Fired for Smoking

Back in April, I brought everyone the story of a German company that fired an employee for not smoking. This morning, the ABA Journal reports on the converse, an upstate New York law firm that fired a paralegal for taking a smoke break: 

A New York appeals court has upheld a Rochester law firm's decision to fire a paralegal who defied a policy that banned smoke breaks for hourly employees.

Karen Kridel had reportedly worked at the firm for more than a year and took a five-minute break in the morning and afternoon to smoke, the Associated Press reports. Kridel, who said the breaks re-energized her, claimed she often made up the time taking calls during her lunch break.

But the firm had banned smoke breaks for hourly workers, outside of the lunch hour, and in 2006 began enforcing it when five-minute breaks turned into 15 minutes, a half hour and then one employee was found sleeping in a car.

There is nothing inherently illegal about having a policy that bans smoke breaks, or terminating an employee for violating that policy. Smoke breaks cripple productivity. Those who abuse them annoy their co-workers and managers, who feel like they are left to do the smokers' work. I once had an assistant who I could never find because she was always outside smoking.

At the same time, however, companies need to be flexible in how they handle employees and their personal needs. Draconian policies (such as no smoke breaks under any circumstances) cripple morale. Moreover, such policies, if not followed to the letter, can lead to discrimination claims. For example, if the company is more permissive with a male paralegal who takes 5 minutes out of his day to run an errand, it could be subjecting itself to sex discrimination liability for treating the female smoker more harshly.

Instead of having a blanket "no smoke break" policy, consider counseling employees who are seen as taking advantage of smoke breaks by taking them excessively or without permission. Building such policies into employees' normal performance evaluations is a much better practice than an outright prohibition on an entire type of conduct.

Blawg Review reminder

Just a quick reminder that I'll be hosting Blawg Review #172 this coming Monday, August 11. If you would like me to consider one of your posts for inclusion, or if you have a post that you've come across this week that you'd like to recommend, please follow this link to Blawg Review and for the submission guidelines.

Will the Healthy Families Act prohibit fraud?

A commenter took me to task for yesterday's post, in which I argued that under the proposed Healthy Families Act employees committing fraud by taking illegitimate time off work could hide behind the law to protect their jobs. To support his/her point, the commenter relied upon Vail v. Raybestos Products Co., an FMLA decision out of the 7th Circuit.

In that case, Diana Vail was terminated while out on FMLA leave. Vail claimed to suffer from migraine headaches, that would come upon her shortly before her scheduled shift at Raybestos. Between May and September 2005, she took more than 33 days of approved leave. Her supervisor became suspicious, hired an off-duty cop to tail her, discovered that she was helping her husband's lawn mowing business while on FMLA leave, and terminated her. The Court correctly rejected her FMLA interference claim:

An employer can defeat an interference claim by showing, among other things, that the employee did not take leave "for the intended purpose." ... We have interpreted this to mean that an employer has not violated the FMLA if it refused to reinstate the employee based on an "honest suspicion" that the she was abusing her leave. ...

Though the use of an off-duty police officer to follow an employee on leave may not be preferred employer behavior, employers have certainly gone further than Raybestos. ... In any event, the information gleaned from Sergeant Largent's reconnaissance was sufficient to give Raybestos an "honest suspicion" that Vail was not using her leave "for the intended purpose." Vail had taken medical leave for her October 6, 2005 evening shift. The next morning, the off-duty police officer saw Vail working for her husband's lawn-mowing business. Raybestos received this information after it already suspected that Vail was gaming her leave in order to work for her husband's business. So when it heard information consistent with what they suspected she was doing while on leave, Raybestos decided to terminate her. ... Raybestos did not violate Vail’s rights under the FMLA.

The Vail case, however, is vastly different than the example I discussed yesterday, which focused on systematic audits by employers of employees' use of sick time. No one would reasonably argue that an employer cannot legitimately investigate a specific employee that in good faith it suspects of committing fraud. However, the Healthy Families Act very well might prohibit more general investigations that may catch crooked employees in its dragnet.

Section 4114.10(B) of the proposed Health Families Act states: "No employer shall interfere with, restrain, or deny the exercise of or the attempted exercise of any right provided in this Act." It will be up to the courts to interpret what this section means, but employee advocates will certainly argue that blanket investigations of employees' use of sick time could interfere with or restrain employees' use of sick time. If an employee thinks that he or she could be terminated if an employer investigation determines that a sick day was improvidently taken, that employee might be less likely to use sick days at all. Thus, one could conclude that generalized investigations violate section 4114.10(B).

Any statute that could be construed to inhibit an employer's ability to investigate and catch employee fraud is a poorly conceived and drafted statute. This is yet another reason why the Healthy Families Act is bad for Ohio businesses.

Healthy Families Act appears headed to November ballot

The Cleveland Plain Dealer is reporting that Ohioans for Healthy Families has submitted to the Secretary of State double the number of signatures needs to place the Healthy Families Act on the November ballot. The battle lines are being drawn between supporters of the ballot initiative and Ohioans to Protect Jobs and Fair Benefits, a coalition of businesses that opposes the initiative as bad for Ohio businesses. Governor Strickland continues to seek a compromise to keep this job-killing measure off the ballot. Ohioans to Protect Jobs and Fair Benefits, however, rightly believes that a compromise is impossible: "The premise of this proposal - to require a costly state-imposed employee benefit that no other state now requires - is unacceptable on its face."

Meanwhile, another story in this morning's Plain Dealer illustrates one of the key problems with the Healthy Families Act. It seems that Cleveland has been spot-checking its safety employees' use of sick time:

For the past 18 months, EMS and firefighter supervisors haven't just been rushing to fires or medical emergencies, they've also been checking up on employees who called in sick.

The checks are done when more than five call off on any day or when people use sick days around holidays and vacations. Employees who don't answer the door when supervisors knock must produce a note or other proof that they visited the doctor or pharmacy or face discipline.

Last week, EMS began pre-discipline hearings for 36 paramedics over sick-time use. Firefighters have already been disciplined.

Employees who call off sick force the city to pay overtime to maintain minimum staffing levels, costing hundreds of thousands of dollars a year. If the city didn't pay the overtime, fire trucks and ambulances would sit idle, said Safety Director Martin Flask.

"Sick time has a detrimental impact on safety services," he said. "Rules have to be followed."

If the Healthy Families Act becomes law, this practice might become illegal. Section 4114.10(C)(2) of the proposed law states: "No employer shall discharge or in any manner discriminate against any employee for opposing any practice made unlawful by this Act, including ... Using paid sick leave taken pursuant to this Act as a negative factor in an employment action, such as hiring, promotion, or a disciplinary action." Checking whether an employee's use of sick leave is legitimate could be construed as violating this provision. In other words, as the law is written, employees committing fraud by taking illegitimate time off work could hide behind the law to protect their jobs.

For more information on how you can help defeat the Healthy Families Act, visit www.saveourjobsandbenefits.com.

Anti-bullying policies are unnecessary

April's decision by the Indiana Supreme Court that upheld a $250,000 verdict in a so-called "workplace bullying" case is causing some employment lawyers to call for businesses to adopt anti-bullying policies. Please do not include me in that group.

From the Wall Street Journal's CareerJournal column:

Experts define workplace bullying as subtle, persistent and often nondiscriminatory harassment of co-workers. Unlike sexual or racial harassment, workplace bullying isn't necessarily illegal. But bullying can contribute to absenteeism and turnover and escalate into illegal behavior if left unchecked, experts say. ...

The Indiana decision came amid growing concern about workplace bullying. Garry Mathiason, a senior partner at Littler Mendelson, a leading employment-law firm, says more corporate clients are raising the issue, motivated by legal questions, as well as concerns about the impact on productivity. Littler Mendelson featured bullying among its "breaking trends" in labor law at a conference for U.S. employers this year.

Angela Cornell, an associate professor at Cornell Law School who specializes in employment law, says workplace bullying is common enough that employers should "nip it in the bud before it becomes a problem."

Graniterock, a Watsonville, Calif., construction-materials distributor, is trying to do just that. In June, Graniterock added nondiscriminatory bullying to its list of prohibited conduct in the workplace, which already included harassment based on gender, ethnicity and other protected statuses. ...

Some business groups and lawmakers say workplace bullying is too difficult to define, and a poorly worded law would expose businesses to unnecessary lawsuits.

Mr. Woolpert says Graniterock executives reworked their antibullying policy several times to clarify its message. The company now forbids "unnecessary and rude behavior intended to be offensive and cause emotional distress, including 'workplace bullying.' "

Let's take a step back and focus for a second on the most important sentence from that article: "Unlike sexual or racial harassment, workplace bullying isn't necessarily illegal." In fact, it's only illegal if its because of some protected class, such as sex, race, religion, national origin, age, or disability. All companies should have an anti-harassment policy that covers these types of illegal harassment. Why do companies need a policy that regulates conduct that is not illegal? Do we really need a policy that tells employees we want them to be nice? If such a policy existed, would it really have any effect whatsoever on the goons in the workplace. My whole problem with the anti-bullying movement is that I don't know how to train people to be nice.

I am against anything that gives this movement any credibility whatsoever. Implementing anti-bullying policies does just that. Bullying should be addressed just like any other performance problem, in a performance review. Otherwise, I stand by my earlier comments on this issue - the market corrects itself. Companies that foster bullies will have a revolving-door workforce, which will ultimately hurt productivity and the bottom line. So there is no confusion, I am not in favor of bullying. However, I'm also not in favor of legislation or policies that attempt to address it as a workplace evil.

Termination versus reasonable accommodation under the ADA

McNary v. Schreiber Foods, Inc. (8th Cir. 8/1/08) asks the question - if a diabetic employee needs to take a break on the job, but is perceived to be sleeping, can the employer lawfully terminate that employee.

David McNary, suffers from Graves disease (an autoimmune disorder with  symptoms that include fatigue) and diabetes. He worked for Schreiber Foods for six years as a sanitation employees on its dairy equipment. Despite his medical conditions, he was never under any work restrictions. However, McNary had many conversations with his co-workers and supervisors about his need for breaks. On occasion, when he felt he could not perform certain tasks due to dizziness and other symptoms, his co-workers stepped in to help him.

On September 22, 2005, while cleaning some trash compactors, McNary became dizzy, sick to his stomach, and light-headed. He left the compactors and sat down, put his feet up on a table, and closed his eyes. According to McNary, he simply took a break but was not sleeping. Two supervisors found him sitting at a table with his head back, his mouth open, and his eyes shut, and he did not appear to have heard an intercom that sounded. McNary denied that he was sleeping, and explained his medical conditions. The Company subsequently terminated him for sleeping on the job.

The Court found that the Company had a legitimate non-discriminatory reason for terminating McNary and was unsympathetic to his claim of pretext:

Federal courts do not sit as a super-personnel department that reexamines an entity's business decisions. One reason we emphasize this point is that a number of plaintiffs present a sympathetic situation in which the employer's judgment in imposing discipline may appear poor or erroneous to outsiders. It is tempting to think that the role of the federal courts is to offer a remedy in that sort of case. Whether we might believe that [Schreiber] was unduly harsh in its treatment of [McNary], however, is not a matter to be considered in deciding this appeal. Our authority is to determine only whether there is a genuine issue for trial on the question whether [Schreiber] discharged [McNary] because of his [disability].

This case, however, should be not have been litigated over the propriety of the termination decision, but instead whether the Company had an obligation to reasonably accommodate McNary's conditions. Remember, the ADA does not only prohibit companies from discriminating against individuals with disabilities, but also requires that companies make reasonable accommodation to enable qualified individuals with disabilities to perform the essential functions of the job. By focusing the termination decision, McNary picked a much more difficult battle to win. Had he focused on the accommodation issue, the company would have had to argue that an unscheduled 15 minute break imposed an undue hardship. That point would have been difficult for the company to win in light of McNary's co-workers' past practice of stepping in to help him when he needed a break.

The takeaway for employers from this case is that just because you can terminate an employee does not necessarily mean that you should. This case could have come out differently if the employee had focused on the lack of an accommodation instead of on the decision to terminate. Any time an employer is dealing with a disabled employee, it is best for the employer to tread very lightly. As this case illustrates, the ADA often raises highly nuanced legal issues, and it may be best to get an opinion from counsel before making the decision.

Indiana pushing for passage of Healthy Families Act to help its own economy

If need any more reasons to work as hard as possible to help defeat the Ohio Healthy Families Act, check out the following editorial from the Seymour, Indiana Tribune:

OUR VIEW: Ohio could boost Hoosier economy

We think Hoosiers should encourage Ohio residents to support an effort that would require Ohio companies with at least 25 employees to offer at least seven sick days a year. Such a program — in Ohio — would be great news for Indiana’s economy.

Service Employees International Union District 1199 is pushing an effort to get that plan on the ballot in November 2008 to help drive Democratic voter turnout, The Associated Press reports.

It would be yet another reason for businesses not to choose Ohio, but that isn’t deterring the union. We say go, brothers, get it on the ballot and get it enacted into law.

Ohio already has high taxes, a higher minimum wage and a smoking ban. Why wouldn’t the union look for one more way to keep jobs from being created there? ...

“Workers should not have to choose between a paycheck and recovery time when they get sick,” the union said in a statement.

Measures like this one will ensure the paycheck won’t even be an option for even more Ohioans and perhaps ensure that more companies like Honda and Nestle choose Indiana over Ohio as homes for their plants, much as they did with announcements last year. Again, that’d be good news for the Hoosier economy.

Let’s hope the idea doesn’t cross the state line.

I've also heard that Indiana has billboards just across the state line from Ohio that read: "Come on IN for lower taxes, business and housing costs".

Our Midwestern neighbors are salivating at the opportunity to steal our businesses and jobs if the Healthy Families Act passes in November. Do not give them the opportunity.

WIRTW #42

On August 11, I will be hosting Blawg Review. For those who are unfamiliar with it, Blawg Review is a weekly review of the best of the blawgosphere, with its hosts rotating with each issue. Because of my Blawg Review responsibilities, WIRTW will be on hiatus next week, to return on August 15. Starting Monday (8/4), however, I will begin accepting submissions for the August 11 issue of Blawg Review. If you would like one of your posts considered, please email it to me with "Blawg Review" in the subject line.

On to this week's best labor and employment law posts:

Michael Moore at the Pennsylvania Labor & Employment Blog asks a question that is near and dear to my heart - is the legal system to blame for humorless work environments?

From a legal perspective, should employees be worried about injecting humor into the workplace and is an employer’s “joke slap-down” necessary? If your humor doesn’t demean people based on their membership in a protected class, then joke away.

It is the “off-color jokes” and other “humor” related to gender, race, national origin, religion or other protected classifications that can be considered harassment. These types of comments always find their way into allegations of discrimination or harassment when a complaint is filed.

I don't think it is necessary to scrub all humor from workplace. Indeed, such a measure could do more harm than good in terms of employee morale. Michael, however, offers several good tips to assist in avoiding liability for humor that does make its way into work.

The aptly named Labor and Employment Law Blog gives us 5 reasons why companies prefer to drug test job applicants as opposed to employees.

Meanwhile, the (not so) Evil HR Lady gives some insight on drug testing from an HR perspective.

The Delaware Employment Law Blog summarizes Senator Obama's promises to working women if he becomes President.

George's Employment Blawg tells everyone how to bulletproof employee investigations.

Finally, John Phillips' Word on Employment Law gives his tip of the week on the importance of written job descriptions.

Associational Retaliation Revisited

In Thompson v. North Am. Stainless, the 6th Circuit recognized a claim for associational retaliation, holding: "Title VII prohibit[s] employers from taking retaliatory action against employees not directly involved in protected activity, but who are so closely related to or associated with those who are directly involved, that it is clear that the protected activity motivated the employer's action." This week, another court, the U.S. District Court in New Mexico, took up the same issue and reached the contrary result.

Ramona Kay Bradford, a Wal-Mart employee, filed a charge of discrimination against Wal-Mart with the EEOC. Two months later, her daughter, Robin, applied for a position at the same Wal-Mart store. Although she received positive feedback from her first interview, Robin was not called back for a second interview. At least five individuals with less schedule availability and lower qualifications were hired. Two months after Robin was rejected, Ramona's son, John, suffered the same fate when he applied for a job at the same Wal-Mart store.

In EEOC v. Wal-Mart, the EEOC alleged that Wal-Mart violated Title VII when it failed to hire Robin and John Bradford in retaliation for their mother’s Title VII charge of discrimination. The court was asked to decide whether Robin and John Bradford could sue for retaliation even though they did not personally "engage in protected opposition to discrimination" or "assist or participate in any manner in an investigation, proceeding, or hearing under [Title VII]." The EEOC took the same position as the Court in Thompson v. North Am. Stainless -- that Title VII prohibits retaliation not only against the person who engaged in the protected activity, but also against "someone so closely related to or associated with the person exercising his or her statutory rights that it would discourage that person from pursuing those rights."

The Court, however, was not persuaded:

Despite the danger that employers might retaliate against an employee’s family member and undermine the overall purpose of the anti-retaliation provision, this Court must apply the plain statutory language unless it results in "an absurd outcome that contravenes the clearly expressed intent of the legislature." ... The clear wording of [Title VII's anti-retaliation] provision limits causes of action to persons who engage in opposition or who participate in some way, even if minimally, in the protected activity. ...  And, expanding the scope of persons by whom an action can be brought beyond the clear language of the statute is not within the purview of the courts, but is the responsibility of Congress.

In other words, if Congress intended Title VII's anti-retaliation provision to reach family members of those who engage in protected activity, Congress would have said so in the statute.

This case illustrates the split on this issue among the various federal courts, a split in which the 6th Circuit is in the minority. At some point, the U.S. Supreme Court will be asked to review this issue. Until then, be mindful that associational retaliation is illegal under federal law in Ohio, Michigan, Kentucky, and Tennessee, even if other courts correctly disagree.

All hail dads

Being a new dad myself, the following headline from the National Law Journal caught my eye: More Men Filing Workplace Lawsuits - Lawyers are calling this a byproduct of the father's rights movement.

According to the article, more men than ever before are filing employment claims. The EEOC saw a record number of sexual harassment complaints filed by men in 2007, and more men are filing FMLA claims based on family responsibilities.

As more and more men assert their right to strike a balance between their jobs and their families, what steps can companies take to avoid claims being brought by disgruntled men?

1. Incorporate harassment against men into general harassment policies and training.
2. Ensure that all leave policies are gender-neutral.
3. Discipline anyone who makes derogatory comments about an employee's paternity leave.
4. Foster a work environment in which no one, male or female, is discouraged or scared from taking time off.
5. Reward actual performance, and not merely hours spent working.

Adopting some these measures in your workplace can help avoid the following, which is believed to be the largest verdict ever entered in favor of a man in a caregiver discrimination lawsuit:

New Wage and Hour Regulations Proposed by Department of Labor

Very quietly and with zero fanfare, the Department of Labor has published proposed new regulation for the Fair Labor Standards Act. The DOL's stated intent to amend regulations that have "become out of date because of subsequent legislation or court decisions." The biggest changes deal with compensatory time, tip pooling, and overtime pay for fluctuating workweeks. There will be much more on these topics if these proposals are formally adopted into the FLSA's regulations.

[Hat tip: Connecticut Employment Law Blog]

Is the glass ceiling self-imposed?

One blogger has theorized that the glass ceiling and the disparity in pay between men and women is self-imposed by women who prioritize motherhood over their careers. Tracy Coenen, on her Fraud Flies Blog, writes that workplace discrimination against women is largely a myth:

The problem here is clear, and it’s not a case of discrimination. It’s that women make choices which put them behind on the career path. I don’t begrudge any woman her right or her choice to have children. However, if she’s going to leave the workforce or reduce her role at work after having children, she can’t expect to keep up with her peer group.

Many say the choices women must make are difficult, as most don’t have a husband who is willing to stay home and perform the traditional role that a “housewife” used to in order that his wife may focus completely on her career. I don’t doubt that’s the case, but women still must be accountable for their own choices in partners, careers, and family life.

These false cries of “discrimination” upset me because when there are legitimate cases of discrimination, I think they are likely to be viewed more skeptically. Let’s use the word discrimination only when it’s really appropriate.

And for women in corporate America, let’s just acknowledge that not being paid as much as men or not attaining as many high-level positions as many is really related to career and family choices. I think our market is efficient, and works well to award pay at a level that is earned by the employee, regardless of gender.

I have to admit, It's an interesting theory, albeit one without any hard data to back it up. I'd like to think that in 2008, we have gotten beyond stereotyping women, minorities, the disabled, etc., and that all employment decisions are based on ability. Of course, that perception would be hopelessly naive. There are still lots of examples of women being passed over because of the family choices they have made.

Employees, regardless of gender, have the right to have a career and a family and not be punished for it. The balance for employers is not to confuse ability with dedication to job over all else. It's when businesses begin to equate performance deficiencies with an employee's family life that the specter of family responsibility discrimination begins to raise its troublesome head.

Governor seeks compromise to keep Healthy Families Act off the November ballot

Governor Strickland has spoken out against the Ohio Healthy Families Act as bad for Ohio businesses, but he is not necessarily opposed to to idea of paid sick days as a concept. Thus, he has been working with both Sick Days Ohio, the group sponsoring the OHFA, and business groups such as Northeast Ohio's Council of Smaller Enterprises (COSE) to forge a compromised bill and keep the OHFA off the November ballot. Governor Strickland is pushing what he calls "principles of sick leave," which are less specific than the current proposal. Regardless of any changes, however, the Cleveland Plain Dealer reports that COSE and other business interests may nevertheless oppose any sort of paid sick leave:

COSE, which represents nearly 17,000 small businesses in Greater Cleveland, is particularly opposed to the coalition's provision that would allow workers to take sick time in small increments. It says such time-keeping would be an administrative nightmare and would potentially disrupt time-sensitive manufacturing.

But eliminating that provision would not lessen COSE's overall opposition to the proposal. ...

COSE is working with the Ohio Chamber of Commerce and other business groups to oppose the ballot issue. They have formed the Ohioans to Protect Jobs and Fair Benefits coalition.

Millard said the coalition wants to raise $10 million for its campaign. He said he would rather see the money invested in job expansion and to help attract businesses but said the coalition has little choice.

Any compromise would have to be reached in the next two weeks. The coalition behind the OHFA has until August 6 to submit 120,000 valid voter signatures to qualify the proposal for the November 4 ballot, and is expected to hit that mark.

Given the philosophical differences between business and labor on this issue, I would be very surprised if the Governor is able to forge a compromise.

WIRTW #41

Another week, another week of excellent employment law posts from around the country for everyone to peruse.

The Delaware Employment Law Blog takes us back to HR Summer School in its second class on the FMLA, this time covering the meaning of a serious health condition.

Ohio Practical Business Law gives us a primer on non-compete agreements under Ohio law.

The Connecticut Employment Law Blog, meanwhile, teaches us about the WARN Act and what companies must do in mass layoffs and plant closures so as not to run afoul of it.

The Pennsylvania Labor & Employment Blog talks about investigating employee misconduct through the surveillance of data.

Finally, Fair Labor Standards Act Law tells us how to properly structure unpaid internships so they don't violate the FLSA.

The federal minimum wage rises, but does anyone in Ohio care?

Today, the federal minimum wage increases to $6.55 an hour. This should be bigger news than it is, but in Ohio this increase will have almost no impact at all. Thanks to 2006's minimum wage ballot initiative, Ohio's minimum wage in already $7.00 an hour. So, file this information away as interesting trivia, and know that Ohio already outpaces the federal government by $.45 an hour.

Don't estop yourself into coverage

Lots of statutes have thresholds that must be met for coverage. For example, the FMLA only applies to employees with at least 1 year of tenure who worked at least 1,250 hours in the preceding year for an employer with 50 or more employees. As Peters v. Gilead Sciences (7th Cir. 7/14/08) illustrates, those thresholds are not the only way an employee can be covered.

There was no dispute that Peters was not eligible for statutory FMLA leave. Nevertheless, at the outset of his medical leave of absence, Gilead sent him a letter stating that "all employees" were eligible. Gilead's employee handbook makes a similar promise of 12 weeks of medical leave. Because of those representations, Peters might be eligible for medical leave under a promissory estoppel theory, and it may have been illegal for Gilead to replace him while on such leave:

Gilead’s handbook does not exclude any employees from the entitlement to 12 weeks of family and medical leave except those who do not meet the basic prerequisites of 12 months’ employment with the company and 1,250 hours of work in the preceding 12 months. There is no reason employers cannot offer FMLA-like leave benefits using eligibility requirements less restrictive than those in the FMLA .... and that is what Gilead did. Peters’ statutory ineligibility is irrelevant....

In other words, because Gilead promised leave, Peters was entitled to rely on that promise and enforce it to the extent that he relied on it to his detriment.

There are two critical lessons for employers to take away from this case:

1. Triple-check employee handbooks for appropriate disclaimers. The key to a promissory estoppel claim is that any detrimental reliance was reasonable. A disclaimer in a handbook that tells employees that the handbook is not a contract but a general statement of company policy, that the company has the ability to modify such policy at any time, and that employees are not to rely upon anything in the handbook as binding on the company, would go a long way to showing that an employee's reliance was not reasonable.
2. Be careful what you tell employees. The handbook notwithstanding, if you represent to an employee that s/he is entitled to a benefit (such as FMLA leave) you better be prepared to stand behind that statement and live up to everything that goes along with it. Before you tell an employee that s/he is covered by the FMLA, it is best to check whether that statement is accurate. That checking may require a 15 minute phone call to your employment counsel. That 15 minute phone call, however, could save your company 2 years of litigation hell.

EEOC issues new guidance on religious discrimination

This week, the EEOC issued three new publications on religious discrimination: a new chapter in its Compliance Manual, a Q&A, and Best Practices for Eradicating Religious Discrimination in the Workplace. While these documents are not binding, and a court is free to interpret Title VII as it sees fit, it is always good to know how the EEOC views the workplace discrimination landscape.

The Best Practices will prove to be the most helpful for employers. It's not earth shattering, but does give businesses a helpful synopsis of standards that will help minimize liability, such as:

• Carefully and timely recording the accurate business reasons for disciplinary or performance-related actions.
• Ensuring that an anti-harassment policy covers religious harassment.
• Training managers and supervisors on how to recognize religious accommodation requests from employees, and developing internal procedures for processing religious accommodation requests.
• Making an individualized decision instead of one based on stereotypes in determining whether a request for an accommodation poses an undue hardship

[Hat tip: Connecticut Employment Law Blog and Manpower Employment Blawg]

Illustrating the dangers of the Healthy Families Act to Ohio

Yesterday, a commenter left the following on my earlier post, Deconstructing the Ohio Healthy Families Act:

What effect will this have on attracting new business to Ohio? Just the administrative burden alone is formidable, let alone the potential costs. If I have the responsibility of choosing between building a new plant in Ohio, which has the mandated 7 paid sick days, or another state which doesn't have such a provision, I would have to have a lot of other positives to the Ohio location.

This comment underscores just how critical it is to defeat this measure in  November. Ohio is at an economic crossroads, and yet we have the opportunity to bring our state forward into the 21st century. That opportunity includes a burgeoning bio-medical industry to work in tandem with our outstanding hospital systems, and Governor Strickland's efforts to lure so-called "green" companies to Ohio to help develop alternate fuel sources. Enacting legislation that will create labor costs to do business in Ohio that do not exist in any other state is not the way to go about curing our state's ills. We need incentives for companies to settle in Ohio, not incentives for them to look elsewhere and leave.

The OHFA is a wolf in sheep's clothing. Ohioans going to the polls in November will be drawn to vote in its favor because people think that they want paid time off. If there are no jobs left in Ohio because this measure passes, what good will it do?

Some employees should just sail off into the sunset

Every once in a while, you come across a case that, when you read it, makes you wonder why the employee would ever even consider filing a lawsuit. Maurer v. Franklin County Treasurer (Franklin Cty. 7/10/08) is one such case. Chris Maurer was a tax collector in the Delinquent Tax Division of the Franklin County, Ohio, Treasurer's Office. His employer assigned him to work at its booth at the Reynoldsburg Tomato Festival. The County's booth was next to the booth for the Catalyst Church. Manning the Catalyst Church booth were two women in their early 20s, Faith and Jennifer Thoms. The opinion describes what happened:

While Faith was engaged in play with some children, [Maurer] came to the church booth and sat in one of the chairs. [Maurer] began playing with the bubble gun that was there for children's entertainment and, as a result, the liquid or bubbles from the gun spilled onto his hands and a map he had. [Maurer] went to Faith and wiped them on her thigh. After calling Faith's sister-in-law Jennifer to him, he wiped the map on Jennifer's thigh and on her skirt; she told him to stop. The two women attempted to resume their activities, but [Maurer] again called Jennifer over to him. He put his hand up the side of her above-the-knee skirt and then wiped his soapy hands down her thigh and her calf. Faith intervened, standing between them while she answered a phone call, and told him to stop. Meanwhile, the woman Jennifer had been speaking with walked away after witnessing [Maurer's] actions. During his time at their booth, [Maurer] repeatedly talked about wanting a massage and inquired who would give him one.

Ultimately, [Maurer] got up from the chair in the church's booth to put candy wrappers in the trash, and both women sat in the chairs so appellant could no longer occupy them. [Maurer] co-worker, Billie Grier, was not present during the incident, as [Maurer] had sent her out of the booth area for various reasons. When Grier returned, Jennifer and Faith told her to tell [Maurer] they were underage so he would leave them alone. Grier advised that supplying [Maurer] with such information probably would not help, as women in the office did not trust him with their teenage daughters.

Jennifer reported the incident to the Treasurer's Office, which conducted an investigation, and, after a hearing terminated Maurer's employment for "immoral conduct, discourteous treatment of the public, mistreatment of the public and sexual harassment."Not surprisingly, the court upheld the termination decision.

Too often, I write about cases in which employers did the wrong thing, either in making the decision to terminate an employee or in not properly investigating a harassment complaint. This case provides a good illustration of an employer that did everything right. It received a complaint of inappropriate conduct by an employee, promptly and thoroughly investigated, and terminated his employment.

This case also teaches a broader lesson. No termination is bulletproof. Even the most rock-solid termination can result in a lawsuit by a disgruntled employee. That fear, however, should not hamstring employers from making appropriate termination decisions based on legitimate reasons.

WIRTW #40

Actually, I'm not reading much this week, but I have pegged a few articles that might be of interest to everyone.

First, congratulations to Michael Fox. His Jottings By An Employer's Lawyer, the granddaddy of employment law blogs, celebrated its 6th anniversary this week. In honor of this milestone, he has graciously published a list of his colleagues around the country who have jumped on the employment law blogging bandwagon since he started.

The Delaware Employment Law Blog takes us to school with a great FMLA hypothetical spun out of Brad and Angelina's twins.

BLR's HR Daily Advisor asks whether employers have a duty to accommodate employees' alcoholism.

Finally, the Connecticut Employment Law Blog calls out the PC police on the term "intellectual disability," and asks what's wrong with good old fashioned "mental retardation." It's a valid question, but with the times, acceptable lingo changes. Just as it's no longer in vogue to refer to black people as "colored," our refined sensibilities have called into question some of the terminology we use to refer to the disabled.