppose the Healthy Workplace Bill may not understand the relatively high thresholds imposed for winning a claim, as well as the provisions built into the statute that discourage frivolous claims and provide legal incentives for employers to act preventively and responsively toward bullying at work…. What’s absent from the piece is the most disturbing, namely, the lack of acknowledgement of the destructive effects of abusive treatment on workers’ mental and physical health.

As one of the unsympathetic lawyers Ms. Greenwald quoted, I’d like to respond.

I am not pro-bullying. In fact, I abhor bullying – in the workplace, in the schoolyard, anywhere. Anyone who tells you they are in favor of bullying likely is a bully themselves. I recognize that bullying can have negative effects on the victims. It is not acceptable to bully someone. And, employers who turn a blind eye to bullying—whether by managers, supervisors, and co-workers—are doing their businesses and their employees a disservice.

But, the issue is not whether bullying impacts its victims. We can all agree that it does. The issue is whether we need legislation that has the probability of turning every petty slight and annoyance in the workplace into a lawsuit. To quote Michael Fox on this very issue, “Once an employer has been sued, they have lost.” And that is the point. We can all agree that harassment “because of” [race, sex, religion, disability, etc.] needs some legal teeth behind it to change employers conduct. It’s not bullying for bullying’s sake, but instead bullying because of an inherent characteristic. Indeterminate bullying, though, should be self-regulating, and not a tort that has the likelihood of obliterating at-will employment by hamstringing supervisors and managers from supervising and managing.

So, what can (and should) employers be doing now about workplace bullying?

1. Review current policies. I would imagine that most handbooks already have policies and procedures that deal with workplace bullying. Do you have an open-door policy? A complaint policy? A standards of conduct policy? If so, your employees already know that they can go to management with any concerns—bullying included—and seek intervention.

2. Take complaints seriously. Whether or not illegal, reports of bullying should be treated like any other harassment complaint. You should promptly conduct an investigation and implement appropriate corrective action to remedy the bullying.

To the proponents of the anti-bullying laws: we opponents are not insensitive to the impact bullying can and does have on people. We simply ask that you also look at the flip-side—the impact these laws will have on businesses.

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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.