WIRTW #183 (the “to catch an (alleged) adulterer” edition)

Chris Hansen’s Dateline NBC series To Catch a Predator was one of my guilty pleasures. It was eye-opening to watch a bunch of creeps try to explain why they needed a bag full of condoms and a six-pack of beer for their play date with a 13-year-old girl. After three years of nabbing these (alleged) pedos, you’d think that Chris would have learned the power of the hidden camera. Think again. From the Baltimore Sun:

The NBC anchor was secretly filmed while on a date with someone who was most definitely not his wife.

According to the Daily Mail, Hansen has been carrying on a secret affair with a local TV reporter from Florida, and he was busted taking her to dinner at the Ritz-Carlton before returning to her apartment for the evening.

I hope they at least served Chris cookies and lemonade before they broke the news to him that he’d been busted.

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

Discrimination

• 15 Things You Need to Know About Disability Discrimination – from Screw You Guys, I’m Going Home
• Octogenarian Manager Strikes Blow Against Age Bias – from Workplace Fairness
• Age discrimination: Assumptions that lead to trouble – from HR Cafe
• EEOC Charges Abercrobmie & Fitch Violated Muslim Employee’s Rights – from Joe’s HR and Benefits Blog
• Getting Used to Sexual Harassment: “Boiling Frog” Syndrome – from Employment Lawyer Blog
• Is My Boss Racist, or Just Being a Good Manager? – from Evil HR Lady
• When are Employee Pregnancy Policies Considered Unequal Treatment? – from Virginia Employment Law Journal
• Guide to Dress Codes and Nondiscrimination Laws – from HireCentrix

Social Media & Workplace Technology

• Will Google+ Kill Facebook? – from Manpower Employment Blawg
• Facebook hits 750 million users milestone – from Boy Genius Report
• Don’t Let These Facebook Follies Happen To You – from Kashmir Hill’s The Not-So Private Parts
• Will Facebook Destroy Your Job Search? – from Forbes
• Facebook Post Not a “Serious” FLSA Compaint – from Philip Miles’s Lawffice Space
• Social Media and Discovery: Accessing Password Protected Material – from LE Blog
• LinkedIn Lessons for Employers: Part 6 – from Molly DiBianca’s Delaware Employment Law Blog
• Revenge Is Best Served On A 64 Inch TV Screen – from Workplace Diva

HR & Employee Relations

• Ohio a hotbed of biotech job growth – from Dayton Business Journal
• A Test to See If Anyone Actually Reads Your Employee Handbook... – from The HR Capitalist, Kris Dunn
• Stealing the Competition’s Employees – from Rob Radcliff’s Smooth Transitions
• Employee Perks Return Amid Fears of Poaching – from In Charge
• When Does Preparing to Compete Become Unlawful Competition? – from Texas Employment Law Update
• Screwing up at your new gig – from CareerDiva, Eve Tahmincioglu
• The Ethics of Sleep – from LaborRelated
• SHRM Las Vegas Day 3: How Zappos Tony Hsieh Wowed the HR Pros – from TLNT
• Things You Can’t Do on a Plane: Vol. 2 – from Inside Opinions: Legal Blogs
• Drug and Alcohol Testing of Employees in the Workplace – from Minnesota Labor & Employment Law Blog

Wage & Hour

• Could the Beastie Boys collect overtime pay in Pennsylvania? – from Eric Meyer’s The Employer Handbook Blog
• “Girls Gone Wild” Film Editor Seeks Unpaid Overtime Pay – from Wage & Hour - Development & Highlights
• Pizza Chain Fined For Violating Overtime Pay Laws And Retaliation – from Overtime Lawyer Blog
• Can You Terminate Someone the Day They Return From FMLA? – from Michael Haberman’s Omega HR Solutions
• Third Circuit Sustains Employee’s Removal for Lying About Reason for Absences – from The FMLA Blog

Labor

• Push to Repeal Ohio Law on Public Workers Gains Ground – from New York Times
• More About the NLRB’s Proposed Rules on So-Called “Quickie Elections” – from Dan Schwartz’s Connecticut Employment Law Blog
• NLRB to Hold Public Meeting on Proposed Representation Election Rule – from Labor Relations Counsel
• Major Changes to NLRB Rules Announced Today – from National Review Online
• NLRB Rule Would Burden Employers with Fast-Track Union Elections – from National Legal and Policy Center

More on Wal-Mart v. Dukes

• Too Big to Nail – from The Colbert Report
• Do We Need The Equal Rights Amendment In Light Of Wal-Mart? – from The Proactive Employer Blog
• The Supreme Court and Wal-Mart: Does diversity (of the Justices, that is) matter? – from David Yamada’s Minding the Workplace
• Justices “split largely along gender lines” – from Walter Olson’s Overlawyered
• Copland on Wal-Mart v. Dukes – from Ted Frank’s PointOfLaw Forum
• Wal-Mart v. Dukes: 7 Employment Takeaways from the Recent Supreme Court Ruling – from CPEhr
• More Thoughts on the Wal-Mart Decision – from Maryland Employment Law Developments

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Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

“You’re pregnant. We can’t hire you.”

There are some things you just shouldn't say to a pregnant job applicant—such as, “You’re pregnant. We can’t hire you.” But, that's exactly what a Phoenix, Arizona, Subway manager told Belinda Murillo when she inquired about the status of her job application. What’s even more amazing than the fact that he made the statement is that he admitted to it during her subsequent pregnancy discrimination lawsuit. The bonus points one typically receives in litigation for candor and honesty don’t apply when you’re copping to discrimination. Thus, it is not all that surprising that based on these facts, in EEOC v. High Speed Enterprise, Inc., the court granted summary judgment in favor of the employee.

The lesson from this case is to be reasonable when evaluating risk in defending a lawsuit. Faced with these facts, this case screamed for a settlement. Instead, this employer found itself ensnared in three years of litigation with the EEOC (including 17 depositions, numerous discovery disputes, and a vibrant motion practice), with a jury trial on damages still on the horizon. At the hourly wage of $6.50 Murillo would have earned as a Subway Sandwich Artist, this case should not have been that difficult to settle. Even in the face of these egregious facts, $15,000 should been more than enough to have resolved this case. The fact that it did not resolve reveals a breakdown in the plaintiff’s evaluation of value, the defendant’s evaluation of risk or value, or both.

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Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

“Despicable” does not always equal “severe or pervasive” in a racial harassment claim

In Williams v. CSX Transp. Co. (6/28/11) [pdf], the 6th Circuit upheld the dismissal of a racial harassment claim, confirming the long-standing principle that the anti-discrimination laws are not codes of workplace civility.

The harassment allegations in the lawsuit focused on a two-day period:

According to Williams, Jeff Wingo and Tim Magargle, two supervisors, were watching the Republican National Convention on television … when Williams entered and indicated she did not want to watch. Wingo allegedly told Williams that she was a Democrat only because she was a black woman; that unmarried women cannot “have the love of God in their heart[s]”; and that this country should “get rid of” Jesse Jackson and Al Sharpton because without those two “monkeys” the country “would be a whole lot better.” The following day, Williams alleges that Wingo told her that if she returned to school, she would not have to pay for her education because she was a single black mother.”

Williams also claimed that six months prior, Wingo also asked her why black people cannot name their children “stuff that people can pronounce, like John or Sue,” and told her that black people should “go back to where [they] came from.”

In upholding the trial court’s dismissal of the harassment claim, the Court distinguished between comments that are despicable and comments that are so severe or pervasive that they change the terms and conditions of one’s employment:

The statements were isolated, not pervasive: all but two occurred over a two-day period. Nor were they sufficiently “severe” for Williams to be able to prevail on a racially hostile work environment claim. Those statements—for example, calling Jesse Jackson and Al Sharpton “monkeys” and saying that black people should “go back to where [they] came from”—are certainly insensitive, ignorant, and bigoted. But they more closely resemble a “mere offensive utterance” than conduct that is “physically threatening or humiliating.”

Just because isolated statements might not subject an employer to liability does not mean they should be ignored. To the contrary, the fact that the employer in Williams ignored an anonymous call into its ethics hotline likely caused the lawsuit to be filed. Seven years and hundreds of thousands of dollars later, the employer prevailed on the racial harassment claim. I’ll let you decide which is the better course of action.

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Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

Public policy is in the eye of the beholder

Consider the following two wrongful discharge cases, both recently decided by different Ohio appellate courts, and think about which you believe presents a bigger risk for the employer:

1. In Morris v. Dobbins Nursing Home (6/20/11), a nursing home aide claimed that she was illegally terminated because she reported certain unlawful activities at the home to a state investigator during a health department audit. 

2. In Alexander v. Cleveland Clinic Foundation (6/16/11), a police officer claimed that the Cleveland Clinic wrongfully fired him after reports of several outbursts while working traffic control. In one incident, he struck a car that failed to yield at an intersection, and in another he yelled at bus driver to “learn how to f****** drive.”

The appellate courts decided both cases on the legal issue of whether the plaintiff presented a sufficiently clear public policy—manifested in a state or federal constitution, statute or administrative regulation, or in the common law—to support their respective wrongful discharge claims. Morris relied upon federal regulations that detail the safe operation of nursing homes; Alexander relied upon the requirement that police officers enforce state laws.

Public policy wrongful discharge claims often hinge on the combination of two influences: the creativity of the employee’s attorney to pigeonhole the circumstances surrounding the discharge into a state or federal constitution, statute or administrative regulation, or in the common law; and the court’s opinion of that particular public policy. The unpredictability of these claims underscores the need for employers to treat every termination like a potentially litigious event.

Unpredictable, you say? How many of you thought that the abusive police officer had the better case? Scary, right?

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Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

“Twitter is like making a press statement”

Social Media Today published some eye-opening stats on social media’s penetration into the public consciousness:

• One out of every six minutes spent online is on a social network
• 82 percent of 18-29 year olds use at least one form of social networking
• 46 million Americans check their social media profiles daily
• 96 percent of Americans use Facebook
• 73 percent of the US internet population visits Facebook each month
• People send approximately 140 millions tweets per day
• Yet, 41 percent of companies report they have no staff dedicated to social media

Given the increasing prevalence of social media in society, it is inevitable that abuse by employees will become more of a problem. In a recent survey of businesses, Osterman Research and Proofpoint (as reported by USAToday’s TechnologyLive Blog) concluded that the best strategy to combat employee misuse of social media is a combination of employee trust, social media policies, and educating employees on the use of their best judgment when communicating online.

As to this last point, comedian Louis C.K. said the following in a recent interview by CNN when asked for his thoughts on Twitter:

I mean, Gilbert Gottfried, he’s been saying a whole lot worse for years than he said on Twitter, and then when he said something on Twitter, he lost his job. He lost his livelihood! You know, it’s f---ed up. Twitter is like making a press statement. It’s very sober, and it’s not funny, and the s--- just comes out very dry, and people get upset.

Do your employees understand the risks they are taking by posting their unfiltered thoughts on Twitter, Facebook, and other social media sites? Do you know what your rights are as an employer when you learn that an employee has said something embarrassing to your organization on a social media site? These questions, and more, will be answered in the upcoming HR and Social Media: Practical and Legal Guidance, to be published in the coming weeks by Thompson Publishing. If you’re in Las Vegas at SHRM’s Annual Conference, please stop by Thompson’s booth (1468) for more information.

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Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

WIRTW #182 (the “Oscar the Grouch” edition)

Last summer, I asked a simple question: “Have we devolved into a society of assholes?” Today, I offer the empirical proof, courtesy of a survey conducted by Weber Shandwick and Powell Tate in partnership with KRC Research, as reported by Roger Simon at Politico.com (c/o Workplace Diva). The results are not surprising, but nonetheless sobering:

Some 86 percent of Americans say they have been victims of incivility…. About six in 10 Americans admit they themselves have been rude….

More than four in 10 Americans have experienced incivility in the workplace, with 65 percent blaming their bosses for it, and 59 percent blaming fellow employees. Younger employees were blamed by 34 percent, and access to the Internet by 25 percent (Is Angry Birds making people angrier?). Older employees did best, blamed for incivility by only 6 percent.

On the positive side, when asked to assign a degree of incivility to 25 American institutions, the workplace finished better than 21 others, sandwiched between President Obama and Oprah. Good company to be in, I suppose.

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

Wal-Mart v. Dukes

• Wal-Mart v. Dukes: What The Class-Action Decision Really Means for Employers – from Dan Schwartz’s Connecticut Employment Law Blog
• Why the Walmart Ruling is Good For Everyone – from Evil HR Lady
• Wal-Mart Stores, Inc. v. Dukes—A Sigh of Relief – from Michael Fox’s Jottings By An Employer’s Lawyer
• Wal-Mart Ruling Reinforces Fundamental Principles of Fairness – from The ChamberPost
• “$7 million to sue Wal-Mart”? – from Ted Frank’s PointOfLaw Forum
• Why Wal-Mart Matters, But Perhaps Less Than You Think – from Workplace Fairness
• Five Reasons Why the Walmart Decision Doesn't Affect Your Discrimination Case – from Donna Ballman writing at AOL.com

Social Media & Workplace Technology

• NLRB Continues Aggressive Response to Employers’ Social Media Policies It Deems Overbroad – from Social Networking Law Blog
• Update: NLRB Continues To Closely Probe Employer Terminations Following Employee Complaints On Social Media – from Hunton Employment & Labor Law Perspectives™
• Fired for having a sassy Web page? – from HR Cafe
• Now Your Embarrassing/Job-Threatening Facebook Photos Could Haunt You For Seven Years – from Kashmir Hill’s The Not-So Private Parts
• Prosecutor’s Facebook postings did not warrant overturning conviction – from Evan Brown’s Internet Cases
• How To Respond To A Social Media Crisis or Scandal: Don’t Be A Weiner – from Shear on Social Media Law
• Even More Social Stats – from Mark Toth’s Manpower Employment Blawg
• Grandparents Are Using Social Networks – from Social Media Today

Employee Relations & HR

• “So You Got My Letter” – from Walter Olson’s Overlawyered
• Hire Slow, Fire Fast – from Michael Haberman’s HR Observations
• Does Your Employment Separation Agreement Mean What You Think it Means? Michigan Court Addresses Meaning of “Disparagement” – from Michigan Employment Law Advisor
• Keeping The Pirates At Bay: How To Avoid And Deal With Poaching – from Trade Secret / Noncompete Blog
• Goodyear Tire Sues Continental Tire On Invevitable Disclosure Via New Hire Theory – from Trade Secrets Blog
• Protecting Trade Secrets: Confidential Information and Customer Relationships Audits – from Trade Secrets & Non-Compete Blog
• GOOD RIDDANCE! Just what can you say about that ex-employee of yours? – from Employment and Labor Insider
• What to expect from a background check – from The Work Buzz

Labor Relations

• BEWARE EMPLOYERS: Overhauled union-election rules may be near – from Eric Meyer’s The Employer Handbook Blog
• More on NLRB’s Proposal to Expedite Union Representation Elections – from Seth Borden’s Labor Relations Today
• NLRB Proposes Significant Changes to Election Process – from Washington D.C. Employment Law Update
• Obama Administration Issues Two Proposed Regulations Designed to Promote Pro-Union Agenda – from Employer Law Report
• Attorneys are more influential than they thought… or maybe the DOL is giving us too much credit – from HR HQ
• Big Brother Watching You? DOL Demands More Information from Employers About Union Avoidance Activities – from Vorys on Labor

Wage & Hour

• Conjunction Junction, What’s Your Function? The Ninth Circuit Finds Junior Accountants And Other Non-Licensed Professions May Be Exempt – from The Wage and Hour Litigation Blog
• A Brief FLSA Refresher Course – from Employment Essentials
• Firing replacement workers to allow striking employees to return is not a “mass layoff” under WARN Act – from Employment Law Matters
• Happy Father’s Day: Dad Claims He Was Terminated After Taking FMLA Leave for Bonding with Newborn Child – from FMLA Insights

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Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

EEOC holds public meeting on 21st century hiring discrimination … and misses the biggest issue

There is perhaps no issue more important to the topic of hiring in the 21st century than social media. Yet, yesterday the EEOC held a public meeting entitled, “Disparate Treatment in 21st Century Hiring Decisions,” and completely ignored this key issue.

In fact, it’s hard to find much of anything new or cutting edge presented by the EEOC at the meeting. Instead, the meeting provided a rehash of longstanding principles against hiring discrimination. Nevertheless, the advice provided by management-side attorney Grace Speights to employers to help avoid hiring discrimination is worth repeating and taking to heart:

1. Develop strong EEO policies, train managers on the policies and the law, and hold managers responsible for failing to follow the policies.
2. Increase HR’s participation and oversight in the hiring and promotion processes as a form of checks and balances to monitor compliance with company policies and legal requirements.
3. Implement diversity training for employees.
4. Identify and remove perceived barriers to hiring and promotion, such as by advertising open positions in sources that reach a more diverse applicant pool.
5. Conduct periodic self-analyses to determine whether current employment practices are tied to job requirements, job performance, and business necessity.
6. Foster training and mentoring programs that provide all workers the opportunity, experience, and information necessary to qualify for promotions.

If you want to learn more about the role of social media in the vetting and hiring of employees, and the impact the discrimination laws have on these practices, pick up a copy of HR and Social Media: Practical and Legal Guidance, available from Thompson Publishing in the coming weeks. And, if you find yourself at SHRM 2011 in Las Vegas next week, stop by Thompson's Booth (#1468) for more information.

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Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

Wal-Mart v. Dukes does not equal barefoot and pregnant

I thought that I had my final say on Wal-Mart v. Dukes yesterday. Then, I read more of the commentary on the decision. For example, this clip from MSNBC argued that the Wal-Mart case marks the end of women’s equality in the workplace:



Or consider this quote, courtesy of Joanne Bamberger at the Huffington Post:

The 5-4 decision that is at the heart of this national employment crisis is the over-stepping of the right wing of the court to stretch a procedural case to change substantive law in a way that adversely impacts today's majority of breadwinners—women.

There is no doubt that by limiting class actions, Wal-Mart was a big win for businesses. But let’s not confuse what Wal-Mart is for what it is not. It is not a death blow to women’s rights in the workplace. It will not eliminate all of the good that Title VII has done for women (and its other protected classes). It will not take us back in time to the days of June Cleaver and Harriet Nelson.

Writing for the majority, Justice Scalia said, “[L]eft to their own devices most managers in any corporation—and surely most managers in a corporation that forbids sex discrimination—would select sex-neutral, performance-based criteria for hiring and promotion that produce no actionable disparity at all.” Justice Scalia might be three decades removed from the workplace, but he’s not off base. In 2011, the overwhelming majority of companies do not intentionally discriminate. Companies may have rogue supervisors, managers, and even executives, who discriminate, for which their companies can be held responsible. Indeed, in a company as big as Wal-Mart, it would be surprising if there weren’t employees who suffered discrimination. As an institutional matter, though, most companies try to do right by their employees by combating workplace discrimination, even Wal-Mart.

So let’s not overreact to the Wal-Mart decision by arguing that its impact will take women back to the stone age, or, worse, the 1950s. Such knee-jerk overreactions unnecessarily polarize us into positions that do nothing to further the debate over the real issue—eliminating workplace discrimination.

The 7 key points for employers from the Supreme Court’s Wal-Mart v. Dukes opinion

Yesterday, the Supreme Court unanimously reversed the certification of the class action in Wal-Mart Stores, Inc. v. Dukes. Recall that Dukes sought the certification of a nationwide class of 1.5 million female Wal-Mart employees allegedly denied pay and promotions because of a corporate-wide “policy” of sex discrimination. The reversal was expected; the unanimity of the result (albeit not of the reasoning), however, was not.

The majority grounded its decision on the lack of commonality among the potential class members. Here are the seven key takeaways from the Court’s opinion:

   1. Commonality requires more than an alleged common violation of the same law:

“Quite obviously, the mere claim by employees of the same company that they have suffered a Title VII injury, or even a disparate impact Title VII injury, gives no cause to believe that all their claims can productively be litigated at once. Their claims must depend upon a common contention—for example, the assertion of discriminatory bias on the part of the same supervisor.” [p. 9]

   2. Class certification often requires some analysis of the merits of the underlying claims:

“Here respondents wish to sue about literally millions of employment decisions at once. Without some glue holding the alleged reasons for all those decisions together, it will be impossible to say that examination of all the class members’ claims for relief will produce a common answer to the crucial question why was I disfavored.” [pp. 11-12]

   3. When a company has an announced policy against discrimination, and the alleged discrimination consists of management’s deviation from that policy, it is difficult, if not nearly impossible, to find commonality among those individual decisions:

“[L]eft to their own devices most managers in any corporation—and surely most managers in a corporation that forbids sex discrimination—would select sex-neutral, performance-based criteria for hiring and promotion that produce no actionable disparity at all. Others may choose to reward various attributes that produce disparate impact—such as scores on general aptitude tests or educational achievements…. And still other managers may be guilty of intentional discrimination that produces a sex based disparity. In such a company, demonstrating the invalidity of one manager’s use of discretion will do nothing to demonstrate the invalidity of another’s. A party seeking to certify a nationwide class will be unable to show that all the employees’ Title VII claims will in fact depend on the answers to common questions.” [p. 15]

   4. The larger the proposed class, the more difficult it is to establish a practice common to the class:

“In a company of Wal-Mart’s size and geographical scope, it is quite unbelievable that all managers would exercise their discretion in a common way without some common direction.” [pp. 15-16]

   5. General statistical evidence is insufficient to establish commonality, without something extra to tie those stats to an issue common to the class:

“Other than the bare existence of delegated discretion, respondents have identified no ‘specific employment practice’—much less one that ties all their 1.5 million claims together. Merely showing that Wal-Mart’s policy of discretion has produced an overall sex-based disparity does not suffice.” [pp. 17-18]

   6. Anecdotal evidence also must tie narrowly to a common issue:

“Respondents filed some 120 affidavits reporting experiences of discrimination—about 1 for every 12,500 class members—relating to only some 235 out of Wal-Mart’s 3,400 stores…. Even if every single one of these accounts is true, that would not demonstrate that the entire company ‘operate[s] under a general policy of discrimination,’ … which is what respondents must show to certify a companywide class.” [p. 18] “A discrimination claimant is free to supply as few anecdotes as he wishes. But when the claim is that a company operates under a general policy of discrimination, a few anecdotes selected from literally millions of employment decisions prove nothing at all.” [p. 18, fn. 9]

   7. Class action damages that must be individually litigated (such as backpay) cannot be litigated in a class action that seeks injunctive relief as its unifying point across the class:

“When the plaintiff seeks individual relief such as reinstatement or backpay after establishing a pattern or practice of discrimination, ‘a district court must usually conduct additional proceedings … to determine the scope of individual relief.’ … At this phase, the burden of proof will shift to the company, but it will have the right to raise any individual affirmative defenses it may have…. The Court of Appeals believed that it was possible to replace such proceedings with Trial by Formula…. [A] class cannot be certified on the premise that Wal-Mart will not be entitled to litigate its statutory defenses to individual claims.”

What does all this mean for businesses? It means that class actions alleging employment law violations must be narrowly tied to a specific policy or practice. It means that the best defense against a class action might be a policy directing decision-makers to follow the law. It means that class actions in cases alleging intentional discrimination just became a lot more difficult to establish, and that going forward we will see many more certified classes in disparate impact cases than in disparate treatment cases.

Most importantly, it is not the “unmitigated disaster for historically oppressed employees seeking large-scale workplace justice against their employers,” as argued by Professor Paul Secunda on the Workplace Prof Blog. Instead, I agree with Walter Olson, writing at Cato at Liberty who summed it up best:

To sweep hundreds of thousands of workers (or consumers or investors) into a class as plaintiffs even if they personally have suffered no harm whatsoever— to use sexism at Arizona stores to generate back pay awards in Vermont, and statistical disparities to prove bias without allowing defendants to introduce evidence that a given worker’s treatment was fair—bends the class action mechanism beyond its proper capacity. Also to the point, it is unfair.

Dukes means that corporate America can exhale a huge sigh of relief—a Court that has been surprisingly employee-friendly saved its biggest decision to flex its pro-business muscles.

The Wal-Mart Stores, Inc. v. Dukes opinion is available for download as a pdf form the Supreme Court’s website.

BREAKING NEWS: SCOTUS reverses class certification in Dukes v. Wal-Mart

Just a few minutes ago, the Supreme Court delivered its opinion unanimously reversing the 9th Circuit’s class certification in the historically large Dukes v. Wal-Mart sex discrimination class action.

The full opinion is available for download here [pdf].

I will share my thoughts on the opinion tomorrow, but here’s a quick taste, via the opinion’s syllabus:

Rule 23(a)(2) requires a party seeking class certification to prove that the class has common “questions of law or fact.” Their claims must depend upon a common contention of such a nature that it is capable of classwide resolution—which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke. Here, proof of commonality necessarily overlaps with respondents’ merits contention that Wal-Mart engages in a pattern or practice of discrimination. The crux of a Title VII inquiry is “the reason for a particular employment decision,” … and respondents wish to sue for millions of employment decisions at once. Without some glue holding together the alleged reasons for those decisions, it will be impossible to say that examination of all the class members’ claims will produce a common answer to the crucial discrimination question.

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

The countdown is on for HR & Social Media

Last week, the city of Vancouver erupted in violence after the Bruins eliminated the Canucks in the Stanley Cup Finals. Connor Mcilvenna, a suburban Vancouver construction worker, posted several pro-riot status updates on his Facebook wall, such as:

and

He also had his employer, Rite Tech Construction, listed on his Facebook profile. When the company learned of the comments, it fired Mcilvenna because of the potential impact on its reputation. CTV News quotes the company’s owner, Justin Reitz:

I just didn't feel like what was said was appropriate, and I didn't want any affiliation towards my company with the things he said on Facebook…. I had over 100 emails and out of the 100 emails, close to 30 of them were copies of his Facebook page which he sent out during the riots.

We are within a week or two of the publication of HR and Social Media: Practical and Legal Guidance, written by me and an all-star team of labor & employment blawgers and social media adopters. If you are attending SHRM’s Annual Conference in Las Vegas from June 26-29, visit Thompson at booth 1468 to order your copy. If you want to learn about your company’s rights in respect to employees’ social media activities, and how to protect your business from employees like Connor Mcilvenna, this book is a resource you cannot do without.

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

WIRTW #181 (the “Spoonie Luv” edition)

Last week, Tracy Morgan got himself in trouble over a stand-up performance, during which he commented, among other things, that if his son was gay he’d stab him. Taken out of context, Morgan’s comments are hateful and contemptible. Taken in context, you could view them as in poor taste, biting satire on homophobia, or both. For his part (and likely in an attempt to save his job on 30 Rock following the public backlash), Morgan has apologized.

I bring up this story to highlight the following—if the court of public opinion can crucify a stand-up comic for words he uses in jest while performing on a stage, imagine what a jury comprised of those same people could do to your business in a lawsuit over words used in your workplace.

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

Discrimination

• To Prevent Lawsuits—Think the Way a Jury Thinks – from HR Daily Advisor
• Juries get it right 95% of the time? – from Deliberations
• Bayer Sexual Discrimination: Stop the Mommy Wars – from Evil HR Lady, Suzanne Lucas
• Weight discrimination - employers should be mindful of increasing legislation prohibiting this – from Employment Law Bits
• Mixed Ruling In EEOC Religious Discrimination Case Involving EEOC And Private Litigant Claims – from Workplace Class Action Litigation
• Halfway Measures Won’t Spare Employer Liability for Sexual Harassment – from Joe’s HR and Benefits Blog
• Does Title VII require work-life balance? – from Ted Frank’s PointOfLaw Forum
• Fact or fiction: Federal law recognizes “reverse age discrimination” – from Eric Meyer’s The Employer Handbook Blog
• The Cat’s Paw Strikes Again: Court Extends Cat's Paw Theory to Age Discrimination Claims – from Washington Workplace Law
• How the OFCCP’s Thirst For Data Will Impact You – from Stephanie Thomas’s The Proactive Employer Blog

Social Media & Workplace Technology

• 4 tips for using Facebook legally to conduct background checks – from Joan Goodchild at Network World
• Google Offers Up A Free ‘Online Reputation Monitoring’ Tool – from Kashmir Hill’s The Not-So Private Parts
• Employer Challenges to Developing and Enforcing Social Media/Web 2.0 Policies – from Workplace Privacy Counsel
• The New Danger of Limiting Employees’ Speech on Social Media Sites – from The Legal Intelligencer
• 5 Examples of Corporate Social Media Policies – from oneforty
• Why Can’t Public Figures Stay Out of Trouble on Twitter? – from Social Media Today
• When Social Media Is Abused, Can It Be Part of the Solution, Too? – from Augmented Legality
• Social Media Ethics, Politics, the First Amendment, and Twitter – from Shear on Social Media Law

Wage & Hour

• What To Do When the DOL Makes an Unannounced Visit – from Wage & Hour Insights
• The Other Wal-Mart Class Action – from Philip Miles’s Lawffice Space
• The Walmart Wage & Hour Train Rolls On – from Tim Eavenson’s Current Employment
• Walmart, Best Buy punch out time clock – from Eve Tahmincioglu’s CareerDiva
• What Is A “Workweek”, And Why Should You Care? – from Wage and Hour Laws Blog
• Fourth Circuit Affirms Judgment that Donning and Doffing Activities Are Compensable “Work” Under the FLSA – from Employment Class Action Blog

HR & Employee Relations

• Small Business HR: Yes There Are A Lot of Laws You Must Comply With – from Michael Haberman’s Omega HR Solutions
• For a Breach of Restrictive Covenant, Court Says No To Extending Duration As Remedy – from Dan Schwartz’s Connecticut Employment Law Blog
• 3 Things the LeBron James Flameout Shows Us About Workplace Dynamics – from TLNT
• Bankruptcy Found on Background Check is Fair Game – from Nick Fishman at employeescreenIQ Blog
• 8 Things Every Employee Should Know About Trade Secrets – from Screw You Guys, I’m Going Home
• Eleventh Circuit Holds Former Employer Should Have Used Present Perfect Tense to Restrain Employee In Disclosure of Confidential Information – from Trade Secrets Blog
• Two Key Considerations When Performing Background Checks – from Workplace Insights

Labor Relations

• Alarming Aspects of the NLRB’S Case Against Boeing: Part 1 – from Employment Essentials
• Media Round-Up: NLRB Complaint Against Boeing – from Seth Borden’s Labor Relations Today
• Senator DeMint Files FOIA Request Against NLRB for Information on Boeing Complaint – from Wisconsin Employment & Labor Law Blog
• Apple Store employee moves to create union – from Boy Genius Report

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

EEOC to explore disparate treatment in hiring

The EEOC has spent a lot of its time lately examining employers’ hiring practices. For example, it has held public meetings looking at whether certain neutral hiring practices—such as the use of credit, employment status, and criminal and arrest records—have a disparate impact based on race. It is also currently litigating a class action in federal court in Cleveland challenging an employer’s use of credit as a hiring criteria.

Next week, the EEOC will turn its attention from unintentional hiring discrimination to intentional hiring discrimination. It has announced that it will hold a public meeting entitled, Disparate Treatment in 21st Century Hiring Decisions. Little else is known about this meeting, including the specific hiring tactics and criteria the EEOC will examine. The use of “21st century,” however, suggests that the EEOC’s agenda may include current cutting-edge hiring practices, such as the use of social media by employers to vet potential candidates (a topic I’ve covered before).

I will have much more to say about this important topic after the EEOC publishes its agenda and speakers' commentary.

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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 does the Howard Stern Show handle sexual harassment training?

Last week, Howard Stern’s long-time producer Gary Dell’Abate paid Conan O’Brien a visit. Among the topics they discussed was how The Howard Stern Show handles sexual harassment training for its employees. The relevant portion runs from 4:16 until 5:29.

I guess if you take a job with Howard Stern you know what you’re getting yourself into?

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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 to consider statute of limitations in workers comp retaliation cases

Ohio Revised Code section 4123.90 prohibits employers from taking any adverse action against an employee who files a claim, or institutes, pursues, or testifies in any proceeding under the workers’ compensation act. This statute is unique in that is has a two-stage statute of limitations:

1. Within 90 days “immediately following” the adverse action, the employer must receive written notice of a claimed violation from the employee; and
2. The lawsuit must be filed within 180 days “immediately following” the adverse action.

Both steps are required, and an employee’s failure to meet either deadline is fatal to a retaliation claim.

In Lawrence v. City of Youngstown (2/25/11), the Mahoning County Court of Appeals took up the issue of the meaning of “immediately following” in regards to the 90 and 180 day requirements. The court recognized an even split among Ohio’s appellate courts. Half of the courts that have considered the issue concluded that the 90 and 180 day requirements do not begin to run until the employee receives notice of the termination or other adverse action. The other half concluded that the effective date of the termination or other adverse action controls.

The Lawrence court sided with the latter, concluding:

This language clearly references the date of discharge, not notice of discharge. If the General Assembly had intended the time periods to begin to run upon notice of discharge, the statute could have easily been written to indicate as such. Accordingly, we find that the time limits begin to run on the effective date of discharge.

Last week, the Ohio Supreme Court agreed to hear this case [pdf] and resolve the split. Ohio employers should expect clarity on this important issue in the next 12 – 15 months.

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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.

“He grabbed her, threw her to the floor, pulled up her shirt, masturbated and ejaculated on her” = $95 million (wow)

The acts of sexual harassment alleged by Ashley Alford against her supervisor, Richard Moore, in Alford v. Aaron Rents, Inc. are among most horrific I’ve ever encountered (taken from the court’s opinion denying the employer’s motion for summary judgment):

• Shortly after Alford began working at Aarons, beginning in November 2005, Moore began intentionally and inappropriately touching her.
• Moore called Alford degrading pet names, such as “Trixie” and “Trix.”
• Moore gave Alford unwanted gifts for which he demanded “sucky-sucky.”
• Moore grabbed Alford by her ponytail, unzipped his pants, pulled her head back and hit her in the head with his penis, twice.
• Moore grabbed Alford, threw her to the floor, pulled up her shirt, masturbated, and ejaculated on her.

As reprehensible as these allegations are, what is perhaps more stunning is that Alford’s employer ignored her complaints for more than a year, and only took action after she involved the police.

Last week, a jury added up all of these facts and returned with one of the largest verdicts ever in a single-plaintiff harassment case—$95 million. The St. Louis Post-Dispatch quoted a representative of the company, who called the verdict “the work of a ‘classic runaway jury.’” I agree. The conduct proven at trial was horrendous, but no single-plaintiff employment case is worth $95 million. 

Nevertheless, this verdict underscores the importance of prompt and thorough investigations into complaints of harassment by employees. The jury did not subject the employer to this verdict because of the acts of a rogue supervisor, but because the company did not do anything about him when the plaintiff complained.

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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 #180 (the “pixie dust” edition)

Last month, my family vacationed at Disney World. While the trip was planned last fall, it was a much needed (almost) week away after our ordeal in February. One of our first stops was to meet Buzz Lightyear at the Magic Kingdom. I’m sure lots of 3-year-old boys idolize Buzz, but I’m not sure anyone loves Buzz as much as my son does.

I mentioned to the PhotoPass photographer to take as many pictures as he could, explaining that Donovan had spent 3 weeks in the hospital, how much Buzz means to him, and how much him meeting Buzz meant to us. A Cast Member overheard my story, pulled me aside, and gave me a voucher for a free 8x10 picture. That voucher probably cost Disney 50 cents, yet it proved invaluable to my family that someone thought to do something nice for us.

Let this story be a lesson for employers—the little things do matter. Taking the time to spread some “pixie dust” on your workers once in a while should pay exponential dividends.

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

Weinergate

• What if you were Anthony Weiner’s boss? – from Rob Radcliff’s Smooth Transitions
• Weiner and the Same Old Social Media Lessons – from Philip Miles’s Lawffice Space
• Your Company Firewalls Are Meaningless to Your Employees. Time for a Plan B. – from Daniel Schwartz’s Connecticut Employment Law Blog
• How to Recover from a Blunder – from Harvard Business Review
• Dirty Pictures And The Internet: A Guide for Dummies – from Kashmir Hill’s The Not-So Private Parts
• Social Media Crisis Management, Weinergate, Politics, Football, and the Law – from Shear on Social Media Law
• Lessons from Weinergate – from Manpower Employment Blawg
• Women shouldn’t blame Weiner from Eve Tahmincioglu’s CareerDiva
• Another Day, Another Person Ruins Their Career On Twitter – from Chris Penttila’s Workplace Diva
• Congressional Tweet-mageddon After Weiner Scandal – from AllThingsD

(Non-Weiner-related) Social Media & Workplace Technology

• Social Recruiting a Growing Hotbed for Discrimination Claims? – from Newton Software Blog
• While employers screen job applicants on social media, lawyers assess the risk – from AllBusiness
• Electronic “Redactions” Not Always Effective: Greater Caution In Dealing With Sensitive Materials In Trade Secret Cases Necessary – from Trading Secrets
• Employee Rights and Social Media – A Summary of NLRB Enforcement Activity – from Augmented Legality

Discrimination

• The Age Discrimination in Employment Act (ADEA): Not Your Standard Discrimination Law – from Michael Haberman’s Omega HR Solutions
• Supreme Court limits an employer's ability to recoup attorney’s fees – from Eric Meyer’s The Employer Handbook Blog
• Anti-Gay Harassment Claims Need to Be Investigated – from Labor & Employment Law Perspectives
• Federal Court Reels In EEOC’s Fishing Expedition – from Employer Law Report
• Summer Jobs, Sexual Harassment – from Nolo’s Employment Law Blog
• The unemployed: a new protected class? – from John Holmquist’s Michigan Employment Law Connection
• “Acrophobic bridge worker protected by ADA” – from Walter Olson’s Overlawyered
• EEOC proposes records rule on Genetic Information Nondiscrimination Act – from Judy Greenwald at Business Insurance
• 5 signs that your sexual harassment case may be a dog – from Employment and Labor Insider
• Sixth Circuit Grants Rehearing En Banc in the Lewis Case Involving Discrimination Claims Under the ADA – from Sixth Circuit Appellate Blog

HR & Employee Relations

• America’s Pastime Part II: Outsourcing for Talent – from Rob Schwartz’s Fairness Matters
• State of Ohio Moves to Ban Credit Reports – from Nick Fishman at the employeescreenIQ Blog
• Employment Background Checks: Legal Considerations – from Small Business Support
• Should You Get Naked With Your Boss – from Evil HR Lady, Suzanne Lucas
• Point/Counterpoint - Should You Automatically Pay Severance to Anyone You Fire? – from Fistful of Talent
• Eight Threats and Traps for HR in Today’s Legal Environment – from HR Daily Advisor
• Modern Vacations, or Why You Never Really Get Away From Work Anymore – from TLNT
• How to Steal Employees – from Portfolio.com

Wage & Hour

• Are the FLSA’s Enterprise Coverage Requirements Outdated in Today’s Economy? – from Overtime Law Blog
• Juries Hand Employers Class Action Wage and Hour Victories – from Employment Class Action Blog
• FMLA, COBRA, ADA, EEOC-Not Necessarily In That Order – from Work Blawg
• Policy Limits on Vacation Travel During FMLA Leave Upheld – from The FMLA 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.

Ohio recognizes public policy tort for workers compensation retaliation in limited circumstances

Ohio has a specific statute against workers’ compensation retaliation—R.C. 4123.90. It prohibits an employer from retaliating against an employee who files a claim, or institutes, pursues, or testifies in any proceeding under the workers’ compensation act.

In Bickers v. W. & S. Life Ins. Co. (2007), the Ohio Supreme Court concluded that an employee who is fired while receiving workers’ compensation benefits is limited to brining a retaliation claim under the statute, and cannot pursue a common law wrongful discharge cause of action. This distinction is significant, because the workers’ compensation retaliation statute has limited remedies—reinstatement, back pay, and reasonable attorneys fees. The remedies is a common law wrongful discharge claim, however, are unregulated, and include compensatory and punitive damages.

In Sutton v. Tomco Machining, Inc. (6/9/11) [pdf], the Ohio Supreme Court considered whether R.C. 4123.90 also precludes an injured employee who suffers retaliation before filing a workers’ compensation claim from filing a common law wrongful discharge claim.

The facts of the case are pretty remarkable. Within an hour of DeWayne Sutton’s report of a workplace back injury to Tomco’s president, and before he could file a workers’ compensation claim for the injury, the company fired him. The employer argued that Sutton did not have a remedy. It correctly argued that R.C. 4123.90 did not provide a remedy because he had not filed a workers’ compensation claim. It also argued that Bickers precluded the common law wrongful discharge claim.

The Court concluded that because Sutton did not have a remedy available under the statute, he could pursue his common law wrongful discharge claim:

We find that the General Assembly did not intend to leave a gap in protection during which time employers are permitted to retaliate against employees who might pursue workers’ compensation benefits…. The General Assembly certainly did not intend to create the footrace …, which would effectively authorize retaliatory employment action and render any purported protection under the antiretaliation provision wholly illusory. Therefore, it is not the public policy of Ohio to permit retaliatory employment action against injured employees in the time between injury and filing, instituting, or pursuing workers’ compensation claims.

The Court, however, did not permit Sutton to seek the full panoply of tort remedies. Instead, it balanced the limited remedies of the Workers’ Compensation Act against right of employees to be free from retaliation:

The compromise established by the General Assembly must govern the relief available to employees, like Sutton, who suffer retaliatory employment action after an injury and before they have filed, instituted, or pursued a workers’ compensation claim, just as it governs the relief for employees who suffer retaliatory employment action after they have filed, instituted, or pursued a workers’ compensation claim. Accordingly, we hold that Ohio’s public policy as established by the legislature is to limit remedies for retaliatory employment actions against injured employees to those listed in R.C. 4123.90.

This case strikes the right balance. Even the most ardent employer-side advocate would have a hard time arguing for a loophole that would preclude any remedy for an employee retaliated against. By limiting the remedies to those set forth in the statute, the Court is protecting the balance created by the workers’ compensation system into which employers are required to buy.

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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.

EEOC and employers differ on the use of neutral maximum leave of absence policies

As I reported earlier this week, yesterday the EEOC held a public meeting on the use of leave as a reasonable accommodation. Opinions differed sharply on whether an employer can satisfy its obligations under the ADA by implementing a neutral leave of absence policy that caps a maximum allowable leave (for example, a policy that says, “Employees who do not return to work following a maximum of six months leave will be presumed to have resigned,” or “Employees will be entitled to a maximum of six months of unpaid medical leave in appropriate circumstances, and thereafter the company cannot hold the employee’s position open or guarantee a position to which the employee can return”).

John Hendrickson, an EEOC Regional Attorney who litigated this issue in the high-profile EEOC v. Sears Roebuck & Co. case (which resulted in a $6.2 million settlement), offered the following five observations on the EEOC’s view of these policies:

1. An inflexible period of disability leave, even if substantial, is not sufficient to satisfy an employer’s duty of reasonable accommodation.
2. The appropriate length of leave under the ADA requires an individualized analysis—even when the employer has a generous fixed leave policy.
3. Separating leave administration—like the administration of worker’s compensation benefits or disability benefits—from ADA administration is risky for employers.
4. Clear lines of communication regarding reasonable accommodations are critical not only with employees on leave but also with their health care providers, supervisors and managers.
5. The Commission occupies a unique role in litigating these cases.

Management-side attorney Ellen McLaughlin argued the employer’s position:

One way employers attempt to control or manage the impact of employee leaves of absence on their business is to institute a neutral maximum leave of absence policy that sets a maximum duration for which an employee can be away from work…. The intent of these neutral leave programs is to provide employers with some level of control over their ability to manage their headcount and business operations. Employers know in advance how much time off an employee may take, and can track when an employee approaches that maximum in order to provide it an opportunity to begin planning coverage/replacement options sooner…. 

The case law is extremely undeveloped on the maximum leave issue, but what exists establishes that a universally applied maximum leave policy is not, per se, violative of the ADA…. In the midst of this confusion, the EEOC has begun aggressively litigating against employers with neutral maximum leave policies.

I echo Ellen’s sentiments that neutral leave policies provide employers the necessary flexibility to run their businesses in the face of leaves of uncertain duration. The EEOC needs to better consider the needs of the business community and provide greater guidance on this issue.

Employers, however, need to be practical and tread very lightly around these issues until the EEOC softens its position. The agency is aggressively pursuing businesses that enforce these neutral leave policies to the detriment of disabled employees. Unless you want to end up in the EEOC’s crosshairs, I recommend the following:

1. Avoid leave policies that provide a per se maximum amount of leave, after which time an employee loses his or her job.
2. Engage in the interactive process with an employee who needs an extended leave of absence, which includes the gathering of sufficient medical information and a definitive return to work date documented by a medical professional.
3. Involve your employment counsel to aid in the process of deciding when an extended leave crosses the line from a reasonable accommodation to an undue hardship.
4. Open your workplace to disabled employees to demonstrate to the EEOC, if necessary, that you take your ADA obligations seriously.
5. You should document all costs associated with any extended unpaid leaves (modified schedules, added overtime, temporary hires, lost productivity, etc.) to help make your undue hardship argument, if needed.

Remembering “A, E, I, O, and You” will help you avoid the defense of a costly disability discrimination lawsuit.

A love letter to Connecticut (or, a modest proposal to bring jobs to Ohio)

Dear Connecticut,

I read on the Connecticut Employment Law Blog that your state legislature passed its controversial paid sick leave bill. Your Governor supports the measure and is expected to sign it. Beginning January 1, 2012, the law will mandate that many of your state’s employers with 50 or more employees provide 40 hours per year of paid sick leave to most full-time employees.

A few years ago, we Ohioans expected to vote on a similar measure via a statewide referendum. Our then-Governor (a Democrat) recognized the detriment such a measure would pose to our state’s ability to attract and retain the businesses we so sorely need. He struck a deal with the sponsoring labor unions pulling the Health Families Act from the ballot. Our state’s economy still isn’t great, but it’s better than it would have been if the Act had passed three years ago.

Connecticut Republican Representative John Rigby shares the same concerns about your state’s ability to attract and retain businesses (as quoted on NPR.org), “They’re going to have to shed jobs…. They’re going to have to let people go. They’re going to have to make a decision about whether to open the next brew pub in Connecticut or in Massachusetts or Rhode Island—states that are considered more business-friendly than our state.” Adds Kia Murrell, assistant counsel for the Connecticut Business & Industry Assoc. (as quoted on MSNBC.com), “Today is the worst possible time to add one more thing…. It’s one more nail in the proverbial coffin.”

Connecticut, when your businesses are ready to flee to avoid this stifling mandate, we are happy to take them and the jobs they bring along.

Love,

 

Ohio, your (not quite) neighbor to the West

P.S.: Please help support a fellow labor & employment blogger, Daniel Schwartz, and click over to his Connecticut Employment Law Blog, which he re-launched yesterday with a brand new look and some cool new features.

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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.

Class actions: the smaller you are, the bigger the risk

At some point in the next several weeks, the Supreme Court will deliver its long-awaited opinion in Dukes v. Wal-Mart. Recall that Dukes will decide the propriety of the class certification of the largest sex-discrimination case ever (1.5 million employees seeking billions in damages).

As we wait for the Dukes decision, plaintiffs continue to file large discrimination class actions. The latest was filed against accounting giant KPMG. From Law360:

A former senior manager at KPMG LLP filed a putative class action Thursday in New York that claims the accounting giant shuts out women and working mothers from its upper ranks, seeking $350 million in damages.

Plaintiff Donna Kassman argues that KPMG elbows women out from the partnership track and frowns on those who use maternity leave or flexible schedule benefits, capping the number of women in management positions at well below industry standards.

Your workplace may not large enough and your employees may not earn enough for you ever to be exposed to $350 million in risk. Risk, however, is proportional to size. KMPG reported $20.6 billion in revenue in 2010. $350 million is a mere 1.7% of its annual revenue. Consider, however, that the average retail and service small business has $6,000,000 in annual revenue. You better believe that a class action would place your small business at risk to lose more than $101,400 (or 1.7%). In other words, the smaller your business, the more at risk you are from potential class actions.

While $350,000,000 is an astronomical number, it is a number that a $20 billion business can absorb. On the other hand, a class action against a small business is often “bet the company” litigation. A $1,000,000 judgment against a $6,000,000 company could easily put that company out of business.

As we wait for the Supreme Court’s Dukes opinion, consider what proactive steps you can take in your business to help insulate you from potential class actions that could put the continued viability your business in jeopardy.

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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.

EEOC to consider the use of leave as a reasonable accommodation

I have previously discussed how the ADA may require that employers provide unpaid leaves of absence to disabled employees of more than 12 weeks:

• Has the ADA swallowed the FMLA for employee medical leaves?
• ADA may require leaves of absence beyond FMLA mandates

Later this week, the EEOC will hold a public meeting to discuss this very issue. According to the EEOC’s press release:

The U.S. Equal Employment Opportunity Commission (EEOC) will hold a public meeting on Wednesday, June 8, at 9:30 a.m. (Eastern Time), … to examine the use of leave as a reasonable accommodation…. The Commission will hear from invited panelists on the appropriate use of disability leave as a reasonable accommodation and on complying with relevant regulations

Considering that the Agency’s agenda includes a discussion of “how to comply with the law and appropriately permit leave to employees,” I do not expect to hear any paradigm-shifting revelations. Instead, this meeting should merely highlight for employers the importance of considering an unpaid leave of absence as a reasonable accommodation, and the illegality of inflexible and hard-capped leave of absence policies.

Nevertheless, the EEOC is using these public meetings to highlight regulatory and enforcement issues it is prioritizing (e.g., the use of employment status and credit history as hiring criteria, and the plight of older workers). Because the EEOC appears to be targeting leaves of absence for heightened enforcement, employers should pay special attention to this issue. I will have a full summary of the EEOC’s public meeting later this week.

[Hat tip: Workplace Prof Blog]

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

WIRTW #179 (the “but, I have a black friend” edition)

At Salon.com this week, Teresa Cotsirilos asks, “Is racism on the way out?” According to a website I discovered (thanks to @EPetersonSHRM), the answer is clearly “no.” I'm not RACIST, but... posts examples of just how racist people really are, by searching public Facebook posts for the phrase “not racist but”. Some examples, you ask?

–or–

The real question is whether we should be surprised that people this ignorant don’t have enough sense to lock down the privacy settings on their Facebook accounts.

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

Discrimination

• Think Sexism Doesn’t Exist? Read This – from Screw You Guys, I’m Going Home
• Fired Cocktail Waitresses Sue, Claim Casino Wanted Sexier and Younger Workers – from ABA Journal Daily News
• Bridge Worker With Fear of Heights Gets ADA Trial – from Joe’s HR and Benefits Blog
• Federal Court Concludes EEOC Subpoena Is Improper Fishing Expedition – from New York Labor and Employment Law Report
• How To Document a Hostile Work Environment – from UndercoverLawyer
• Son May Bring 3rd Party Retaliation Claim – from Atlanta Employment Lawyer Blog
• Timing Is (Almost) Everything: The Adverse Employment Action Following Knowledge Of Disability – from New York Labor and Employment Law Report
• Brownie Defense Fails in Workplace Drug Testing Case – from Minnesota Labor & Employment Law Blog

Social Media & Workplace Technology

• Social Media Distractions Are Costing Businesses Major Money – from Mashable
• The Tide Seems to Have Turned For Social Media on the Job – from TLNT
• Facebook closing in on 700 million friends – from Boy Genius Report
• Why employees should think before they tweet – from The Globe and Mail
• Two Questions Employers Should Ask Before Implementing A Social Media Policy – from Michigan Employment Law Advisor
• Addressing teacher use of social media—on and off the clock – from Eric Meyer’s The Employer Handbook
• The Perfect Media Storm That Is “Weinergate” – from The Not-So Private Parts

Labor Relations

• NLRB Rules Rat Display at Secondary Employer Premises is Lawful – from Seth Borden’s Labor Relations Today
• Fire For Facebook “Concerted Activity”, Risk Getting a Union – from Michael Haberman’s Omega HR Solutions
• Placement of Production Line in Right to Work State Alleged to Violate NLRA – from Labor & Employment Law Perspectives
• More reaction to the NLRB’s overreach – from Marathon Pundit

Employee Competition & Trade Secrets

• Expedited Discovery In Non-Compete Cases Is Not Guaranteed – from Legal Developments In Non-Competition Agreements
• Misclassification of Employee May Impact Employer’s Ability to Enforce Non-Compete Agreement – from Delaware Non-Compete Law Blog
• Third Circuit: Breach of Independent Contractor Agreement Provides Basis to Deny Request for Injunctive Relief – from Trade Secrets and Noncompete Blog
• Colorado Supreme Court Says Continued At-Will Employment Is Sufficient Consideration For Noncompetition Agreement – from Colorado Employer’s Law Blog

Wage & Hour

• Paid Time Off—How’s It Working? Let’s Find Out – from HR Daily Advisor
• Paid Sick Days: Business killer or worker boon? – from CareerDiva Eve Tahmincioglu
• Employee Who Refuses to Provide Sufficient Medical Certification under FMLA is Lawfully Terminated – from FMLA Insights
• Exempt Managers Spending Major Time on Nonmanagerial Duties May Not Affect Exempt Status – from Overtime Advisor
• SDNY: Outside Sales Exemption Applies to Registered Representatives – from Wage & Hour Counsel

Background Screening

• County to Background Check Ice Cream Truck Drivers – from employeescreenIQ Blog
• 3 Myths About Employing People With Criminal Histories – from fyiscreening

In light of this week’s theme, I’ll leave everyone with a glimmer of hope, courtesy of a picture taken by my daughter on her new digital camera.

 

At the age of 5, she has not yet learned to see race; I hope she never does.

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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.