Reminder: It’s not too late to RSVP for KJK’s Breakfast Briefing

There is still time to RSVP for KJK’s inaugural Employment Law Breakfast Briefing: The Top 10 Labor & Employment Law Issues to Face Your Business in 2009. We’ll discuss topics such as the recent ADA Amendments, the new FMLA regulations, legislation President Obama is likely to sign in 2009, the crush of wage and hour litigation, and handling employee layoffs and terminations in a difficult economy. Help prepare your organization for these issues by spending a couple of hours of your morning with KJK’s Labor and Employment Law attorneys.

The seminar will be held Wednesday, January 28, 2009, at The Club at Key Center located at 127 Public Square, Cleveland, OH 44114. The agenda is as follows:

Presenters: Rob Gilmore, Alan Rauss, and Jon Hyman

Agenda
8:00-8:30 Breakfast
8:30-9:30 Presentation
9:30-10:00 Q&A

The event is free and parking will be provided.

If you are interested in attending, or for more information, please contact Andrea Hill, (216) 736-7234 or ach@kjk.com, by January 23, 2009.

Do you know? Ohio’s jury duty rules for employers

Do you know? Ohio has specific rules that govern how employers handle employees who are summoned for jury duty – Ohio Revised Code 2313.18.

Rule number 1 is simple. It is illegal for an employer to discharge, threaten to discharge, or take any disciplinary action that could lead to the discharge of any permanent employee summoned to serve as a juror, provided that the employee gives reasonable notice to the employer of the summons prior to the commencement of the employee’s service as a juror and if the employee is absent from employment because of the actual jury service.

Rule number 2, though, is counter-intuitive. It is illegal for an employer to require or even request an employee to use vacation time, or sick leave, or other paid time off for time spent responding to a jury duty summons, time spent participating in the jury selection process, or time spent actually serving on a jury.

Rule number 3 provides some relief for small businesses. If a company with 25 or fewer full-time employees (or their equivalent) has more than one employee summoned for jury duty within the same court term, the court must postpone and reschedule the service of the later-summoned employees.

Companies should take these rules seriously. Violations can be punished as contempt of court, and employees terminated in violation of this statute could pursue a wrongful discharge claim.

Drafting an appropriate social networking policy

According to a recent report published by the Pew Internet & American Life Project, the percentage of adults who use social networking sights such as MySpace, Facebook, and LinkedIn has more than quadrupled in the past four years – from 8% in 2005 to 35% in 2008. By age, the stats break down as follows:

• 18 – 24: 75%
• 25 – 34: 57%
• 35 – 44: 30%
• 45 – 54: 19%
• 55 – 64: 10%
• 65 & over: 7%

For American businesses, these numbers mean that a large quantity of workers have profiles on any number of social networking sights (yours truly included). They also mean that if your internet or technology policy does not cover the appropriate use of social networking and blogging you are leaving yourself potentially exposed for abuse, embarrassment, and potential liability. 

Let me offer a few thoughts on putting together a policy to cover employees’ use of social networking.

1. A blanket prohibition does not make sense. I am not a fan of draconian policies. They cause more harm than good. They are bad for morale, drive away quality employees, beg for violations, and hamstring employers into making personnel decision they might not otherwise want to make when the policy is violated. If the reality is that a large chunk of employees are social networking, employers should embrace this medium within reason.

2. Employees need to understand that with the ability to use social networking comes responsibility. If a profile can link someone to their place of employment, the employee cannot post anything that could potentially embarrass or otherwise reflect poorly on his or her employer. This policy is one of common sense. Posting where you went to college is acceptable, posting pictures of yourself drunk while in college is not.

3. Use while at work should be governed by a company’s general internet protocol. If a company permits limited personal use at work (which most should), then the same ability should be extended to employees’ social networking activities.

These types of policies are governed by one guiding principle – treat employees like adults and assume that they will return the favor until they prove otherwise.

[Hat tip: Delaware Employment Law Blog]

WIRTW #62

What are my contemporaries writing about this week? Let’s take a look.

George’s Employment Blawg and the National Law Journal both share their thought on whether recession-era juries will be good or bad to employers.

The HR Capitalist gives his opinion on whether fighting labor unions was good or bad for Starbuck’s corporate image.

The Pennsylvania Labor & Employment Blog provides a handy HR compliance checklist for the new year.

The Delaware Employment Law Blog continues its back to school course on the FLSA with a lesson on recordkeeping.

The Employment Law Blog answers why severance agreements always advise the employee to consult with an attorney.

Workplace Privacy Counsel breaks down privacy concerns in the new FMLA regulations.

KnowHR Blog reminds everyone that confidentiality is key during layoffs.

The Washington Labor & Employment Wire reports on two recent DOL opinion letters on wage and hour issues for tipped employees.

Human Rights in the Workplace discusses an interesting sex harassment case from our neighbors up north.

Tomorrow is “FMLA Day.” Is your company ready?

Tomorrow, January 16, is FMLA Day – the day the new FMLA regulations take effect. If a business is covered by the FMLA (it employs 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year), there are certain steps it should be taking to get ready for the changes.

1. Post the Revised FMLA Poster.

2. Distribute a revised FMLA Policy or make appropriate handbook amendments.

3. Take out of circulation old FMLA forms (Employer Response to Employee Request for FMLA Leave and Certification of Health Care Provider, for example), which are no longer legal to use.

4. Put into use the new form to notify employees of their FMLA eligibility, to be used within five business days of an employee’s request for FMLA leave or the employer’s other notice of the need for leave.

5. Put into use the two new medical certification forms, one for an employee’s own serious health condition, and the other for an employee’s family member’s serious health condition.

6. Put into use the new FMLA designation notice, which must be given to an employee within five business days after an employer has received sufficient information to determine whether an employee’s leave is covered by the FMLA.

7. Make sure that the appropriate forms are being used for military family leave – one for the certification of qualifying exigency and one the certification for a serious injury or illness of a covered servicemember.

8. Train all HR personnel, managers, and supervisors on the mechanics of the new FMLA regulations.

For more information on the key FMLA changes, you can review these earlier posts:

• Summary of new FMLA Regulations: 10 Key Changes.

• Summary of new FMLA Regulations: Military Family Leave.

• New FMLA Regulations: What do they mean to notice and designation obligations to employees?

Hooters sued for not hiring men

An alleged rejected male job applicant for a food server position at a Corpus Christi, Texas, Hooters has filed a class action sex discrimination lawsuit against the restaurant chain. He claims that Hooters refuses to even consider men for food server positions. According to the lawsuit:

Hooters attempts to circumvent the law by referring to its waiters as “Hooters Girls.” Hooters contends that since its food servers are Hooters Girls, males may not be employed in that role. Hooters is incorrect, since, in the stores, Hooters Girls’ primary function is to serve food and drinks. A male or female can perform this function and, therefore, Hooters is not entitled to the defense of bona-fide occupational qualification.

Because it is discriminatory on its face to refuse to hire an entire gender, Hooters will certainly rely on the “bona fide occupational qualification defense.” A BFOQ is a defense to discrimination based on age, sex, religion, or national origin (but, importantly, not race discrimination). It permits discrimination where the protected class (such as sex) is reasonably necessary to the normal operation of that particular business or enterprise. To qualify as a BFOQ, a job qualification must relate to the essence, or to the central mission of the employer’s business. A classic example of a BFOQ is safety-based mandatory retirement ages for airline pilots.

This case will largely hinge on the perception of the real nature of Hooters’ product – does Hooters sell sex or wings? If it’s the former Hooters win, the latter the plaintiff wins. The reasonable view is that Hooters sell wings by using the sex appeal of its servers. If this view prevails, then the plaintiff is probably out of luck.

If I was representing Hooters, I would advise it to give serious consideration to offering the plaintiff a position under the same conditions as it hires all of its female food servers. He would have to wear the same uniform and show off the same cleavage. His acceptance would show his lack of qualification, and his refusal it would show his true motivation for filing suit, while also likely cutting off his economic damages.

[Hat tip: Courthouse News Service, via Above the Law]

Do you know? “Comp” time in lieu of overtime

Do you know? Unless you are a state or local government, it is illegal to provide “comp” time in lieu of time-and-a-half for hours worked in excess of 40 in a work week.

Federal law requires that all non-exempt employees receive an overtime premium of one-half the regular rate of pay for all hours worked in excess of 40 in a given work week. To save on wages, some employers seek to provide overtime as “comp” time to employees. In other words, instead of paying an employee time-and-a-half for overtime worked, the employee would be paid the regular straight time rate, and receive an additional half-hour of paid time off to be banked and used in the future. Under the FLSA, this practice is illegal for private employers. It interferes with employees’ right to be paid their overtime premium.

For state and local governments, the FLSA has a specific provision that allows for the payment of comp time in certain circumstances, such as where it is provided for in a collective bargaining agreement or other agreement between the employer and employee.

For most employers, though, implementing a comp time program to skirt overtime obligations is a huge wage and hour no-no.

What do the recent ADA amendments really mean to employers?

A lot of ink has been spilled about the nuts and bolts of the amendments to the ADA. The amendments make some key fundamental changes to various definitions in the statute, such as to the definition of disability. So, for example, mitigating measures are no longer to be taken into consideration when determination whether an individual has a “disability.” (For more information on the ADA Amendments Act, see House overwhelmingly votes in favor of ADA Amendments Act of 2008).

Much of the ADA Amendments Act, though, is legal minutiae that may be of interest to employers litigating ADA lawsuits, but of little interest to employers running their businesses on a daily basis. Provided that job descriptions are up to date, supervisors are trained on reasonable accommodations and interactive processes, and employees are receiving appropriate accommodations, employers’ day-to-day experiences under the ADA should not change all that much.

So, what then will change? For businesses, the most significant change will be in the cost of defending ADA lawsuits. Most agree that the changes to the definition of disability will make it harder for employer to win dismissals of ADA cases on summary judgment. Because fewer cases will be summarily dismissed, more cases will go to juries for resolutions. This higher incidence of jury issues in ADA cases will increase both defense costs and settlement value in these cases. Because of the potential for increased costs, businesses should be prepared to be extra-vigilant in their handling of employees with potential disabilities.

WIRTW #61

What I’m Reading returns after an extended holiday break.

To follow up on my post from earlier this week on the Ledbetter Fair Pay Act, Michael Moore’s Pennsylvania Labor & Employment Blog comments on the record retention nightmare that this law would create for employers. Michael also has some good thoughts on compliance with the ADA Amendments Act.

In the wake of Boston College firing its head football coach after he accepted an interview with the New York Jets, Gruntled Employees has some thoughts on employee loyalty.

The Workplace Prof Blog reports on a recent NLRB decision that found an unfair labor practice from an attorney’s deposition questions.

With tongue firmly planted in cheek, LaborPains offers 10 New Year’s resolutions for labor union officials.

Where Great Workplaces Start gives us another list, the top 5 ways to be an HR hero in 2009.

The Cleveland Law Library Weblog reminds everyone that as of 1/1/09, Ohio’s minimum wage increased to $7.30 per hour.

Overlawyered brings the story of four Piqua, Ohio, employees who are suing their co-workers for their share of a $207 million Mega-Millions payout. Their claim: “The four said they were out of the office and unavailable to contribute to the office pool for the Dec. 12 drawing but allege an oral agreement that winnings would be shared whether workers happened to be around to contribute or not.”

The Word on Employment Law with John Phillips reminds us that some people simply have too much time on their hands. The evidence, an EEOC complaint alleging religious discrimination stemming from an employee’s use of “Merry Christmas” instead of “Happy Holidays.”

The ABA Journal reports on a Hooters Waitress, fired for having visible bruises courtesy of some domestic abuse, who won her unemployment claim.

The Delaware Employment Law Blog asks a very important question: Why don’t employers care about employees’ internet use?

Jottings By An Employer's Lawyer compares whether recession juries are good or bad for employers. I agree with Michael that large jury awards are usually fueled by anger against the employer and not sympathy for the employee. If this is true, then lawyers picking juries for the foreseeable future will want to try to weed out those potential jurors who have been affected by the recession and harbor anger against corporations as a result.

Maybe you’ve heard, but Wal-Mart recently settled almost all of its pending 76 wage and hour class actions for a staggering $640 million. The Wall Street Journal’s Law Blog suggests that Wal-Mart might have been motivated the Employee Free Choice Act and ponied up as a preemptive strike against unionization.

Meanwhile, World of Work argues that the Employee Free Choice Act may not be as done of deal as some other commentators are suggesting.

Another hot legislative issue, family and caregiver issues, will receive special attention during President Obama’s administration, according to Corporate Voices for Working Families.

Finally, the FMLA Blog reports on a case in which the court held that an employer’s honest suspicion of employee fraud justified its insistence for a second medical opinion.

Five “must haves” for your employee handbook

I’m in the process of drafting an employee handbook, which got me thinking – what are the policies that every handbook absolutely must contain? I came up with a list of the top five “must have” policies.

1. At-will employment disclaimer. I can’t imagine anything worse than an employee being able to successfully claim that an employee handbook creates a contract with the employer, or provides something on which the employee can reasonably and justifiably rely. This disclaimer should be in writing, both in the handbook and on a receipt that employees sign and is placed in their personnel files.

2. Anti-harassment. It’s impossible to take advantage of the Faragher-Ellerth affirmative defense for harassment liability without a policy of which employees can avail themselves.

3. No-solicitation. In light of the implications of the Employee Free Choice Act, it is vitally important to safeguard against non-business uses of company property. Any non-solicitation policy should cover written and oral solicitations, in addition to e-mail and computer systems.

4. Technology. A comprehensive technology policy guards against improper uses of e-mail and computer systems, limits personal uses of company property, tempers employees’ privacy expectations, and protects against potential harassment liability. A very versatile policy that no business should be without.

5. FMLA. If your company is covered by the FMLA, it is required to have an FMLA policy. The new regulations clarify this obligation.

Ledbetter Fair Pay Act likely to be first employment legislation of the Obama Presidency

According to Monday’s New York Times, Congressional Democrats are looking to fast-track the Lilly Ledbetter Fair Pay Act. This should not come as any surprise, given Ms. Ledbetter’s prominent speaking position at last summer’s Democratic convention.

Recall that in Ledbetter v. Goodyear Tire & Rubber Co., the Supreme Court ruled that in pay discrimination cases the federal statute of limitations begins to run when the pay-setting decision is made:

Current effects alone cannot breathe life into prior, uncharged discrimination.... Ledbetter should have filed an EEOC charge within 180 days after each allegedly discriminatory pay decision was made and communicated to her. She did not do so, and the paychecks that were issued to her during the 180 days prior to the filing of her EEOC charge do not provide a basis for overcoming that prior failure.

According to the Court, its narrow reading of the statute of limitations “reflects Congress’s strong preference for the prompt resolution of employment discrimination allegations through voluntary conciliation and cooperation.” Or, at least prior Congresses, as this Congress will certainly pass the Ledbetter Fair Pay Act.

This law will provide that a new and separate violation occurs each time a person receives a paycheck resulting from “a discriminatory compensation decision.” Thus, each paycheck that reflects an alleged discriminatory pay decision will start a new and distinct limitations period. 

Businesses should brace themselves for longer statutes of limitations for pay discrimination claims. Once the Fair Pay Act becomes law, it will be more difficult for companies to know at what point in time a pay decision can no longer be challenged. This law’s Congressional supporters have spoken of the need for fairness. Fairness, however, works both ways, both for employees and employers. A perpetual statute of limitations for pay discrimination claims fosters a perceived fairness for the former at the expense of the latter.

Do you know? The FLSA’s Administrative Exemption

Do you know? What does it take for an employee to qualify under the Fair Labor Standards Act’s Administrative Exemption?

To qualify for the administrative employee exemption, all of the following tests must be met:

• The employee must be compensated on a salary or fee basis (as defined in the regulations) at a rate not less than $455 per week;

• The employee’s primary duty must be the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer’s customers; and

• The employee’s primary duty includes the exercise of discretion and independent judgment with respect to matters of significance.

“Primary duty” means the principal, main, major or most important duty that the employee performs, with the major emphasis on the character of the employee’s job as a whole.

Work “directly related to management or general business operations” includes, but is not limited to, work in functional areas such as tax; finance; accounting; budgeting; auditing; insurance; quality control; purchasing; procurement; advertising; marketing; research; safety and health; personnel management; human resources; employee benefits; labor relations; public relations; government relations; computer network, Internet and database administration; legal and regulatory compliance; and similar activities. It’s work directly related to assisting with the running or servicing of the business, as distinguished from working on a manufacturing production line or selling a product in a retail or service establishment. It also covers employees acting as advisors or consultants to their employer’s clients or customers.

The exercise of discretion and independent judgment involves the comparison and the evaluation of possible courses of conduct and acting or making a decision after the various possibilities have been considered. It implies that the employee has authority to make an independent choice, free from immediate direction or supervision. Factors to consider include, but are not limited to:

• whether the employee has authority to formulate, affect, interpret, or implement management policies or operating practices;
• whether the employee carries out major assignments in conducting the operations of the business;
• whether the employee performs work that affects business operations to a substantial degree;
• whether the employee has authority to commit the employer in matters that have significant financial impact; and
• whether the employee has authority to waive or deviate from established policies and procedures without prior approval.

“Matters of significance” refers to the level of importance or consequence of the work performed.

Information on other FLSA exemptions is also available:

• The Executive Exemption.

Next week, we'll examine the Professional Exemption.

Blawg Review of the Year nominations

For the uninitiated, Blawg Review is a weekly compilation of the prior week’s best posts from the legal blogosphere. It’s peer-reviewed, which means that each week a different blogger hosts the carnival. I had the pleasure of hosting Blawg Review #172 in August, which means that I’ve earned the right to vote for Blawg Review of the Year 2008. In chronological order, here are my votes:

Blawg Review #147, hosted by Rush Nigut of Rush on Business, for teaching me more than I ever thought I could know about Iowa’s geography.

Blawg Review #153, hosted by Declarations and Exclusions, because it’s always fun to talk like a pirate.

Blawg Review #164, hosted by cearta.ie, for transporting me back to the best vacation I’ve ever taken, my 2 weeks in Ireland.

Blawg Review #191, hosted by Likelihood of Confusion, for all of the little Jewish boys and girls who never had a Rankin-Bass holiday special to call their own.

Announcing the KJK Employment Law Breakfast Briefing

On Wednesday, January 28, 2009, Kohrman Jackson & Krantz will hold its inaugural Employment Law Breakfast Briefing: The Top 10 Labor & Employment Law Issues to Face Your Business in 2009.

Spend part of your morning with KJK’s Labor and Employment Law attorneys to learn about the emerging issues that will challenge your business and your employee relations in the coming year – the Employee Free Choice Act, the new FMLA regulations, the ADA Amendments Act, and other key issues. 2009 will likely be the most demanding year employers have faced in decades. Get a leg up on all of these changes in an informal discussion with KJK’s Labor & Employment team.

Date: Wednesday, January 28, 2009
Time: 8:00-8:30 Continental Breakfast
          8:30-9:30 Presentation
          9:30-10:00 Q&As
Place: The Club at Key Center, 127 Public Square, Cleveland, OH 44114

If you are interested in attending, or for more information, please contact Andrea Hill, (216) 736-7234 or ach@kjk.com, by January 23, 2009.

Presented by Kohrman Jackson & Krantz

A few predictions for 2009

Since I ended 2008 with a look back at the top stories of the past year, I thought I’d start 2009 with a look forward at what to expect in the new year.

1. Sexual Orientation will Become a Protected Class.

Under current federal and Ohio law, it is not illegal to discriminate in employment on the basis of sexual orientation. President Obama will seek to change this omission. One need only look to Change.gov, President Obama’s administration’s website, to glean that he will target the elimination of discrimination based on sexual orientation and gender identity:

The Obama-Biden Transition Project does not discriminate on the basis of race, color, religion, sex, age, national origin, veteran status, sexual orientation, gender identity, disability, or any other basis of discrimination prohibited by law.

The Employment Non-Discrimination Act would add sexual orientation and gender identity to the litany of classes protected from discrimination in employment by Title VII. Note that in the 6th Circuit, discrimination on the basis of real or perceived gender identity is already illegal as sex discrimination. Eliminating discrimination on the basis of sexual orientation should pass with ease. The facet of the ENDA that focus of gender identity is much more controversial, but at least in Ohio, is largely unnecessary in light of Smith v. Salem. Nevertheless, the ENDA should become law this year.

2. Family Responsibility Issues Will Receive Special Attention from President Obama.

In September, Governor Strickland and Senator Sherrod Brown persuaded union leaders to remove the Ohio Healthy Families Act from November’s ballot. If passed, it would have required all businesses with 25 or more employees to grant all employees seven paid sick days per year, with a prorated amount for part-time employees. The same measure will be introduced on a national level in this Congress, it will pass, and President Obama will sign it into law.

President Obama also favors making certain key changes to the FMLA. He will seek to loosen the definition of “employer” from 50 or more employees to 25 or more employees. He will also seek to expand the categories of covered leave to include elder care, children’s school activities, domestic violence, and sexual assault. It is a safe bet that some of these FMLA amendments will become law at some point in the next four years, if not this year.

3. Employment Litigation Will be Hot in 2009.

2009 will test my theory that the strength of the economy is inversely proportional to the number of lawsuits filed against employers. By all accounts, the economy will continue to slump well into 2009. As more employees lose their jobs, whether by layoff, plant closures, or good old fashioned terminations, they will look to the OCRC/EEOC and the courts for help. I expect age discrimination, WARN Act, and wage and hour claims to fuel this litigation boom.

4. The Employee Free Choice Act will Face an Uphill Battle.

A Senate filibuster blocked the EFCA on its last consideration. As the Democrats will not reach the magic super-majority of 60 Senators necessary to block a Republican filibuster, this controversial law will face stiff opposition. Despite all of the doom and gloom prognostications, I do not believe that the EFCA will become law in its current form. The only way it would ever defeat a Republican filibuster is if it was presented in a compromised, watered-down form.

Nevertheless, it is not too early for businesses to start planning for the possibility of card-check union recognition. The best defense against a labor union is a combination of positive employee relations, an open door for employees to air grievances, and a fair, even-handed management. If the EFCA becomes law, it will too late to fight a union once the cards are signed. The only way to combat an organizing drive, especially one that you do not know about, is to proactively make your work environment one that employees will not want to unionize.

Top 10 Labor & Employment Law Stories of 2008: Nos. 2 and 1

Today brings us to the end of our countdown, and the top two labor and employment law stories of the year. Each of these stories will have far reaching implications into 2009:

2. The economic downturn and the proliferation of layoffs and shutdowns: It’s no secret that our economy is in the toilet, and will continue to be at least in the short term. Companies have been and will continue to shed employees and operations as they try to stay afloat or fail. Unemployment insurance systems will continue to be stressed to the max. As employers continue to feel economic pressure, acronyms like OWBPA and WARN will continue to be on the tips of their tongues and at the core of employees’ fears. This story very well could climb to number in 2009 as the economy is predicted to continue to suffer, and employment lawsuits are expected to continue to rise.

1. The election of President Obama: In the last two years, the Democratic majorities in the House and Senate have proposed a cornucopia of new labor and employment laws – Employee Free Choice Act, Employment Non-Discrimination Act, Ledbetter Fair Pay Act, Arbitration Fairness Act, Working Families Flexibility Act, Independent Contractor Proper Classification Act, RESPECT Act, Equal Remedies Act, Civil Rights Act of 2008, and the Health Families Act. While jump starting the economy should preoccupy the new administration, we cannot overlook that Senator Obama sponsored most if not all of these bills. With the Democrats in charge of the White House and Capitol Hill for the first time in 14 years, there is a real chance that we will see the most sweeping changes to our nation’s labor and employment laws in decades. This story is number one in 2008, and very well could repeat as the top story of 2009, 2010, 2011, 2012, and beyond.

Top 10 Labor & Employment Law Stories of 2008: Nos. 4 and 3

Today brings us numbers 4 and 3 of our countdown of the year’s top labor and employment law stories:

4. President Bush signs the ADA Amendments Act: The ADA Amendments, which go into effect Jan. 1, will undo several employer-friendly Supreme Court decisions that limited who could qualify as “disabled” under the statute. These amendments will make it easier for an employee to qualify for protection under the ADA, and make it harder for employer to get cases dismissed on summary judgment on the issue of whether an employee is disabled.

3. President Bush enacts new FMLA provisions for military leave, and the Department of Labor publishes new FMLA regulations: Thanks to the National Defense Authorization Act for FY 2008, the FMLA now provides for additional unpaid leave for family members to care for a servicemember with a serious illness or injury suffered in the line of duty, and for employees to take FMLA leave for certain emergencies stemming from a family members’ active duty. In a few weeks, the DOL’s regulations interpreting these new provisions and reinterpreting the original FMLA will go into effect. Covered employers will have to re-learn the FMLA in light of these new regulations, which, while being employer-friendly, significantly change how the FMLA operates. An already confusing statute is going to become that much more confusing, at least in the short-term.

Top 10 Labor & Employment Law Stories of 2008: Nos. 6 and 5

Our year-end countdown the year’s top 10 labor and employment law stories continues with numbers 6 and 5:

6. The Ohio Supreme Court holds that retained memories can qualify as trade secrets: In Al Minor & Assocs. v. Martin, the Ohio Supreme Court held that a customer list compiled by a former employee strictly from retained memory can form the basis for a statutory trade secret violation. According to the Court, information that constitutes a trade secret does not lose its character by being recreated from memory. In doing so, it not only greatly expanded the scope of statutory trade secret claims, but also expanded the class of employees against whom a non-competition agreement can be held to be enforceable.

5. The Ohio Healthy Families Act crashes and burns as its supporters pull it off the November ballot: The Ohio Healthy Families Act, if passed, would have provided 7 annual days of paid sick leave to employees of all Ohio employers with 25 or more employees. Thanks to an 11th hour compromise struck by Gov. Strickland and Sen. Brown, the SIEU agreed to remove this measure from November’s ballot. Had this measure been on the ballot, it would have likely passed, making Ohio the first state to mandate such a paid benefit. The last thing Ohio’s economy needs is a disincentive for businesses to call our state home. Thankfully, common sense prevailed.

Top 10 Labor & Employment Law Stories of 2008: Nos. 8 and 7

We continue our year-end countdown of 2008’s top 10 labor and employment law stories with numbers 8 and 7:

8. Wage and hour lawsuits continue to dominate federal court filings: Few if any companies do wage and hour perfectly. Save yourself the headache of defending a class action for misclassified employees or off-the-clock work and make 2009 the year your business audits its wage and hour practices.

7. The Genetic Information Nondiscrimination Act becomes law: In May, President Bush signed GINA into law, one of several significant statutory employment law changes during the year. GINA adds “genetic information” to the list of classes of employees protected by the federal employment discrimination laws. It makes it unlawful for an employer to fail or refuse to hire, or to discharge, any employee, or otherwise to discriminate against any employee with respect to the compensation, terms, conditions, or privileges of employment of the employee, because of genetic information with respect to the employee. Expect the EEOC to issue regulations interpreting this statute at some point in 2009.

Top 10 Labor & Employment Law Stories of 2008: Nos. 10 and 9

A couple of Sundays ago, the New York Times suggested that more and more companies will be flat out shutting down for the last week of the year as a cost-savings move:

Normally, the unfortunate people who are stuck at work during the molasses-slow week between Christmas and New Year get to know its spooky charms. Corridors and conference rooms lie empty, the telephone on the desk sits as quiet as a headstone.

But this year, a week that is usually just carefree and unproductive is likely to be positively dead. Companies in industries like high technology and manufacturing, pressed to the wall by the recession, are forcing workers to take the week off for accounting reasons as well as to reduce lighting and heating bills. Other people will also be taking the week off for the first time — not to dash off to ski at Killington, Vt., but because they lost their jobs.

I normally don’t like to be labeled a bandwagon jumper, but I happily will be joining this trend by taking off for the remainder of the year. Let me take this opportunity to wish everyone Happy Holidays (whatever your holiday of choice happens to be) and Happy New Year. I’ll see everyone back with fresh content in 2009.

Fear not, however, I will not leave everyone without something to read between now and Jan. 1. For the rest of the year, I will be counting down the top 10 labor and employment law stories of the year. We start today with numbers 10 and 9:

10. The 6th Circuit recognizes a claim for associational retaliation: In Thompson v. North Am.Stainless, the 6th Circuit expanded Title VII retaliation liability to cover adverse actions taken against those "who are so closely related to or associated" with employees who engage in protected activity. The question of how close is close enough is still open, and subject to lots of debate.

9. The 6th Circuit sets a very low bar to survive summary judgment in a mixed motive discrimination case: In White v. Baxter Healthcare Corp., the 6th Circuit held that the traditional McDonnell Douglas burden-shifting framework does not apply to the summary judgment analysis of a Title VII mixed-motive claim. Instead, to survive a motion for summary judgment, a Title VII plaintiff need only show: (1) that an adverse action occurred, and (2) some evidence that the protected class was a motivating factor for that adverse action. This is a very low threshold to meet, and will lead to fewer summary judgments being granted in this circuit.