Is that a hair in my chalupa? (or, Taco Bell and EEOC battle over religious accommodation)

A Nazarite is one who takes a biblical vow to refrain from wine, wine vinegar, grapes, raisins, intoxicating liquors, and vinegar distilled from such, refrain from cutting the hair on one’s head, and to avoid corpses and graves, even those of family members, and any structure which contains such.

History’s most famous Nazarite is Samson, who famously refused to cut his hair because it was the source of his strength. Its second most famous might be Christopher Abbey, on whose behalf the EEOC has filed a religious discrimination lawsuit against a North Carolina Taco Bell that fired Abbey after he refused to cut his hair. From the EEOC’s press release:

According to the EEOC’s lawsuit, Abbey is a practicing Nazirite who, in accordance with his religious beliefs, has not cut his hair since he was 15 years old. Abbey had worked at a Taco Bell restaurant owned by Family Foods in Fayetteville, N.C., since 2004. Sometime in April 2010, Family Foods informed Abbey, who was 25 at the time, that he had to cut his hair in order to comply with its grooming policy. When Abbey explained that he could not cut his hair because of his religion, the company told Abbey that unless he cut his hair, he could no longer continue to work at the restaurant.

Two questions immediately leap to mind:

1. What changed between 2004 and 2010, when the restaurant decided that Abbey could no longer work with long hair?
2. What was so burdensome about Abbey wearing a hair net?

Someday, employers will learn that sometimes it is easier to make a simple accommodation than to dig in their heal and fight.

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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 #187 (the “24” edition)

Willie Mays … Jack Bauer … Jon Hyman … what do we all have in common? The number 24. HR Examiner, one of the preeminent online magazines on HR issues, recently named me to its list of the top 25 digital influencers for human resources—number 24, to be exact. Please check out the entire list, which is chock-full of great HR bloggers and tweeters.

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

Discrimination

• What would Kenny Powers do? Interview questions to avoid – from The Employer Handbook Blog
• Sexual Harassment: You Knew or Should Have Known – from Michael Haberman’s Omega HR Solutions
• “Associational Disability Discrimination”—Yet Another Protected Category – from Labor & Employment Law Perspectives
• Non-impaired employee may be able to bring a claim under the ADA’s “associational disability” provision – from Employment Law Matters
• Wal-Mart Agrees to Give Women Extra Time to File Discrimination Lawsuits – from How Appealing
• Verizon Consent Decree Provides Road Map For Surviving EEOC Scrutiny of No Fault Attendance and Leave of Absence Policies – from Employer Law Report
• Two Recent Decisions Illuminate for Employers the Broad Contours of ADA Confidentiality vs. the Narrow Boundaries of HIPAA Privacy – from Workplace Privacy Counsel
• ADA And GINA: The EEOC Suggests That Additional Layers Of Privacy Protections For Employee Health Information May Be Necessary – from Hunton Employment & Labor Law Perspectives™
• Substance abuse and the ADA: Can too much caring get you in trouble? – from HR Cafe

Social Media & Workplace Technology

• Social Media: Used Not Just to “Friend”, but to Hire – from Smart HR Manager
• LinkedIn and Litigation – from Augmented Legality
• Twitter Fail and Compliance – from Compliance Building
• E-Monitoring in the Workplace: Do’s and Do Not’s – from Workplace Insights
• How much time are your employees on Facebook? from Rob Radcliff’s Smooth Transitions
• Monitoring Employee Communications Requires Up-to-Date Consent – from Labor & Employment Law Perspectives
• Computer Fraud and Abuse Act: A Criminal Statute That Extends to the Employment Relationship? – from Michigan Employment Law Advisor
• Employers Hunt Down Your Bachelor Party Pics on Facebook – from Evil HR Lady, Suzanne Lucas
• Google Plus for lawyers : First impressions – from Real Lawyers Have Blogs
• Social Media “Incidents” Costing Average Company $4 Million A Year – from Workplace Diva
• LinkedIn Launches “Apply With LinkedIn” Button – from Social Axcess

HR & Employee Relations

• Can you get fired for cursing at work? – from CNN
• Using Trickery and Deceit in Workplace Investigations – from iSight Blog
• How to Use Payroll Debit Cards to Pay Employees – from Virginia Employment Law Journal
• Criminal Histories and Employment Opportunities – from Stephanie Thomas’s The Proactive Employer Blog
• 21 Workplace Benefits That Are Rapidly Disappearing – from US News and World Report
• HR Mistakes in Mergers and Acquisitions – from TLNT
• What To Do When Angry Employees Leave – from Inc.

Labor Relations

• NLRB Division of Advice Provides Additional Guidance on Social Media Issues – from Seth Borden’s Labor Relations Today
• NLRB: Not All Employee Facebook Posts Deserve Protection After All – from Dan Schwartz’s Connecticut Employment Law Blog
• Ikea’s Virginia Manufacturing Plant Workers Vote for Union – from Bloomberg
• First Circuit Upholds NLRB’s Strike Against Compensation Confidentiality Policy – from Labor Relations Counsel
• NLRB Quickie Election Fact Check – from Labor Relations Institute

Wage & Hour

• U.S. DOL Seeks New Employment-Law-Related Apps – from Molly DiBianca’s Delaware Employment Law Blog
• Parental Bereavement Act Would Amend FMLA to Provide Leave Upon Death of a Child – from FMLA Insights

Trade Secrets & Competition

• Noncompete Defamation Leads to Six-Figure Verdict – from Philip Miles’s Lawffice Space
• Affidavits Not Enough to Obtain Injunctive Relief in Alleged Raiding Case – from Trading Secrets
• Court Enjoins Lawyer From Competing and Soliciting Clients of Former Law Firm – from Trade Secrets & Non-Compete Blog

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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.

Did you hear the one about the one-armed man who applied for a job with TSA?

Michael Costantino was born without a left hand. Should the Transportation Security Administration have hired him as an airport screener? Or, has it violated the ADA by refusing to hire him because of his missing hand? Eva Tahmincioglu reports the details at MSNBC.com:

After a physical examination by the agency, he got a notice stating he did not qualify for the position because of the “congenital loss of right hand.” …

But an official, who demanded anonymity, said the congressional act that created the TSA in 2001 “gave the agency the leeway to create its own physical qualifications for the Transportation Security Officer position, and potential employees have to meet certain physical standards to meet those qualifications.” The law requires that screeners “possess basic aptitudes and physical abilities, including color perception, visual and aural acuity, physical coordination, and motor skills.”

This case will hinge on whether Costantino could perform the essential functions of the transportation security officer position, including patting down passengers and checking luggage. As this recent case from the Northern District of Ohio makes clear, the ADA does not require an employer to restructure the essential duties functions of a job as a reasonable accommodation.

I would argue that moving passengers through the line as quickly and safely as possible is also an essential function of this position. It is probably safe to assume that Costantino could screen passengers and luggage one-handed, albeit more slowly. If his limitation would cause him to take longer to screen passengers and cause an unneeded back-up, would he be performing all of the job’s essential functions? Before you slam me for being insensitive, answer these questions honestly. Do you want to be in the unnecessarily long security line when you’re trying to catch your flight? Or, would you be murmuring under your breath for the line to move faster as your eyes dart between the line, your watch, and your boarding pass?

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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.

Calling for a balanced approach to criminal background checks

Yesterday, the EEOC continued its series of public meetings examining hiring practices as alleged employment barriers, covering employers’ use of arrest and conviction records. According to the EEOC’s press release, it is trying to strike a balance between workplace fairness and workplace safety. Let’s hope that the EEOC is serious about being balanced in its approach to this important issue.

The EEOC’s position has always been that blanket policies that disqualify people with criminal backgrounds violates Title VII. Instead employers should undertake a job-by-job, employee-by-employee, check-by-check analysis of the relationship between the conviction and the ability to perform the job. At the minimum, the EEOC should continue this approach.

Nothing will be served by tightening the reigns on employers’ ability to conduct reasonable criminal background searches. Consider, for example, the May 2009 verdict against a Virginia assisted living facility that failed to discover that it had hired a sex offender. This example might be extreme, but it illustrates that criminal histories are necessary and relevant for many employers. Every employer does not need to check the criminal background of every applicant. However, it is imperative that the EEOC allow employers the flexibility to decide for themselves which positions warrant criminal history histories, and then which crimes disqualify a candidate from employment.

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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.

Start-up offers social media background searches; employers rejoice and privacy advocates mistakenly groan

More employers are turning to social media sites to vet potential employees. There is no doubt that sites like Facebook and Twitter offer a wealth of information about potential hires. Using these sites to vet job candidates offers a great opportunity, and also a huge risk. Using publicly available information on the Internet has the risk of disclosing protected EEO information, such as disability, age, race, or religion, or, at a minimum, raising a dangerous inference that such information was discovered and used in the hiring process.

Nearly two years ago, I cautioned employers against relying solely on online background checks to vet potential employees. I recommended using a “third-party to do the searching, with instructions that any sensitive, protected, or EEO information not be disclosed back to you.” No companies were available, though, that specialized in these types of background searches, until now.

Last month, the FTC signed-off on a year-old company that searches social media sites for employers conducting background searches on employees—Social Intelligence Corp. In last Wednesday’s New York Times, Jennifer Preston wrote a profile of the start-up that has generated a lot of online discussion:

Companies have long used criminal background checks, credit reports and even searches on Google and LinkedIn to probe the previous lives of prospective employees. Now, some companies are requiring job candidates to also pass a social media background check.

A year-old start-up, Social Intelligence, scrapes the Internet for everything prospective employees may have said or done online in the past seven years.

Then it assembles a dossier with examples of professional honors and charitable work, along with negative information that meets specific criteria: online evidence of racist remarks; references to drugs; sexually explicit photos, text messages or videos; flagrant displays of weapons or bombs and clearly identifiable violent activity.

According to Social Intelligence’s CEO, Max Drucker, its services “have turned up examples of people making anti-Semitic comments and racist remarks…. Then there was the job applicant who belonged to a Facebook group, ‘This Is America. I Shouldn’t Have to Press 1 for English.’”

I have not used Social Intelligence’s services, and I am not endorsing its product. What is appealing about it, though, is its professed ability to screen out protected EEO information:

Our technology allows us to turn around reports in 24 to 48 hours while still having social media activity about every job applicant manually reviewed. Social Intelligence Hiring presents employers with reports on only employer-defined objectionable material, such as racist remarks or behavior, explicit photos and video, and illegal activity. We flag job candidates associated with negative and positive material, filtering out their “protected class” information and reporting only relevant and desired data. Summary and detail views present easy-to-understand results, with screenshots of pertinent material.

Social Intelligence has sparked a lively debate on the Internet. The New York Times story alone has a whopping 258 comments to date. I participated in a discussion on Google+ about the New York Times article, where my opinion voicing the validity of checking employees’ social media activities was decidedly in the minority. The majority, who expressed privacy concerns, misses the mark. Social media is inherently public, and employees who do not tend to their online image risk an arduous job search.

If you want to learn more about the proper and improper uses of social media in the hiring process, Think Before You Click: Strategies for Managing Social Media in the Workplace is now available from Thompson Publishing. I also recommend part two of Stephanie Thomas’s Proactive Employer Podcast—the HR and Social Media Roundtable—airing live this Friday (July 29) at 8:30 am on BlogTalkRadio, and later available for on-demand listening at The Proactive Employer and via iTunes.

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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.

Is this what a disability analysis looks like under the ADAAA?

A lot has be written over the past couple of years predicting how the 2009 amendments to the ADA have eviscerated the definition of disability. Here’s what I wrote a couple of months ago, after reviewing the EEOC’s then-new regulations:

While the regulations make clear that “not every impairment will constitute a disability,” because of the ADAAA’s expansive definition of disability, most will…. In other words, employers should give up hope that they will be able to prove that an employee’s medical condition does not qualify as a disability.

Now, we finally have an example that starts to prove these predictions correct.

Gesegnet v. J.B. Hunt Transport (W.D. Ky. 5/26/11) concerns whether an employer failed in its obligation to reasonably accommodate an employee’s bi-polar and anxiety disorders by making arrangements for a pre-employment drug screening somewhere other than a small room. Before the court could reach the reasonable accommodation issue, it had to first address whether the employee qualified as “disabled” under the ADA. The following is the court’s searing analysis of this important threshold issue:

In difficult cases, a plaintiff usually proves disability through a combination of medical evidence and personal testimony detailing the practical impact of that medical condition. Here, Plaintiff is lacking in each area.... The Court doubts that the medical and personal evidence here is sufficient to show an actual inability to perform a basic function of life. Nevertheless, given the broad definition of disability Congress intended, the Court will assume that Plaintiff has a disability under the ADAAA.

Because employers will not be able to prove that an employee is not “disabled,” employers will be better served by focusing their ADA-compliance efforts on the two issues that now matter: avoiding discrimination and providing reasonable accommodations.

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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.

Announcing the publication of Think Before You Click: Strategies for Managing Social Media in the Workplace

It is with great pride and accomplishment that I announce the publication of Think Before You Click: Strategies for Managing Social Media in the Workplace (née HR and Social Media: Practical and Legal Guidance). This book, which I believe is the first of its kind discussing the intersection of social media, HR, and labor/employment law, comprehensively covers the following:

• What Is Social Media?: An examination of the “Big Four” in social media (blogs, Facebook, Twitter, and LinkedIn): how they are used today, and what’s on the horizon for tomorrow.
• Drafting the Workplace Social Media Policy: 10 considerations every employer needs to think through before drafting and implementing a workplace social media policy.
• Hiring and Recruiting: How employers are using social media to locate, vet, and screen potential employees and new hires.
• Privacy Protections: How privacy and social media interact in the workplace, and the various constitutional, statutory and common law privacy rights implicated by social media.
• Post-Employment Covenants and Trade Secret Claims: How best to protect confidential information and trade secrets from disclosure via social networks by current and former employees.
• Litigation: How lawyers are using social media as evidence in litigation against employers.
• Labor Law: The meaning of protected, concerted activity, anti-solicitation policies, and how the National Labor Relations Board is applying these long-standing principles in an attempt to gut employers’ attempts to regulate what employees about saying about them online.

Having edited the entire book, I can say without reservation that it is a must for any business owner, executive, manager, human resources professional, or attorney who is concerned about the effect social media is having on the modern workplace and the liability risks that flow from it. In short, this book will prove to be an invaluable resource as businesses try to navigate these uncharted waters.

When Thompson first approached me about authoring this book, I candidly told them that I would love to write the book, but my busy practice would not permit the time to crank out the entire tome. For that reason, I am eternally grateful to my team of contributing authors—Seth Borden (Labor Relations Today; @SHBorden), Molly DiBianca (Delaware Employment Law Blog; Going Paperless; @MollyDiBi), Eric Meyer (The Employer Handbook Blog; @Eric_B_Meyer), Philip Miles (Lawffice Space; @PhilipMiles), Rob Radcliff (Smooth Transitions; @robradcliff), and Daniel Schwartz (Connecticut Employment Law Blog; @danielschwartz)—who helped write an amazing book and without whom the book would not have been possible and would not be as good as it is.

Now click over to Thompson Publishing for more information, including how to order a copy.

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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 #186 (the carnival edition)

This week marks the 186th edition of What I Read This Week, where I share the best what caught my eye as I surfed around the blogosphere (mostly) for the last 7 days. This week, Eric Meyer’s The Employer Handbook launched the Employment Law Blog Carnival, a monthly collection of submitted blog links on employment law arranged around a particular theme. I’ll be hosting the Carnival’s 2nd edition (theme tbd), on August 17, so feel free to send (jth@kjk.com) or DM (@jonhyman) your links by August 15.

I’d also be remiss if I did not give one more plug for Stephanie Thomas’s Proactive Employer Podcast on social media, in which I participated, which aired live at 8:30 this morning. Part 2 airs next Friday at the same time. Both installments will be available for on-demand listening at The Proactive Employer and via iTunes.

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

Discrimination

• Cubicle Walls Closing In On ADA Violations – from Stephanie Thomas’s The Proactive Employer Blog
• 4 Ways Employers Skirt Discrimination Laws – from The Street
• Religious Discrimination Based on Abercrombie “Look Policy” – from Employment Matters Blog
• Changing Gears in Reverse Discrimination Claims: Differences under Michigan and Federal Law – from Michigan Employment Law Advisor
• No-Fault Attendance? In light of the EEOC/Verizon settlement, what’s the point? – from Employment and Labor Insider
• Avoiding discrimination class actions – from Inside Counsel

Social Media & Workplace Technology

• Steamed—Employment Law Attorneys & Social Media – from Blogging4Jobs
• OMG! The cost of social-media blunders – from today.com
• Plaintiffs, Beware of Social Media – from Social Media Today
• Nearly Half of Companies Have No Social Networking Policy – from Manpower Employment Blawg
• Using Social Media for Discovery Has Ethical Implications – from From the Sidebar
• Someone Posted Something Nasty About You On The Internet. Now What? – from Kashmir Hill’s The Not-So Private Parts
• The Use of Social Media in Hiring Decisions: Tempting Fruit from a Poisonous Tree – from Pennsylvania Labor and Employment Blog
• The New Norm in HR: Social Media Recruiting – from Social Axcess
• Social Recruiting On The Rise In 2011 – from Cincy Recruiter’s World
• How to Create A Social Recruiting Strategy – from MonsterThinking

Employment Relations & HR

• Potty Training and how it relates to Careers (this should be interesting) – from Smelling Some Roses
• Bill Clinton and the “Extreme and Outrageous” IIED Hurdle – from Philip Miles’s Lawffice Space
• 7 Ways to Get at the Truth in a Workplace Investigation – from iSight Blog
• Employee Morale Tanks When A Co-worker Takes Sick Leave – from Workplace Diva
• Plaintiff’s Lawyer Reveals: Mistakes that Make My Day – from HR Daily Advisor
• Anti-Anti-Smoking Rules – from Workplace Prof Blog
• Leaky Hiring Tests: Are They Your Organization’s Most Expensive Mistake? – from TLNT
• Horrible Bosses? – from Harvard Business Review
• Unlimited Vacation, but Can You Take It? – from The Wall Street Journal

Wage & Hour

• Complaint re: Wages on Facebook Not Basis for FLSA Retaliation Claim – from Molly DiBianca’s Delaware Employment Law Blog
• Salaried Workers, Do You Get Overtime Pay? Odds Are You Should! – from Donna Ballman’s Screw You Guys, I’m Going Home
• You Be the Judge: Did boss tell employee to falsify his time card to omit overtime? – from HR Cafe
• DOL Playbook – from Laconic Law Blog
• Employers Urge Congress To Revise the Fair Labor Standards Act – from Wage & Hour - Development & Highlights
• Using GPS Tracking Technology to Prove Intermittent FMLA Abuse? – from Texas Employment Law Update
• Is There Paternity Leave in Baseball? – from Work and Family Blog
• Taking FMLA Leave to Care for a Parent or Parental Figure – from Wisconsin Employment & Labor Law Blog

Labor Relations

• NLRB’s Invisible Hand Will Hold Back Business – from The ChamberPost
• Bill That Would Remove NLRB’s Authority to Order Employers to Relocate or Close Their Facilities is Introduced – from Washington D.C. Employment Law Update
• Speakers List Grievances About Proposed NLRB Election Rule Changes – from Labor Relations Counsel

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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.

Find the sweet spot when firing a bad employee

There is a balance between providing a poor-performing employee sufficient time to improve and waiting to long to fire someone. Cohen v. CHLN, Inc. (E.D. Pa. 7/13/2011) illustrates what can go wrong when this balance goes out of whack.

Howard Cohen managed various restaurants from 1998 through 2006, and again from 2007 until his termination in August 2009. During his second tenure with the restaurant company, his performance was less than stellar; he received various disciplinary warnings, write-ups, and suspensions, and two consecutive negative annual reviews. The restaurant waited to terminate Cohen, though, until the day after he advised of his need for back surgery. Based on that fact alone, and ignoring management’s internal discussions about terminating Cohen before he communicated his need for surgery, the trial court denied the employer’s motion for summary judgment:

Defendants have undoubtedly presented a wealth of evidence justifying their termination of Plaintiff. Nonetheless, their failure to fire Plaintiff, after years of poor performance reviews, until the morning after he requested leave for his back condition raises a sufficient question as to Defendants’ alleged discriminatory motive to render summary judgment inappropriate.

Don’t make the same mistake. Look for the sweet spot before firing a poor performer.

• Fire after you’ve provided the employee sufficient and reasonable warnings and opportunities to improve. Firing too early could lead a judge or jury to conclude that the termination was an ambush, and punish accordingly.
• Fire before the employee engages in some protected activity. Firing too late—as in the Cohen case—could lead a judge or jury to conclude that something other than poor performance motivated the decision. The last thing you want in a discrimination or retaliation case is a search for an explanation other than your proffered legitimate non-discriminatory reason.

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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’d think a businesses named “Menorah House” would know something about accommodating the Sabbath

The EEOC is alleging that Menorah House, a Boca Raton, Florida, nursing home, violated Title VII when it fired an employee who wanted time off to observe the Sabbath. From the EEOC’s press release:

According to the EEOC’s suit … Menorah House denied a religious accommodation to Philomene Augustin and fired her because of her religious beliefs. Augustin … is a Seventh-Day Adventist, and her Sabbath is from sundown on Friday to sundown on Saturday evening. Menorah House had accommodated Augustin’s request not to work on her Sabbath for over ten years until management instituted a new policy requiring all employees to work on Saturdays, regardless of their religious beliefs.

Title VII requires an employer to reasonably accommodate an employee whose sincerely held religious belief, practice, or observance conflicts with a work requirement, unless doing so would pose an undue hardship. An accommodation poses an undue hardship if it causes more than de minimis cost on the operation of the employer’s business.

When will accommodating the weekly Sabbath requests of an employee pose an undue hardship?

• If it would require hiring additional employees.
• If it would require paying other employees overtime.
• If other employees refuse to voluntarily swap shifts to cover.
• If it would deprive another employee of a job preference or other benefit guaranteed by a bona fide seniority system or collective bargaining agreement.

If, however, an employer can schedule around the request without adding employees or costs, or without forcing employees to swap shifts, then the accommodation likely should be made.

If the facts as alleged by the EEOC are true, this employer should have forsaken its across-the-board prohibition against Saturdays off. Instead, it should have engaged in a cooperative information-sharing process with the employee to determine if it could provide a reasonable accommodation without incurring an undue hardship.

For more information on religious discrimination and reasonable accommodations, the EEOC offers the following resources on its website:

• Compliance Manual on Religious Discrimination
• Questions and Answers: Religious Discrimination in the Workplace
• Best Practices for Eradicating Religious Discrimination in the Workplace

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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.

Can you hear me now? Don’t forget mobile devices in your social media policy

You think you’ve crafted the perfect social media policy for your employees. You let employees have the freedom to engage in limited and reasonable social media from work, yet use server-side software to spot-monitor their activities just in case things get out of hand. Your company Internet also blocks grossly inappropriate content, such as pornography. Yet, your policy is missing one key component ... mobile devices.

According to a recent report by the Pew Internet Project (c/o Mashable), more U.S. adults have a smartphone than a college degree. 35% of surveyed adults reported that they own a smartphone, and of those people 87% use their smartphones as an Internet device. Moreover, smartphone adoption is set to grow an additional 45% this year alone. (GigaOm). Smartphone use is approaching a critical mass in our society.

What are these smartphone owners doing with their devices at work? If a recent survey published by TechNewsDaily is to be believed, they are accessing websites they wouldn’t ordinarily visit from their workstation PCs:

• 52% look for a new job
• 47% watch pornography
• 37% research embarrassing illnesses or conditions

In light of these stats, if your social media policy is written as an outright ban on the use of social media in the workplace, that policy is not workable. Moreover, if your social media policy does not account for smartphone use, it has a gaping hole that you need to fill immediately.

If you want to learn more about these issues, I cannot more strongly recommend picking up a copy of HR and Social Media: Practical and Legal Guidance, which (God willing) finally will be published and available for purchase this week. I’ll have more information as soon as it is launched.

You should also check out a special two-part edition of Stephanie Thomas’s Proactive Employer Podcast, during which Seth Borden (Labor Relations Today; @SHBorden), Molly DiBianca (Delaware Employment Law Blog; Going Paperless; @MollyDiBi), Eric Meyer (The Employer Handbook Blog; @Eric_B_Meyer), Phil Miles (Lawffice Space; @PhilipMiles), Rob Radcliff (Smooth Transitions; @robradcliff), Dan Schwartz (Connecticut Employment Law Blog; @danielschwartz), and I will discuss all things social media and HR (and promote our new book at the same time). Part 1 airs on BlogTalkRadio at 8:30 AM on Friday, July 22; part 2 at 8:30 AM on Friday, July 29. Both installments will be available for on-demand listening at The Proactive Employer and via iTunes.

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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.

Retaliation is the Hannibal Lecter of employment claims

How often do you see a perfectly defensible employment claim go up in flames because of retaliation? Take, for example, MacDonald v. UPS (6th Cir. 7/14/2011) [pdf]. In that case, the Court affirmed the dismissal of the disability discrimination claim and a companion whistleblower claim, but sent the case back for trial on the retaliation claim.

MacDonald engaged in protected activity on September 18, 2006, and was fired the same day. He returned to work on October 16, 2006, and was immediately required to write the safety rules over and over again in a notebook while his coworkers had down time. Viewed in the light most favorable to MacDonald, this requirement was punitive…. Further, within as little as two weeks, UPS ordered that surveillance be conducted on MacDonald, with the goal of disciplining him, and as soon as the security supervisor was available, MacDonald was subject to extreme scrutiny in the form of hidden surveillance cameras and tails. MacDonald again engaged in protected activity on December 18, 2006. Three weeks later, MacDonald was tailed by two supervisors, who looked for and documented the most miniscule of infractions, which were not enforced against other drivers. UPS terminated MacDonald for those infractions the following week, and a week later, MacDonald was sent on a training ride with a supervisor, who fabricated a story of gross insubordination. The following day, MacDonald was removed from service.

Retaliation claims are pure evil. They are difficult to get rid of. Have the lambs stopped screaming?

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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 #185 (the “3 is the magic number” edition)

Yesterday, my son turned three. For those of you who follow regularly, you’ll understand why yesterday was just a little more special to our family. If you want to know what helps makes me who I am, take a gander at my wife’s excellent blog, from yesterday, about our guy’s birthday (it really is well-written; I'm not just saying that because she's my wife).

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

Discrimination

• 5 signs that you may be in trouble with the EEOC for employee harassment – from Employment Law Bits
• Gender Pay Gap, Menstrual Cycles and Productivity – from The Proactive Employer Blog
• Fifth Circuit Holds Title VII Damage Caps Apply “Per Party” Not “Per Claim” – from Texas Employment Law Update
• Does My Employee Have a Medical Problem or a Performance Problem? – from Evil HR Lady, Suzanne Lucas
• Accused of sexual harassment? That's bad, but don't make it worse – from Employment and Labor Insider
• Male coworkers think I won’t return to work after my pregnancy—and won’t shut up about it – from Ask a Manager

Social Media & Workplace Technology

• Compliance and Google+ – from Compliance Building
• “Social Checks” Come of Age: What Does It Mean for Employers? – from Workplace Privacy Counsel
• Is The Jury Still Out On Social Media Background Checks? – from California Employment Law Report
• Monitoring the Private Lives of Your Employees – from You’re the Boss Blog
• Social Media Continues To Impact Litigation and Trial – from Connecticut Business Litigation Blog
• Social Media and the front porch – from Legal Marketing: Social Media Edition
• Facebook Trash Talk Is Not Protected Speech In A University Setting – from Minnesota Labor & Employment Law Blog
• Digging Up Social Media’s Treasure Trove of Discovery – from Law Technology News
• Tips for Electronic Communications – from Employment Matters Blog

Employee Relations & HR

• Looking at Employee and Going “Bang Bang” Is Not “Extreme and Outrageous” Conduct – from Dan Schwartz’s Connecticut Employment Law Blog
• Fact or Fiction: A “general release” settles all discrimination claims – from Eric Meyer’s The Employer Handbook Blog
• Noncompete Doesn't Prevent Ex-Employee from Working for Competitor – from Philip Miles’s Lawffice Space
• Diagnose and Eliminate Workplace Bullying – from Harvard Business Review
• When bad employers retain thuggish employment lawyers – from David Yamada’s Minding the Workplace
• The Value of EPL Insurance to Protect Your Business Against Employment Lawsuits – from CPEhr

Wage, Hour, & Benefits

• Web Chat Participants Ask Several Questions, Receive Few Answers from DOL’s Wage and Hour Division – from Washington D.C. Employment Law Update
• Working 40 Hours Per Week: A Normal Schedule, or Career Suicide? – from TLNT
• Ohio District Court Rules Profit-Based Compensation Scheme Constitutes Bona Fide “Commission” for Purposes of 7(i) Overtime Exemption – from Wage and Hour Law Update
• New Wal Mart Case Helps Defeat FLSA Class Action – from Wage & Hour - Development & Highlights
• Classless Claim In Topless Bar: Arbitration Clause Strips FLSA Action Bare – from Hunton Employment & Labor Law Perspectives™
• Adequate Employee Notice of the Need for FMLA Leave Involving In Loco Parentis Parent: Further Explanation Required – from The FMLA Blog
• To invoke FMLA protection for care of another, some geographic proximity is required by the employee – from Employment Law Matters
• Should you mention call-in policy in your FMLA notice to employees? – from HR Cafe
• Firing Employees for Gross Misconduct: How Is COBRA Coverage Affected? – from SmartHR

Labor Relations

• NLRB Public Hearings on “Quickie” Elections to Proceed on July 18-19 – from Seth Borden’s Labor Relations Today
• WFI: Ten Ways to Spur Economic Growth – from Labor Relations Institute

Until next week...

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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.

We’ve come a long way … and we still have a long way to go

In 1968, United Artists pulled 11 Looney Tunes and Merrie Melodies cartoons from televised syndication, deeming their portrayal of African Americans too offensive for contemporary audiences. The following Bugs Bunny cartoon, All This and Rabbit Stew (1941), was one of those 11:

The following is an excerpt from an EEOC press release, circa June 2011, announcing the filing of a racial harassment case:

According to the EEOC’s complaint, from as early as May 2007 through at least June 2008, Contonius Gill, a truck driver, and other African-American employees were repeatedly subjected to unwelcome derogatory racial comments and slurs by employees and managers at A.C. Widenhouse, Inc. These comments and slurs included “n----r,” “monkey,” and “boy.” On one occasion Gill was approached by a co-worker with a noose and was told, “This is for you. Do you want to hang from the family tree?” The complaint alleges that on another occasion, the company’s general manager told Gill, “We are going coon hunting, are you going to be the coon?”

Need I say more?

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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.

How NOT to respond to an employee’s pregnancy

If an employee with low sales numbers announces her pregnancy, do you:

1. congratulate her and continue to treat her the same as before the announcement, or
2. ask others, “What are we going to do about that?”

According to the plaintiff in Majer v. Lexion Medical, her employer chose option 2, and will pay the price for it.

When the court put that damning statement together with evidence that the employer did not terminate at least one non-pregnant employees with worse sales numbers than the plaintiff, it concluded that it had “serious doubts” about the legitimacy of the decision-making process that led to the termination. In more technical terms, it denied the employer’s motion for summary judgment, sending the case to a jury trial.

As long as managers and supervisors make these types of comments, I won’t worry too much about the viability of my chosen line of work.

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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.

The obligatory post about Google+

On June 28, Google launched its latest foray into social networking, Google+. Since its lauch, Google+ has created quite the buzz around the Internet. For example, one report suggests that Google+ accounted for an astounding 35% of all tweeted news links during its launch week. There has already been a ton written about Google+. If you want to read up on its ins and outs, I suggest the excellent the guides posted on Social Media Today or the Social Media Examiner.

For lack of a better description, Google+ is like Facebook, Twitter, and LinkedIn all rolled into one shiny, clean, new interface. Its standout feature is called Circles, which allows you to segregate your contacts into defined groups, which in turn allows you to determine which content you push to which groups. Thus, you could send an update about your kids to your family and friends, and comment on a news story to your business contacts. It has the immediacy of Twitter, combined with the functionality of Facebook, with the added benefit of being about to customize who sees what.

What does all this mean to employers? It’s too early to say. According to Dan Schwartz, on his Connecticut Employment Law Blog: “Google+ isn’t something to worry about. Yet. Only early adopters such as myself are on it now.  It’s still a long way away from mass adoption.” Yet, he cautions, “Despite an employer’s efforts to control information, Google+ may lead to yet another wave of lesser privacy and more collaboration. And more opportunities for less-than-noble employees to pass along your company secrets.”

I agree. While it’s way too early to know the impact Google+ will have on the workplace, here’s one potential problem. Employers who are Facebook friends with employees, or who follow employees on Twitter, have the ability to learn what their employees are saying and doing online. Because Google+’s Circles allows one to decide who sees what, it has the potential to allow employees to shut people out from seeing certain information, including their employers. Thus, could an employee trash an employer without the employer ever finding out? While that risk exists regardless of the medium, Circles’ unique privacy features heightens this risk.

Philip Miles, on his Lawffice Space blog, makes another excellent point: regardless of the tools, it is important for employers to understand social media generally. As to that goal, I have two options for you: 1) you can buy the soon to be published (this week?) HR and Social Media: Practical and Legal Guidance, and read all about the intersection of social media’s legal risks and your business’s HR practices; and 2) you can listen to an upcoming Proactive Employer Podcast, when my contributing authors to HR & Social Media and I will engage in a one-hour talk, moderated by host Stephanie Thomas, discussing all things social media. I have a feeling Google+ will come up more than once.

Lastly, if you are on Google+, feel free to connect with me at +Jon Hyman. If you are not yet on Google+, but want in on the action, email or DM your gmail for an invite to check it out.

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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 #184 (the scholarly edition)

A few days ago I received the following request, via Twitter, from a Jason Tenenbaum (@t10nbaum), a law student at Hofstra University:

I agreed, and Jason provided the following:

The Hofstra Labor & Employment Law Journal invites submissions for its Fall 2011 issue on all topics relating to labor and employment law. The issue is tentatively scheduled for publication in early December 2011. Additionally, we are specifically seeking articles on the topic of the intersection between labor and employment law and the financial sector for our symposium to be held in November 2011. While we prefer completed papers, authors interested in the symposium but whose articles are not yet ready for publication are encouraged to contact us as we are still seeking participants/contributors. We ask that all articles be submitted by August 15, 2011. Please submit your manuscripts (along with any appropriate supporting documents) or any questions to Ashley Behre, Managing Editor of Articles, at laboremploymentlaw@hofstra.edu. Thank you for your interest. 

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

Discrimination

• This term’s top 5 employment-law Supreme Court rulings … in haiku – from Eric Meyer’s The Employer Handbook Blog
• Retaliation Timing—How Soon is too Soon? – from Philip Miles’s Lawffice Space
• Employee misconduct and ADA protections – from Walter Olson’s Overlawyered
• Think Twice Before Firing for Misconduct Related to a Disability – from SmartHR
• Age Discrimination: Going Away or Alive and Well? – from Michael Haberman’s Omega HR Solutions
• What’s in a name? Potential for race discrimination – from Employment Law Worldview
• What the Supreme Court’s Wal-Mart Decision Means for You – from Tim Eavenson’s Current Employment
• Judge OKs Class Action Lawsuit Against Disney Parks on Behalf of Legally Blind – from Stitch Kingdom
• 6 ways to avoid being the EEOC’s next hiring “test case” – from Employment and Labor Insider

Social Media & Workplace Technology

• A Modest Proposal: Social Network Background Checks Still Concern Me – from Nick Fishman’s employeescreenIQ Blog
• I Flunked My Social Media Background Check. Will You? – from Gizmodo
• No Friend of Mine: Court Denies Facebook Discovery – from Molly DiBianca’s Delaware Employment Law Blog
• Not Even An In-Person Marriage Proposal? Really?? – from Social Media Employment Law Blog
• Entenmann’s Discovers a Fourth Type of “Self-Destructive Corporate Tweet” – from Inside Opinions: Legal Blogs
• Email Etiquette and the Perils of “Reply All” – from Harvard Business Review
• Confidential Information: Social Media at the Workplace – from Unfair Competition & Trade Secrets Counsel
• No-Soliciting Provisions in a LinkedIn World – from Koncision
• Does Google+ Put Google On the Plus Side? – from Lawyerist
• Why Google+ could find a home in the workplace – from GigaOm
• Could Google+ Be a Useful Work Tool? – from Alexandra Levit’s Water Cooler Wisdom

Employee Relations & HR

• Refusing to Hire Tobacco Users—Valid Argument or Just Blowing Smoke? – from The Proactive Employer Blog
• Is Your Future Boss Horrible? A 10 Point Reference Check – from Bob Sutton
• Expense Reports That Get You Fired: Did the Receipt for Your Company Picnic Look Like This? – from The HR Capitalist, Kris Dunn
• How well does your organization respond to employee feedback and criticism? – from David Yamada’s Minding the Workplace
• The Unemployment Rate, Mismatched Skills, and …Non-competes? – from Trading Secrets
• Avoiding Whistleblower Claims—It’s All in the Employer’s Response – from Michigan Employment Law Advisor
• Make sure employees know you’re serious about deterring fraud – from HR Cafe

Wage & Hour

• Employee Must Be in Close Physical Proximity to Ill Family Member to Satisfy FMLA “To Care For” Requirement – from The FMLA Blog
• Plaintiff must demonstrate prejudice in order to be entitled to relief under the FMLA – from Employment Law Matters
• Bill Would Extend FMLA Benefits and Protections to Additional Family Members – from Washington D.C. Employment Law Update
• DOL: Houston Restaurants Violated FLSA By Imposing 91-Hour Workweek and Not Paying Overtime – from Joe’s HR and Benefits Blog
• 10 Things You Need to Know Before You Demand Your Work Break – from Screw You Guys, I’m Going Home

Labor Relations

• Unions in Decline? National Labor Relations Board to the Rescue! – from TLNT
• Chamber Asks NLRB Not to Rush Rules Shortening Union Elections – from The ChamberPost
• Big business v. the NLRB – from John Logan at The Guardian
• NLRB to Healthcare Employers Facing a Strike: You Can Ask, But Employees Don’t Have to Tell – from Labor Relations Update
• Supreme Court will decide whether union’s assessment for political expenses must be preceded by Hudson notice – from LawMemo Employment Law Blog

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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.

ADA’s associational disability provision does not shield poor-performing employees from termination

Eugene Stansberry, who sued his former employer for disability discrimination, is not disabled. His wife, however, is, suffering from Polyarteritis Nodosa, a rare and debilitating autoimmune disorder. Stansberry sued Air Wisconsin Airlines under the ADA’s “associational discrimination” provision. He claimed that his employer terminated him because of unfounded fears that he would be distracted at work on account of his wife’s disability. The 6th Circuit, in its first reported decision on this seldom-litigated provision of the ADA, affirmed the dismissal of Stansberry’s case.

Section 12112(b)(4) of the ADA prohibits employers from “excluding or otherwise denying equal jobs or benefits to a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association.”

More informally, this provision prohibits three types of discrimination against employees associated with, or related to, someone with a disability:

1. Discrimination based on expense: where an employee suffers an adverse employment action because of an association with a disabled individual covered under the employer’s health plan, which is costly to the employer.
2. Discrimination based on disability by association: where the employer fears that the employee may contract the disability of the person he or she is associated with (e.g., HIV), or the employee is genetically predisposed to develop a disability that his or her relatives have.
3. Discrimination based on distraction: where the employee is inattentive at work because of the disability of someone with whom he or she is associated.

Stansberry pursued his claim under the distraction theory. The 6th Circuit, however, concluded that because an employer is not required to provide a reasonable accommodation to nondisabled workers under the ADA’s associational disability provision, the distraction theory does not shield a poor-performing employee from termination.

The court drew an important distinction between an employment decision based on actual poor performance, and one based on a mere fear that the disability of one with whom the employee has a close relation or association might cause poor performance. The ADA protects the latter, but not the former:

Importantly, while Stansberry’s poor performance at work was likely due to his wife’s illness, that is irrelevant under this provision of the Act. Stansberry was not entitled to a reasonable accommodation on account of his wife’s disability. Therefore, because his discharge was based on actually performing his job unsatisfactorily, and not fears that his wife’s disability might prevent him from performing adequately, Air Wisconsin’s conduct is not prohibited by this section of the Act. While Stansberry’s situation is very unfortunate, he has not offered anything to show that his wife’s disability was in any way connected to Air Wisconsin’s decision to discharge him. The only connection is that it possibly caused his performance to slip. Therefore, Air Wisconsin’s decision to terminate Stansberry does not run afoul of the Act.

As this case illustrates, the best defense against a distraction-based associational disability claim is the employee’s actual poor performance. For this reason, careful and consistent documentation is key to an employer’s ability to successfully defend against such a claim.

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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 announces record settlement in ADA case challenging rigid attendance policy

Last month I reported on the EEOC’s public meeting on leaves of absences as ADA reasonable accommodations. At the time, I recommended the following:

Avoid leave policies that provide a per se maximum amount of leave, after which time an employee loses his or her job.

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.

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.

Today, the EEOC reported a record settlement in a disability discrimination class action lawsuit that underscores my points:

Telecommunications giant Verizon Communications will pay $20 million and provide significant equitable relief to resolve a nationwide class disability discrimination lawsuit filed by EEOC…. The suit … said the company unlawfully denied reasonable accommodations to hundreds of employees and disciplined and/or fired them pursuant to Verizon’s “no fault” attendance plans….

The EEOC charged that Verizon violated the ADA by refusing to make exceptions to its “no fault” attendance plans to accommodate employees with disabilities. Under the challenged attendance plans, if an employee accumulated a designated number of “chargeable absences,” Verizon placed the employee on a disciplinary step which could ultimately result in more serious disciplinary consequences, including termination.

The EEOC asserted that Verizon failed to provide reasonable accommodations for people with disabilities, such as making an exception to its attendance plans for individuals whose “chargeable absences” were caused by their disabilities. Instead, the EEOC said, the company disciplined or terminated employees who needed such accommodations.

According to the EEOC, “This settlement demonstrates the need for employers to have attendance policies which take into account the need for paid or unpaid leave as a reasonable accommodation for employees with disabilities.” I could not agree more. If you are considering taking an adverse action against an employee whose medical leave has butted up against a rigid attendance or leave policy, please take 15 minutes and call your employment counsel first.

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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.

The “when” of counting employees for damage caps in federal discrimination cases

Counting is wonderful,
Counting is marvelous,
Counting’s the best thing to do.
Counting is happiness,
Counting is ecstasy,
I love to count, don’t you?
– Counting Is Wonderful, Sesame Street

Under the Civil Rights of 1991, the sum of the non-economic damages (future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, other non-pecuniary losses, and punitive damages) in Title VII, ADA, and GINA cases is capped between $50,000 to $300,000, depending on how many employees a defendant “has … in each of 20 or more calendar weeks in the current or preceding calendar year.” According to Hernandez-Miranda v. Empresas Díaz Massó, Inc. (1st Cir. 6/29/11), when you count employees for purposes of determining the number of employees depends on how you define “current.”

In that case, a jury awarded the plaintiff $300,000 in damages in her sexual harassment lawsuit, in which she proved that during her employment as a construction worker, she was forced to perform oral sex on a supervisor multiple times and was also subjected to extreme, continuing sexual abuse by coworkers and supervisors, all of which her employer ignored. The district court reduced the jury award to $50,000, using the year of the verdict to measure the number of employees.

The 1st Circuit, falling in line with other cases from the 4th, 5th, and 7th Circuits, concluded that the “current” year is the year the discrimination occurred, not the year of the verdict. In doing so, the court examined the policies behind the statute’s caps on damages:

It is clear that Congress did intend to protect …smaller employers … from ruinously large awards…. Congress, we believe, intended such protection for those who were small employers at the time of the discrimination, and not those who by happenstance or design became smaller employers between the time of discrimination and the time of the verdict.

This construction best serves Title VII’s purpose of encouraging resolution of disputes before litigation commences. This purpose … is best advanced by providing clarity and certainty as to the size of potential damage awards from the outset of a dispute. [Non-economic damages] are inherently more difficult to value precisely than the back pay damages traditionally available under Title VII, rendering this type of clarity and certainty all the more important in allowing litigants to make informed decisions about settlement.

Clarity and certainty of potential liability also allows for both sides to set realistic litigation budgets and evaluate whether cases are worth bringing and defending. Such clarity and certainty allows businesses to set adequate reserves, disclose those reserves in annual reports as necessary, and make assessments about whether and how much to insure against the risk of litigation.

Therefore, a court must count the number of people employed when the discrimination took place. The number of employees at the time of the verdict is irrelevant.

The court also concluded that because an employer must affirmatively move to apply the damage caps, it is the employer’s burden to prove the number of employees during the relevant time period.

This case has three important takeaways for businesses:

1. Depending on a business’s size, these caps can have sizeable implications. For example, the ruling in Hernandez-Miranda increased the recovery from $50,000 to $200,000. If you are a small employer (500 or fewer employees) defending a Title VII, ADA, or GINA lawsuit, you omit evidence of the number of employees at your peril.
2. If it makes a difference, introduce evidence of the number of employees both during the year of the discrimination and during the year of the trial. Until the Supreme Court weighs in on this issue, the law is in flux. There is no guarantee that this court will have the final say on this issue, and a different circuit can reach a different result.
3. Ohio’s tort reform statute, which also provides caps for punitive damages, but which lacks the same language as its federal counterpart, is likely unaffected by Hernandez-Miranda. Ohio small employers defending state-law claims should not necessarily look to the Hernandez-Miranda ruling for relief.

Time after time, time alone is not enough to prove retaliation

More than three years ago, I discussed that an employee needs to prove something more than the mere closeness in time between protected activity and adverse action to prove retaliation. Last week, in Meyers v. Goodrich Corp., the Cuyahoga County Court of Appeals decided a case which further illustrates this point, and clarifies that as more time passes, the more additional evidence of retaliation an employee needs.

In Meyers, an entire year lapsed between when the company’s vice-president of HR interviewed the plaintiff in a harassment investigation and his termination. The Court concluded that the lapse in time, coupled with the lack of any additional evidence of a retaliatory motive, doomed Meyers’s claim:

In this case, no inference of causation can be deduced from “temporal proximity.” Goodrich did not terminate Meyers until a year after he participated in the internal discrimination investigation. Thus, to survive summary judgment, Meyers was required to submit additional evidence of retaliatory conduct—or discriminatory intent—between the time he took part in the protected activity and the time he was fired.

There is evidence that sometime before October 2006, Goodrich managers met to discuss how to improve the overall performance of its employees, including supervisors…. The managers ranked Meyers the 24th lowest-performing production supervisor out of 26 supervisors…. Meyers's manager at that time, sent Meyers a letter on October 26, 2006, notifying him that he had 30 days to improve and maintain his performance in certain areas, which were outlined in the letter. But notably, this occurred three months before Meyers took park in the internal investigation.

Even according to Meyers, after January 2007 when the protected activity occurred, the evidence indicates that Goodrich's conduct—if anything—was favorable to him, not retaliatory. He received a 3.5 percent merit raise in April 2007, where he asserts he “was in line with the raises of several of his fellow supervisors.” …

As Meyers concluded in his appellate brief, “[t]he record is simply devoid of any evidence" that Goodrich treated him badly in 2007…, i.e., “[n]o write-ups, no disciplinary actions, no poor reviews.”

Retaliation continues to be the most dangerous EEO claim employers face. The Meyers case shows that employers can win these cases, provided they engage in the proper handling of employee performance issues, coupled with the passage of time, following protected activity.

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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.

Apparently it’s a short trip from Wal-Mart to breast feeding

Last Friday, Labor Secretary Hilda Solis released the following statement about the Dukes v. Wal-Mart decision on the DOL’s Work in Progress blog:

The Court’s decision in the Walmart lawsuit made no ruling on whether America’s largest employer engaged in unlawful pay discrimination…. As Labor Secretary, I believe it is my responsibility to use my authority to close the pay gap so women can earn their fair share and provide the income support their families rely upon….
We also need to create more flexible workplaces so women don’t have to choose between motherhood and a fulfilling career. To that end, my Wage & Hour division has begun enforcing a new provision in the Affordable Care Act that guarantees break time for nursing mothers.

Let me get this straight. The Supreme Court simply decided that 1.5 million women, managed by thousands, if not tens of thousands, of different supervisors, lacked enough in common to bring their claims in one unified class action. From this holding, Secretary Solis makes the jump to conclude that breastfeeding working moms need more workplace flexibility. Am I missing something?
Secretary Solis concluded her comments by stating, “We’re living in the year 2011—not 1911.”

Madam Secretary, let me repeat what I said a few weeks ago, since apparently not everyone had the chance to read it:

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 [or 1911]. Such knee-jerk overreactions unnecessarily polarize us into positions that do nothing to further the debate over the real issue—eliminating workplace discrimination.