WIRTW #73

After last week’s glut of posts on the Employee Free Choice Act, I bring you this week’s EFCA-free WIRTW.

This week the Supreme Court held oral argument in Gross v. FBL Financial Services, which will hopefully give some much needed clarity on the proper standard for obtaining a mixed-motive jury instruction in discrimination cases. For details and analysis, read Marcia McCormick’s thoughts at the Workplace Prof Blog. Dan Schwartz at the Connecticut Employment Law Blog shares his insight as well.

Mark Toth at the Manpower Employment Blawg reports on the illegality of a policy that prohibits employees from working overtime while on light duty.

The Word on Employment Law with John Phillips provides some additional thoughts maternity and layoffs.

Eric Welter at the Laconic Law Blog reports on a poll finding that the FMLA is HR’s biggest headache.

Where Great Workplaces Start looks into the future and makes some predictions about the future of HR.

Christopher McKinney at the HR Lawyer’s Blog and Diane Pfadenhauer at Strategic HR Lawyer discuss careless twittering.

Finally, two blogs give their takes on The Office and the Michael Scott Paper Company: Rob Radcliff at Smooth Transitions and Michael Elkton at Trading Secrets.

 

 

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Think before having employees sign that arbitration agreement

Yesterday, the Supreme Court issued its opinion in 14 Penn Plaza v. Pyett, which enforced a provision in a collective-bargaining agreement that required union members to arbitrate statutory discrimination claims. My fellow bloggers have already provided some thoughtful analysis of this opinion – Michael Moore at the Pennsylvania Labor & Employment Blog, Michael Fox at Jottings By An Employer’s Lawyer, and Richard Bales at the Workplace Prof Blog.

The bigger question for employers to think about, though, is whether arbitration of employment claims makes business sense. Companies and their lawyers often use mandatory arbitration of employment claims for two reasons: (1) as a cost-effective alternative to court; and (2) as an insurance policy against runaway jury verdicts.

In my experience, however, arbitration can prove just as costly as court. More and more arbitrators are allowing plaintiffs to engage in discovery that is nearly as expansive (and expensive) as what is permitted by trial courts. Additionally, employers have to add into the equation the cost to file the claim, which the employer usually shares. With the American Arbitration Association, these fees can run anywhere from $950 to a cap of $65,000. These fees do not include the arbitrators’ time, which often exceeds $500 per hour, and includes all pre-hearing conferences, discovery and motion practice, the actual hearing time, and the drafting of the opinion. It is not hard to see how in many cases the defense costs associated with arbitration outweigh defense costs in a traditional court proceeding.

Given these high costs, there is a much better alternative to hedge against a runaway jury verdict – contractual jury trial waivers. A properly drafted jury trial waiver accomplishes the following goals:

1. No appeal rights are lost. Judicial review of arbitration awards is very narrow. An appellate court, however, will have a much wider scope of review of a bench trial.

2. A bench trial eliminates the risk of a runaway jury awarding obscenely high damages.

Before asking your employees to sign that arbitration agreement, consider whether there are other viable alternatives to reach the same goal, such as a jury trial waiver.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Poor communication of layoffs raises significant risks

According to CNN, French workers are holding management hostage over their refusal to negotiate severance:

Hundreds of French workers, angry about proposed layoffs at a Caterpillar factory, were holding executives of the company hostage Tuesday, a spokesman for the workers said….

The workers were angry that Caterpillar had proposed cutting more than 700 jobs and would not negotiate, said Nicolas Benoit, a spokesman for the workers’ union….

Benoit said all the workers wanted to do was negotiate with Caterpillar and they were upset that the company did not show up to two earlier scheduled negotiating sessions.

In the face of a layoff, your workers likely will not take the drastic step of physically taking people hostage. They are much more likely to take your business hostage in another way – through costly and time-consuming litigation.

The only insurance policy against a laid-off employee filing suit is a well-drafted severance agreement. The key to getting an employee’s signature on that agreement is treating the employee with dignity. Don’t let an employee find out that he or she is going to be included in a layoff by email, text message, or workplace gossip. As difficult as it will be, have a face-to-face conversation with each laid-off employee:

1. Script out what you plan to say ahead of time. The message should be clear yet compassionate.

2. Have an HR representative or other witness present in the room, just in case any dispute arises down the road as to what was said.

3. Keep the lines of communication open, both for the laid-off and those left behind. Both groups will likely have questions. Being available to answer them is crucial.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Do you know? Charging for pre-employment medical exam

The Americans with Disabilities Act sets limits on when and how employers can ask applicants or employees medical questions. At the pre-employment stage, an employer is allowed to ask any medical questions and conduct medical examinations, as long as two conditions are met: 1) it does so for all entering employees in the same job category; and 2) the applicant has been provided a conditional job offer and has not yet started working.

A question sometimes arises to whether an employer must pay for a pre-employment medical exam. The ADA and Ohio’s parallel law are oddly silent on this issue, which leads me to conclude that an Ohio employer can require an applicant to bear the cost of the medical exam.

The bigger question, though, is whether you want to charge job applicants for medical exams in the first place, of if you want to eat those costs as part of recruitment and hiring. Because the overwhelming majority of employers choose the latter, passing the costs onto applicants could pose real problems in recruiting quality employees.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

How to layoff the protected

Sunday’s New York Times ran an articles called When the Stork Carries a Pink Slip. It makes the point that there is nothing illegal about including pregnant women or women on maternity leave in a layoff. The same holds true for minorities, those over 40, the disabled, those out on FMLA leave, or anyone who happens to find themselves in any of the other groups protected by state or federal discrimination laws. What is illegal, however, is to include a pregnant women in a layoff because she’s pregnant.

Layoffs are supposed to be blind at to issues of race, sex, age, etc. But, if you are making these decisions in the dark, you are making a big mistake that could prove very costly. Before a layoff is implemented, it is crucial to review the demographics of who is staying and who is leaving:

1. You want to make sure that neutral selection criteria do not have a disparate impact on a particular protected group.

2. You want to make sure that it does not look like the layoff targeted a particular protected group.

3. You want to identify those risky inclusions (such as the new mom on maternity leave or the employee with a history of FMLA-leaves) who may need some additional incentive to sign off on a severance agreement and release.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

WIRTW #72

I’ve never been a huge fan of Arlen Specter, Pennsylvania’s senior Senator. When I was a junior in high school, I participated Presidential Classroom, a week-long educational program in D.C. all about the federal government. One of the perks of the program was special meet-and-greets with our Congressman and Senators. Growing up in Philly, I was very excited to meet Sen. Specter, especially since his dad and my granddad somehow knew each other from their old neighborhood. When he blew off our scheduled appointment (the only one of three to do so), he made my list.

This week, however, the Senator took a huge step towards redemption by publicly stating that he will not support the Employee Free Choice Act. Because he’s previously supported the EFCA, and because he’s a Republican, his vote is critical for supporters to reach the 60 votes needed to end a filibuster and bring the bill to a vote. The following blogs have extensive coverage of Sen. Specter’s big announcement: Michael Moore at the Pennsylvania Labor & Employment Blog, the EFCA Report, Michael Fox at Jottings By An Employer’s Lawyer, EFCA Updates, and Dan Schwartz at the Connecticut Employment Law Blog, who has the video and transcript of Specter’s speech.

In other EFCA news this week, a group comprised of the CEO’s of Starbucks, Whole Foods, and Costco have come up with their own compromise on the controversial labor bill. For the details, jump over to the EFCA Report and The Word on Employment Law with John Phillips.

In some local news, Above the Law reports on a gender discrimination lawsuit filed in Summit County. According to the complaint, the alleged harasser is of foreign dissent, and HR cited “cultural differences” to explain why he referred to the plaintiffs as a “Bunch of B*tches,” “Hormonal Messes,” and a “F*cking Lesbian.”

Meanwhile, Molly DiBianca at the Delaware Employment Law Blog shares her thoughts on cursing in the workplace.

Kara Maciel at the EBG Trade Secrets & Noncompete Blog reports on what happens when one gentlemen’s club tries to poach dancers from another.

OnPoint has the details of a Florida case in which a Virginia jury rejected the sex discrimination claim of a female dock worker caught relieving herself outdoors.

Anthony Zaller at the California Employment Law Report writes on a topic I covered earlier this week, the DOL’s intent to step up wage and hour enforcement.

Ross Runkel’s LawMemo details a case in which an employer snooped on an employee’s private AOL email account that the employee accessed from a work computer. Workplace Privacy Counsel suggests that employers draft policies covering employees’ use of personal Internet-based email accounts using company computers.

Point of Law, on the hidden costs associated with layoffs – litigation costs.

Jason Morris at Employeescreen IQ Blog, on whether former bankers wear a scarlet letter in their current job searches.

Rob Radcliff’s Smooth Transitions has 9 pointers on hiring employees covered by non-compete agreements.

Mark Toth at the Manpower Employment Blawg gives his thoughts on a report about the high incidents of employee data theft.

Corporate Voices for Working Families suggests that family-friendly work benefits might take a big hit during the recession.

David Yamada’s Minding the Workplace reports that Massachusetts has introduced a workplace bullying bill in its legislature. For my thoughts on workplace bullying laws, see Sticks and stones may break my bones...

Carl Bosland at The FMLA Blog reminds us that every lawsuit boils down to two key issues, liability and damages, and winning on the latter is just as important for employers as the former.

Ted Moss at COSE Mindspring, on shield laws for job references. For my thoughts on this misunderstood issue, take a look at Do you know? Ohio law protects employers that give negative job references.

Finally, some gallows humor to end the week – Frank Roche at KnowHR links to an online game called “Layoff.”

Applying the federal COBRA subsidy to Ohio’s Mini-COBRA law

As I’ve previously reported, the federal stimulus bill, enacted last month, requires employers to provide a 65% subsidy of COBRA premiums for employees involuntarily separated. As I’ve also previously reported, Ohio has its own “mini-COBRA” for small employers with between 10 and 19 employees.

Do not assume, however, that merely because COBRA does not apply to small businesses that the subsidy also does not apply to small businesses. The federal stimulus bill specifically provides for COBRA premium assistance to former employees covered under state continuation coverage law such as Ohio’s mini-COBRA.

Just like its federal counterpart, small employers covered by Ohio’s mini-COBRA are not obligated to pay any portion of the premium. The former employee will pay 35% of the premium and employer will claim the payroll tax credit from the IRS for the 65% of the premium not paid by the former employee.

There are, however, three key differences between the subsidy under COBRA versus Ohio’s mini-COBRA.

1. Although the federal subsidy lasts for 9 months, Ohio continuation coverage, and therefore the subsidy obligation, only extends for 6 months.

2. To be eligible for the subsidy under COBRA, an employee need only have been involuntarily terminated for a reason other than gross misconduct. To be eligible for the subsidy under Ohio’s mini-COBRA, the employee must have been involuntarily terminated and: (i) continuously insured for the 3 months prior to the termination; (ii) eligible for unemployment; and (iii) not covered or eligible for Medicare or any other group health coverage.

3. Under COBRA, the federal subsidy is retroactive to September 1, 2008. In comparison, Ohio’s mini-COBRA only covers terminations that occur on or after February 17, 2009. Both subsidies expire at the end of this year.

The Ohio Department of Insurance has published a model COBRA notice for small employers to use.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Department of Labor to step up enforcement; employers should step up self-audits

You may have noticed that I write a lot about wage and hour issues. I do so because it’s an issue that often gets even well-intentioned businesses into trouble. As if employers don’t already have it bad enough with the explosion of wage and hour class action litigation, this week brings us news that new Labor Secretary Hilda Solis promises to “reinvigorate the work” of the DOL’s Wage & Hour Division. Her quote comes in response to an investigation by the General Accounting Office, which reports that the Wage & Hour Division has mishandled hundreds of cases.

In yesterday’s New York Times, Steven Greenhouse reports:

The report pointed to a cavalier attitude by many Wage and Hour Division investigators, saying they often dropped cases when employers did not return calls and sometimes told complaining workers that they should file lawsuits, an often expensive and arduous process, especially for low-wage workers.

In light of the DOL’s planned stepped-up enforcement, employers must be extra vigilant in uncovering wage and hour violation in their own workplaces. A wage and hour audit feels like an unpleasant medical exam. The investigator is not necessarily limited to the alleged violation, and will turn your workplace upside-down, pouring through years of records and privately interviewing your employees. And, once you are on their radar, it is hard to get off. In other words, they’ll be back to make sure you are staying on the path of all that is right and just.

For employers, the best advice I can give is to get out ahead of this issue. Take a hard look at all of your current wage and hour issues: employee classifications, meal and rest breaks, off-the-clock issues, and child any workers. Make sure you are 100% compliant with all state and federal wage and hour laws. If you are not sure, bring in an attorney to check for you. If you are ever investigated by the DOL or sued in a wage and hour case, it will be the best money your business has ever spent.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Do you know? Pay for employee training time

Do you know? Lost of opportunities exist for employees to train, take educational classes, or otherwise better themselves – inside classes, outside classes, seminars, lectures, and continuing education requirements, to name a few. Whether attendance at these activities counts as “working time” under the Fair Labor Standards Act depends on four factors:

1. Is attendance outside of the employee’s regular working hours?
2. Is attendance truly voluntary?
3. Is the course, lecture, or meeting indirectly related or unrelated to the employee’s job?
4. Does the employee not perform any productive work during such
   attendance?

You must be able to answer “yes” to all four of these questions to consider an employee’s attendance non-working time.

For non-exempt employees, this determination is important for two reasons. First, working time must be paid at the employee’s regular rate. Secondly, it counts towards the number of hours worked in a work week for determining overtime eligibility.

This issue is even more important in today’s tight economy. Failing to consider these factors before requiring or suggesting training or education for employees could result in the added expense of unbudgeted wages and overtime.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Make every day “Associate Appreciation Day” to avoid unions

Wal-Mart has labeled today “Associate Celebration Day,” in honor of its announcement of $2 billion in financial bonuses and other awards to its hourly employees. USA Today has the details.

It should not come as a surprise that Wal-Mart, which fights union organizing as hard or harder than any other American employer, is against the Employee Free Choice Act. My cynical side cannot help but think that Associate Celebration Day is a subtle reminder to potential union members that Wal-Mart is a good place to work and takes care of its own.

Keeping a place of employment union-free is not a one-shot deal. I do not think that employees’ choice to unionize can be bought and sold with one-off bonuses and merchandise discounts. To stay union-free, employers should make every day Associate Celebration Day. To be prepared for the EFCA if it becomes law, companies should actively strive to be workplaces of choice for employees and not workplaces of opportunity for labor unions.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

WIRTW #71

The big news of the week is the continued fallout from AIG’s bonus payments. Since Connecticut law governs the legality of whether AIG was required to make the payments under its retention plan, there is no better place to look for information on this issue than our good friend Dan Schwartz at the Connecticut Employment Law Blog.

In other economic news, Jay Shepherd at Gruntled Employees shares his thoughts on the CEO of a Boston hospital, who looked to his employees for ideas on how to save money and jobs.

The Business of Management gives some advice on how to properly handle layoffs.

Maribeth Minella at the Delaware Employment Law Blog has the top 10 layoff tips for employers. Tip #7 is the most important: “Seek the advice of legal counsel early.” We can then help guide you through the other 9.

Northeast Ohio’s Employers Resource Council’s Where Great Workplaces Start presents a timely list of some key HR terms.

Bob Sutton gives his ideas on the importance of quality in a business plan.

David Yamada at Minding the Workplace compares ethical employment practices to sweeping problems under the rug.

The Word on Employment Law with John Phillips opines that an employer is entirely within its rights to fire an employee who posts something on the Internet that negatively reflects on the job. Case in point: Employee disloyalty and Facebook.

We end this week’s review with a trio of posts on the Employee Free Choice Act:

• Michael Fox at Jottings By An Employer’s Lawyer points out the biggest mistake each side is making in the debate over the EFCA.

• LaborPains reports on some recent polling numbers that suggest that the EFCA might be gaining traction.

• Kris Dunn, The HR Capitalist, tries to untangle the spin coming from the labor unions about this bill.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Odd employees have a place – just maybe not in your workplace

I spent my summer between high school and college unloading trucks in a fabric warehouse. During my first week of work, one of my co-workers asked me if “Harlan” had gotten to me yet. As it turned out, Harlan was the warehouse joke. He held some strange ideas, and would take a stab at indoctrinating each new employee. Sure enough, later that same day Harlan cornered me and let me in on his view of the world – that a small cluster of Freemasons ruled the world from a secret office on the 36th floor of Rockefeller Center, that Lee Iacocca saved Chrysler by making a pact with Satan, and that the Israeli government would start the apocalypse by 2004.

I hadn’t thought about Harlan in years, but was reminded of him a few days ago when I came across Lizalek v. Invivio Corp. (7th Cir. 3/16/09):

Gary Lizalek’s religious beliefs make for a complicated identity. As a matter of faith, he understands himself to be three separate beings: (1) GARY C LIZALEK, “a trust that was created by the Social Security Administration … to generate assets for its beneficiary, the United States Government”; (2) Gary C. Lizalek, Trustee; and (3) Gary C. Lizalek, Steward, who “lends … consciousness and physical abilities to said Trust.” His employer asked that he stick with a single identity for professional purposes, but Lizalek refused. Shortly thereafter he was terminated. The district court held that this decision broke no law, and we affirm.

I could profoundly write about how a diligent background check could have revealed this employee’s oddities before he was hired, or about Title VII’s obligations to reasonably accommodate sincerely held religious beliefs unless it poses an undue hardship.

Instead, I’ll simply leave you with this thought. Most workplaces have someone like this employee. It’s up to you to figure out if this type of personality is the right fit for your business. Invivio hired him to deal with customers, and felt uncomfortable with him having that role in light of his bizarre behavior. Harlan was cutting fabric in a warehouse, and management did not mind his weird worldview, even if it sometimes distracted his co-workers. Every employee won’t be the right fit for every job; it’s management’s prerogative to weed out those employees that aren’t the right match for the particular business or position.

[Hat tip: Daily Developments in EEO Law]

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

New COBRA notices now available

Sometimes information just moves quickly to keep up with. The Department of Labor has just published the new COBRA notices, making my post of just a couple of house ago now partly obsolete. The notices are available here, from the DOL’s website.

Thanks to Michael Moore from the Pennsylvania Labor & Employment Blog, who saw my post from this earlier this morning and gave me the heads up.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Department of Labor posts wealth of information on new COBRA subsidy

As I’ve previously reported, the American Recovery and Reinvestment Bill of 2009, commonly known as President Obama’s economic stimulus bill, provides for a nine-month 65% subsidy of the COBRA premiums for involuntarily terminated employees. The Department of Labor has updated its website with lots of information for employer and employees on the subsidy: FAQS, flyers, posters, and other COBRA-related resources. Missing, however, is the one resource that would be the most useful to employers: a model form to provide to terminated employees. The DOL does say that it “is actively working to issue additional guidance regarding the COBRA premium reductions.” Perhaps it will issue the model COBRA notice along with this additional guidance. When the DOL gets around to publishing the model notice, I will be sure to post a link.

Maternity leave issues continue to confound employers

Maternity leave is one of the most misunderstood employment law issues for businesses. Two laws generally govern workplace maternity leave. First, the Family and Medical Leave Act, which mandates 12 weeks of maternity leave for employees who worked at least 1,250 hours in the prior 12 months for businesses with 50 or more employees. Secondly, the employment discrimination laws require that pregnant women be treated no differently than people with similarly debilitating conditions.
Ohio employers often misbelieve that if they are too small for FMLA coverage or if the FMLA does not cover a specific employee, they can deny maternity leave under a neutral leave of absence policy. As Nursing Care Mgmt. of America v. Ohio Civil Rights Commission (Licking Cty. 3/11/09) illustrates, under Ohio law employers that do not give all pregnant employees a reasonable amount of maternity leave, regardless of the employer’s leave policy, act at their own peril.
Pataskala Oaks Care Center had a neutral leave of absence policy that provided 12 weeks of leave for those employees with at least one year of service. After working at Pataskala Oaks for eight months, Tiffany McFee provided a note from her doctor stating that she was medically unable to work because of pregnancy-related swelling, and that she could return to work six weeks after delivery. Pataskala Oaks terminated her employment three days after delivery because she did not qualify for leave under its policy. The appellate court ruled that Pataskala Oaks committed unlawful sex discrimination by not granting McFee a reasonable maternity leave.
Ohio has specific regulations that cover maternity and childbirth leaves of absence – Ohio Admin. Code 4112-5-05(G). The key part of that section provides:

(2) Where termination of employment of an employee who is temporarily disabled due to pregnancy or a related medical condition is caused by an employment policy under which insufficient or no maternity leave is available, such termination shall constitute unlawful sex discrimination.

Pataskala Oaks argued that it had a leave policy, but McFee did not qualify under it because of her short tenure. The Court did not buy Pataskala Oak’s argument:

Termination of an employee disabled due to pregnancy is prohibited if the employer provides no maternity leave or insufficient maternity under its employment policy. In this case, it is undisputed that Pataskala Oaks had no maternity leave available to McFee at the time of her pregnancy disability….
Pataskala Oaks does not deny that McFee requested maternity leave, and that it terminated McFee without providing her maternity leave for a reasonable period of time. Pursuant to 4112-05-05(G)(2) such termination “shall constitute unlawful sex discrimination”.

This case is important for all Ohio businesses. Ohio law requires that all pregnant employee be provided a “reasonable” maternity leave, regardless of the the employer’s size, the employee’s tenure, or the language of a leave policy. If an employee asks for maternity on her first day of employment, it must be given and she must be restored at the end of the leave. The open issue is what “reasonable” means. Is it a fixed amount of time? Set by a doctor’s certification? Does it include bonding with a newborn or is it limited to medical necessity? These open questions will be answered on a case-by-case basis. What we know for sure is that zero maternity leave is a quick road to liability.

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

Do you know? Mandatory unpaid time off may affect salaried employees’ exemptions

Do you know? Many companies are turning to mandatory work furloughs or reduced work schedules as creative ways to save wages without having to lay off employees. These programs are designed to control the number of hours worked by employees and the resulting amount of wages paid. When applied to salaried exempt employees, however, in increments of other than a full week, furloughs and reduced work schedules can jeopardize exemptions under the Fair Labor Standards Act.

The FLSA provides an exemption from the minimum wage and overtime requirements for any employee employed in a bona fide executive, administrative or professional capacity. To qualify as exempt, most executive, administrative, and professional employees must, among other factors, be paid on a salary basis. Generally, an exempt employee must receive his or her full salary for any week in which the employee performs any work, without regard to the number of days or hours worked. In no event can an employer take any deductions from an exempt employee’s salary for full or partial day absences occasioned by lack of work. Thus, if an employer schedules an exempt employee for less than 40 hours in a week, the employee must still be paid a full week’s salary, or risk placing the employee’s exemption in jeopardy.

Reduced work schedules and furloughs, while very much in vogue, raise a host of complex legal issues. This post only discusses one such issue. If your business is considering implementing such an idea, contact your employment counsel to ensure that your plan complies with all wage and hour, discrimination, and other labor and employment laws.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Enjoying the small things in these trying times

When I attended Binghamton University, nee SUNY-Binghamton, in the early 90s, it’s sports programs were Division III. It was small-time, no television, 500 people in the West Gym, college basketball, to which I held season tickets for my four years on campus. Imagine my joy, then, to sit in my family room Saturday morning and watch Binghamton on ESPN2 play for its first conference title and trip to March Madness since the jump to Division I eight year ago. When the final buzzer sounded, and the announcers congratulated Binghamton on its historic win, and thousands of crazed fans flooded the floor of the school glistening new Events Center, I am not embarrassed to say that I shed a tear for my alma matter.

We live in depressing times. You can’t open a newspaper or surf the web without reading news about the sinking stock market, failing banks, high foreclosure rates, and record job losses. As an employment lawyer, those layoffs, frankly, are good for business. Yet, every time my phone rings and I field a call about handling the mechanics of another layoff at some other company, my heart sinks a little. I’m grateful for the work, and somber that what I do for a living can have such a profound effect on the lives of people that I likely will never meet.

Binghamton’s foray into big time college sports got me to thinking, in these trying times, we really do need to sit back and enjoy the small things. Whatever your small thing might be – a picture your daughter colored for you, a quiet conversation with someone you love, or picking your beloved alma mater to wear Cinderella’s slipper in the office pool – embrace it, even for a moment. At the end of the day, it’s the small things in our lives that are often the biggest of all, and help us cope with the big things that we too often allow to define who we are.

Oh, and go Binghamton, beat Duke.

[Update: for more on Binghamton basketball, I cannot more highly recommend Tzvi Twersky article in Slam Magazine: Great Blue Times at Binghamton U.]

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

WIRTW #70: The Employee Free Choice Act Edition

On Tuesday, Congressional Democrats introduced the Employee Free Choice Act in both Houses of Congress. This legislation will present the most contentious Congressional debates Washington has seen in at least a generation. If passed, it will radically alter union/management relations by permitting the certification of labor unions without a secret ballot election and by mandating binding arbitration for all first collective bargaining agreements. Because I can’t possible provide all of the coverage due this important legislation, this week’s WIRTW is dedicated to the EFCA:

• If you want to read the bill for yourself, the EFCA Report has links to its full text.

• If you can’t stand the thought of reading legislation, several blogs have useful summaries of the EFCA’s key provisions: The Labor & Employment Blog; the Washington Labor & Employment Wire; Mark Toth’s Manpower Employment Blawg; and the Employeescreen IQ Blog.

• The U.S. Chamber of Commerce’s ChamberPost details its efforts to fight against the EFCA’s passage, busts some common union myths about the ECFA, and provides an economic analysis against the EFCA. The most striking number is an estimate that the passage of the EFCA would cost our country 600,000 jobs the following year.

• The Word on Employment Law with John Phillips has another take on the EFCA and the economy.

• Frank Roche’s KnowHR Blog asks if your employees are ready to take the heat from unions if the EFCA passes.

• LaborPains.org posts a video of MSNBC’s liberal standard-bearer, Rachel Maddow, and suggests that she read the text of the bill before she editorializes on it.

• World of Work links to another video, this one by the SIEU, which comments on management’s use of “scare tactics” against the EFCA.

• HR Observations talks about the dangers of the EFCA’s lesser-known arbitration provisions.

• There are a couple rays of sunshine: ECFA Updates reports that Senate Democratic support for the bill might be wavering, and the EFCA Report suggests that some compromises might already be in the works to get this bill passed.

• Finally, Daniel Nichanian at Campaign Diaries has a detailed breakdown of where the Senate stands today on both support for the bill and support of a cloture to end the guaranteed Republican filibuster on the EFCA. With 44 Senators (which includes Al Fraken, who has not yet been formally seated) either co-sponsoring or openly supporting the bill, Daniel focuses on the 16 swing votes, Senators who have supported the bill in the past but have not yet taken a stand on the 2009 version. The Senate Democrats will have enough votes to pass the EFCA; the question is whether they will have enough votes for the cloture. Stay tuned - this promises to be very exciting.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Economy Down – Lawsuits Up

Has your company laid off or fired anyone recently? Have you recently been sued for discrimination? According to numbers to be published by the EEOC, the odds are that if you haven’t been sued, you will be.

The EEOC has released its caseload numbers for fiscal year 2008, and the upswing in the number of claims from the prior year is dramatic. From the EEOC, courtesy of the Wall Street Journal:

Type of Discrimination	2007 EEOC Charges	2008 EEOC Charges	Change from 2007 to 2008
Age	19,103	24,582	28.7%
Retaliation	26,663	32,690	22.6%
Sex	24,826	28,372	14.3%
Religion	2,880	3,273	13.6%
National Origin	9,396	10,601	12.8%
Race	30,510	33,937	11.2%
Disability	17,734	19,453	9.7%
Total	82,792	95,402	15.2%

 

In this economy, nearly every termination and lay-off should be considered high-risk. With little to lose, more and more employees are taking fliers on discrimination claims in hopes of scoring a settlement to help cushion the job loss blow.

Terminating or laying off an employee without getting employment counsel involved before the termination is asking for a lawsuit. Companies should be working with their attorneys to:

1. Vet group layoffs and individual terminations to confirm that the decisions are lawful and non-discriminatory.

2. Ensure that protected groups are not otherwise disproportionally represented in group layoffs.

3. Hedge their liability risks be offering severance packages in exchange for releases signed by departing employees.

We attorneys cannot offer a magic pill to immunize against lawsuits. What we can offer is proactive counseling so that you are best positioned to defend yourself when the lawsuit comes.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Do you know? Guns at work

Do you know? While the 2nd Amendment famously guarantees the  right to bear arms, Ohio law protects the right of employers to prohibit weapons of any kind from entering the workplace.

Ohio Revised Code section 2923.126(C)(1) provides:

Nothing in this section shall negate or restrict a rule, policy, or practice of a private employer that is not a private college, university, or other institution of higher education concerning or prohibiting the presence of firearms on the private employer’s premises or property, including motor vehicles owned by the private employer.

In Plona v. UPS (3/6/09), the Sixth Circuit recently confirmed the right of an employer to terminate an employee for violating a no-weapons policy. In that case, UPS fired Plona for violating its policy against possessing firearms on its premises after he was found with a pistol in his car. Plona claimed that the termination violated Ohio’s public policy in favor of the right to bear arms. The Court correctly disagreed:

Although the Ohio Constitution provides a general right to bear arms, the state certainly does not have a “clear public policy” of allowing employees to possess firearms on the premises of their private employers. To the contrary, the Ohio legislature has specifically provided that employers may limit their employees’ rights to bear arms…. UPS was thus plainly within its rights … to prohibit its employees from possessing firearms in the parking area.

If your business does not have a policy banning weapons anywhere on its premises, consider contacting your employment counsel to have a policy drafted.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.