Swine flu: panic versus preparedness

There is nothing our media likes more than a good panic. So, it is somewhat with a grain of salt that I take a lot of this week’s coverage about the swine flu. Is it real disease? Yes. Are people getting sick? Yes. Are people dying? Yes. However, we must also place these broad-based realities into context. The United States has over 300,000,000 people. As of this morning, there have been a mere 65 confirmed cases. Each year, the regular flu kills 36,000 Americans. So far, the swine flu has resulted in only 1 fatality.

Instead of panicking about the swine flu, the best advice is to simply prepare your workforce to prevent its spread and assist employees who become ill. The Center for Disease Control recommends the following six-step protocol:

1. Plan for the impact of a pandemic on your business:

• Identify a pandemic coordinator and/or team with defined roles and responsibilities for preparedness and response planning. The planning process should include input from labor representatives.

• Identify essential employees and other critical inputs (e.g. raw materials, suppliers, sub-contractor services/ products, and logistics) required to maintain business operations by location and function during a pandemic.

• Train and prepare ancillary workforce (e.g. contractors, employees in other job titles/descriptions, retirees).

• Develop and plan for scenarios likely to result in an increase or decrease in demand for your products and/or services during a pandemic (e.g. effect of restriction on mass gatherings, need for hygiene supplies).

• Determine potential impact of a pandemic on company business financials using multiple possible scenarios that affect different product lines and/or production sites.

• Determine potential impact of a pandemic on business-related domestic and international travel (e.g. quarantines, border closures).

• Find up-to-date, reliable pandemic information from community public health, emergency management, and other sources and make sustainable links.

• Establish an emergency communications plan and revise periodically. This plan includes identification of key contacts (with back-ups), chain of communications (including suppliers and customers), and processes for tracking and communicating business and employee status.

• Implement an exercise/drill to test your plan, and revise periodically.

2. Plan for the impact of a pandemic on your employees and customers:

• Forecast and allow for employee absences during a pandemic due to factors such as personal illness, family member illness, community containment measures and quarantines, school and/or business closures, and public transportation closures.

• Implement guidelines to modify the frequency and type of face-to-face contact (e.g. hand-shaking, seating in meetings, office layout, shared workstations) among employees and between employees and customers (refer to CDC recommendations).

• Encourage and track annual influenza vaccination for employees.

• Evaluate employee access to and availability of healthcare services during a pandemic, and improve services as needed.

• Evaluate employee access to and availability of mental health and social services during a pandemic, including corporate, community, and faith-based resources, and improve services as needed.

• Identify employees and key customers with special needs, and incorporate the requirements of such persons into your preparedness plan.

3. Establish policies to be implemented during a pandemic:

• Establish policies for employee compensation and sick-leave absences unique to a pandemic (e.g. non-punitive, liberal leave), including policies on when a previously ill person is no longer infectious and can return to work after illness.

• Establish policies for flexible worksite (e.g. telecommuting) and flexible work hours (e.g. staggered shifts).

• Establish policies for preventing influenza spread at the worksite (e.g. promoting respiratory hygiene/ cough etiquette, and prompt exclusion of people with influenza symptoms).

• Establish policies for employees who have been exposed to pandemic influenza, are suspected to be ill, or become ill at the worksite (e.g. infection control response, immediate mandatory sick leave).

• Establish policies for restricting travel to affected geographic areas (consider both domestic and international sites), evacuating employees working in or near an affected area when an outbreak begins, and guidance for employees returning from affected areas (refer to CDC travel recommendations).

• Set up authorities, triggers, and procedures for activating and terminating the company's response plan, altering business operations (e.g. shutting down operations in affected areas), and transferring business knowledge to key employees.

4. Allocate resources to protect your employees and customers during a pandemic:

• Provide sufficient and accessible infection control supplies (e.g.hand-hygiene products, tissues and receptacles for their disposal) in all business locations.

• Enhance communications and information technology infrastructures as needed to support employee telecommuting and remote customer access.

• Ensure availability of medical consultation and advice for emergency response.

5. Communicate to and educate your employees:

• Develop and disseminate programs and materials covering pandemic fundamentals (e.g. signs and symptoms of influenza, modes of transmission), personal and family protection and response strategies (e.g. hand hygiene, coughing/sneezing etiquette, contingency plans).

• Anticipate employee fear and anxiety, rumors and misinformation and plan communications accordingly.

• Ensure that communications are culturally and linguistically appropriate.

• Disseminate information to employees about your pandemic preparedness and response plan.

• Provide information for the at-home care of ill employees and family members.

• Develop platforms (e.g. hotlines, dedicated websites) for communicating pandemic status and actions to employees, vendors, suppliers, and customers inside and outside the worksite in a consistent and timely way, including redundancies in the emergency contact system.

• Identify community sources for timely and accurate pandemic information (domestic and international) and resources for obtaining counter-measures (e.g. vaccines and antivirals).

6. Coordinate with external organizations and help your community:

• Collaborate with insurers, health plans, and major local healthcare facilities to share your pandemic plans and understand their capabilities and plans.

• Collaborate with federal, state, and local public health agencies and/or emergency responders to participate in their planning processes, share your pandemic plans, and understand their capabilities and plans.

• Communicate with local and/or state public health agencies and/or emergency responders about the assets and/or services your business could contribute to the community.

• Share best practices with other businesses in your communities, chambers of commerce, and associations to improve community response efforts.

A business’s size and the nature of its operations dictate the need for any or all of these steps. For more information on preparing your business for cases of the swine flu, I recommend the CDC’s micro-site on workplace planning for pandemic flu and OSHA’s Guidance on Preparing Workplaces for an Influenza Pandemic.

---

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 work uniforms

More and more businesses are looking to cut costs anywhere they can. Many require their employees to wear a certain uniform. Can they pass on the costs of the uniforms to their employees?

Generally speaking, there is no law that forbids an employer from mandating that its employees pay for required work uniforms. There are two important exceptions to this general rule: minimum wage and OSHA.

1. Minimum Wage.

The added expense from the uniforms cannot reduce the employee’s effective hourly rate below the minimum wage. Currently, Ohio’s minimum wage is $7.30 per hour. For example, if an employee is paid $8 per hour, and works a 40-hour week, the employer could charge up to $28 that week for uniforms. Any charge greater than $28 would illegally reduce the employee’s hourly rate below $7.30 for the week.

2. OSHA and Personal Protective Equipment.

Employers must also be careful if the uniforms include items that are required for employees’ personal safety. Recently enacted OSHA rules prohibit employers from requiring employees to pay for required personal protective equipment. Employers must pay for most required safety equipment. The only exceptions are non-specialty safety-toe protective footwear (including steel-toe shoes or steel-toe boots), non-specialty prescription safety eye wear, logging boots, and everyday clothing.

---

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.

What’s your five? A question for my readers and fellow bloggers.

As a member of the Ohio Chamber of Commerce’s Employment Law Committee, I was asked to respond to the following questions:

What would you say the top 5 labor & employment issues are that HR professionals and employers (large and small) would like to know more about or are struggling with in this economy?

What can be changed/done to make such labor & employment issues less onerous for employers?

Here’s my list:

1. Job losses, job creation, and managing workforces to ensure, as best as possible, as much work as possible for as many people.

2. The risk of increased unionization in the face proposed federal legislation and a down economy.

3. Layoffs and the litigation risks that flow from them.

4. The threat and proliferation of wage and hour litigation.

5. Rising health care costs.

Figuring out what can be done to fix these problems is a much harder question to answer. Any program designed to aid employers has to start and end with training and education. Being proactive is the best measure to guard against these potential problems.

To my readers and fellow bloggers, if you had to list the top 5 labor and employment issues facing employers in 2009, what would they be? Perhaps more importantly, what can be done to limit or temper these issues for businesses? I’m very interested in what everyone has to say. Please comment. If you post on your own blog, please email a link. I’d like to update this post next week with everyone’s thoughts.

---

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 #76

Courtesy of Anthony Zaller at the California Employment Law Report, the link of the week is How to Nail and Interview. The author of that site posted a fake job on craigslist for a marketing position and recorded the interviews. Hilarity ensued. My personal favorites are #9, in which the applicant is caught off-guard when pressed on her inappropriate Facebook page, and #13, where the applicant hoped her willingness to “do anything” would score her the job. It is definitely clicking over and watching some of the videos.

In other news, from Martha Neil at the ABA Journal is a story about two Dominos Pizza employees who thought it was a good idea to perform inappropriate acts on customers’ food and post the videos on YouTube. Not only were they fired, but they are also facing criminal charges for food tampering.

Nick Fishman at the EmployeescreenIQ Blog has more on Ohio’s attempt to ban the use of credit reports in employment decisions.

George’s Employment Blawg reports on a $17.5 million verdict in a trade secret theft case.

The Laconic Law Blog tells how an employee’s use of profanity directed at his employer cost him any protection against retaliation.

Tim Eavenson at Current Employment uses news of 2 recent EEOC settlements to instruct on preventing HR catastrophes.

Michael Haberman at HR Observations makes an observation workplace privacy and social networking.

Finally, this week brought us oral argument in Ricci v. DeStefano, which will decide whether the city of New Haven violated Title VII when it declined to certify the results of an exam that would have make disproportionately more white applicants eligible for promotion than minority applicants. In layman’s terms, is it discriminatory to void a test that disproportionately favors white applicants over minority applicants. For very detailed analysis of these issues and the Supreme Court oral argument, read Dan Schwartz at the Connecticut Employment Law Blog and Marcia McCormick at the Workplace Prof Blog.

---

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.

Employers should be planning for the Employee Free Choice Act

Even the most ardent supporters of the Employee Free Choice Act agree that passage in its current form is unlikely. The Cleveland Plain Dealer quotes Ohio Sen. Sherrod Brown:

Although Brown backs the legislation in its current form, he says it won’t get enough votes for passage in the Senate now that former backers including Pennsylvania Republican Sen. Arlen Specter have withdrawn their support.

He said he expects a compromise will be reached to continue the secret-ballot elections, but require them to be conducted swiftly and handled in a way that doesn’t inordinately favor businesses.

Despite these delays and possible changes, employers should be vigilant about preparing for its passage in one form or another. As Texas attorney Michael Maslanka points out on Law.com, “Some version of EFCA will be the law no later than next year at this time. Advice: Avoid ostrich-like attitudes of self-delusion.”

What can you do, as employers, do to keep your heads out of the sand? Plan on attending KJK’s next Breakfast Briefing, How to Stay Union Free in a Union-Friendly World. The event will be held May 13 from 8 a.m. to 10 a.m., and it is totally free. If you would like to attend or for more information, please contact Andrea Hill, (216) 736-7234 or ach@kjk.com.

---

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

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

EEOC releases “Employer Best Practices for Workers with Caregiving Responsibilities”

It’s been almost two years since the EEOC released its Enforcement Guidance on Unlawful Disparate Treatment of Workers with Caregiving Responsibilities. Since that time, buzz words such “work-life balance,” “family-friendly,” and “family responsibilities” have been put to use in companies all across America, and juries have continued to punish businesses that punish employees who prioritize their families over their work.

To help employers navigate these dangerous waters, today the EEOC published its Employer Best Practices for Workers with Caregiving Responsibilities. While these “Best Practices” are couched in terms of discrimination against caregivers, the tips offered by the EEOC, while not groundbreaking, are universally applicable to any employment practice. Some of the more important tips are:

• Develop, disseminate, and enforce a strong EEO policy that provides examples of illegal conduct and identifies a contact person for questions or complaints.
  
• Ensure that managers at all levels are aware of, and comply with, the organization’s policies.
  
• Respond to complaints of discrimination efficiently and effectively.
  
• Protect against retaliation.
  
• Focus on qualifications, not characteristics.
  
• Develop specific, job-related qualification standards for each position that reflect the duties, functions, and competencies of the position.
  
• Identify and remove barriers to re-entry for individuals who have taken leaves of absence from the workforce.
  
• Ensure that employment decisions are well-documented and transparent (to the extent feasible).
  
• Monitor compensation practices and performance appraisal systems for patterns of potential discrimination.
  
• Reassign job duties that employees are unable to perform because of pregnancy or other caregiving responsibilities.
  
• Provide reasonable personal or sick leave.

Do you know? A company cannot represent itself in an Ohio court

In the April 9 New York Times, Jonathan Glater reported that more and more people are turning to self-representation during the current economic downturn. In Ohio, individuals may be able to do it themselves without lawyers, but businesses cannot.

If a business appears in court without an attorney, the representative is illegally engaging in the unauthorized practice of law. Under Ohio law, a corporation or other business only can maintain litigation or appear in court through an attorney. It may not do so through an officer of the corporation or some other appointed agent or representative. At least in Ohio, there is no such thing as a business appearing pro se (without a lawyer).

The only exception exists in small claims court, where a corporation can bring a claim based on a contract to which it is a party, as long as the representative does not “engage in cross-examination, argument, or other acts of advocacy.” For example, without a lawyer a company can file a claim in small claims court to recover an unpaid account. If the individual disputes the amount due, however, a non-lawyer cannot cross-examine the individual or argue to the magistrate.

Next time your business thinks about going it alone in court to save a few dollars, think about whether it worth the likely risk of a default judgment or dismissal of the case for not being represented by an attorney.

---

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

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

Ohio Senate seeks to ban use of credit in employment decisions

There is little doubt that the current economic crisis has caused havoc on a lot of good intentioned people’s credit scores. During the good old days , people over-extended their credit, bought houses they can no longer afford, and otherwise lived beyond their means. With the retraction of the credit market and the exponential rise in home foreclosures, many people’s credit histories and FICO scores have suffered.

Ohio Senate Bill 91, however, is a reactionary move to this crisis that simply goes too far. This bill proposes to prevent employers considering people’s credit histories when makes an employment decision:

It shall be an unlawful discriminatory practice for an employer to use a person’s credit rating or score or consumer credit history as a factor in making decisions regarding that person’s employment, including hiring, tenure, terms, conditions, or privileges of employment, or any matter directly or indirectly related to employment.

Jim Siegel, a reporter for The Columbus Dispatch, quotes Tony Fiore of the Ohio Chamber of Commerce:

Senate Bill 91 will face opposition from business groups that want flexibility in how they determine whether someone is right for a job.

“Do you want someone with a bad credit history managing the company’s money, or yours?” said Tony Fiore, a lobbyist for the Ohio Chamber of Commerce.

“The employer needs that ability because they want to make sure they’re putting the best people forward, not only to help the company, but help the people relying on the company.”

Aside from the concerns voiced by Mr. Fiore (which I wholeheartedly echo), there is also a bigger issue at play here. There already exists a federal law the gives employees significant protections in how employers use credit information. The Fair Credit Reporting Act [PDF] make it illegal for any employer to obtain or use one’s credit for making an employment decision without the individual’s written authorization. And, an employer cannot take an adverse action (such as firing, or refusing to hire) based on information contained in a credit report without first giving the individual a reasonable amount of time to dispute the accuracy of the information or otherwise offer an explanation. With these federal protections in place for employees and applicants, Ohio’s businesses do not need to be prohibited from using this important tool.

[Hat tip: employeescreenIQ Blog]

---

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 #75

The employment law story of the week is courtesy of Overlawyered and OnPoint. The Poplar Bluff, Missouri, library has agreed to pay a former library assistant $45,000 to settle her religious discrimination claim. She resigned after refusing, on religious grounds, to participate in an event promoting the publication of a new Harry Potter book. OnPoint provides additional details:

Library director Jacqueline Thomas had offered to let Smith help out behind the scenes at the Harry Potter celebration “in a way that Plaintiff’s church community would not know she had participated.” Smith alleged she was “constructively discharged” from her job after she “vehemently objected to participating in Harry Potter Night in any role.”

“Plaintiff has a bona fide religious belief stemming from her Christian identity and membership in a Southern Baptist church that she sincerely believes prohibits her from being involved in promotion of the worship of the occult, especially to children,” the complaint said.

Rush Nigut, of Rush on Business, on the efficacy of non-solicitation agreements, as compared to broader non-competition agreements.

Teri Rasmussen at Ohio Practical Business Law provides a very helpful FAQ on Ohio’s new Business Docket, which is being given a test run in Cuyahoga, Franklin, Hamilton, and Lucas counties. Of particular interest to employers, this new docket covers non-competition and trade secret cases, but not other employment disputes such as discrimination claims.

Molly DiBianca at the Delaware Employment Law Blog discusses DuPont’s decision to use voluntary unpaid leave to try to stem the need for layoffs.

Michael Maslanka at Work Matters reports on a case which held that that an employee’s intent to become pregnant (such as telling a supervisor you want to start a family) is protected by the Pregnancy Discrimination Act.

The Evil HR Lady has some advice on whether an employee who is not entitled to FMLA leave under the statute could otherwise obtain leave rights through misstatements by management.

Ginni Garner at COSE Mindspring gives the top 10 trends in the employee screening industry.

The Washington Labor & Employment Wire has information on the choice to head the Department of Labor’s Wage and Hour Division.

Finally, Bob Sutton’s Work Matters illustrates how not to do a layoff with a real-life example.

---

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

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

Ohio makes significant changes to its mini-COBRA law, effective April 1, 2009

More ink has been spilled about COBRA in the past two months than was written about it in total since its passage in 1985. And, the hits keep on coming. On April 1, 2009, Governor Strickland signed Sub. H.B.2, which amended Ohio’s mini-COBRA law, which makes health care continuation coverage available to employees of businesses with less than 20 employees.

Under the amended law, group health policies that are issued, delivered, or amended on or after April 2, 2009, must include the following changes:

• Continuation coverage is extended from 6 months to 12 months.
• Entitlement to unemployment compensation is no longer required to be eligible for continuation coverage .
• Employees merely must be involuntarily terminated, other than for gross misconduct (mirroring the federal COBRA requirement).
• If the group coverage includes prescription drug coverage, the continuation coverage must also include it.

Because continuation coverage has been extended to up to 12 months, Ohio employees of small businesses will now be eligible to receive the entire 9 months of federal subsidy under the federal stimulus bill. Small employers are not responsible for paying any portion of the premiums. The ex-employee will pay 35% out of pocket, and the insurance company will claim the IRS payroll tax credit for the remaining 65%.

For more information, the Ohio Department of Insurance issued detailed guidance. It has also available for download a model Continuation Coverage Election Notice.

---

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

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

EEOC settlement highlights red flags for English-only policies

The EEOC announced that it settled a national origin discrimination claim against a California nursing home company for $450,000. The lawsuit arose from a charge of discrimination filed by a Hispanic janitor who only spoke Spanish. The nursing home terminated him for violating its English-only policy. By contrast, employees who spoke other languages at work, such as Tagalog, were not disciplined or terminated. According to the EEOC, it identified a total of 53 current and former Hispanic employees who were prohibited from speaking Spanish to Spanish-speaking residents, or disciplined for speaking Spanish in the parking lot while on breaks.

The Los Angeles Times further discusses some of the affected employees:

Shilo Schilling, a 40-year-old certified nursing assistant, said she was emphatically told at orientations … that only English would be allowed. In one case … she said a resident told her in Spanish that she needed to use the restroom. When Schilling responded in Spanish, she said, she was told by a supervisor that she would be written up or fired if she continued to speak that language….

Jose Zazueta, a Mexico native who worked as a janitor at the Royalwood facility, filed the original complaint alleging that he was fired because he could not guarantee he would speak only English. Anna Park [the EEOC’s regional attorney] said Zazueta was a monolingual Spanish-speaker who warned a colleague in Spanish to watch out for the wet floor he had just mopped. When a supervisor heard him, Park said, he was asked to pledge to use only English but could not and was fired.

Despite this lawsuit, there is nothing inherently illegal about English-only policies. Generally speaking, an English-only rule is okay if supported by a legitimate business justification such as promoting communication with customers, coworkers, or supervisors who only speak English, enabling employees to speak one language to promote safety or cooperation, or facilitating supervisors’ ability monitor job performance. The employer in this case made a few critical errors:

1. It applied the rule during employees’ breaks.
2. It selectively applied the rule to certain nationalities, but not others.
3. It prohibited employees from communicating with patients in their native tongue.

As this case illustrates, employers should be careful to limit the reach of an English-only requirement only as far as it necessary to reach the articulated business rationale for the policy. Businesses should also consult with employment counsel before implementing any English-language requirements in the workplace to ensure that the policy is not discriminatory as written or as applied.

---

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.

The worst television show ever? FOX to air corporate layoffs

From the network that brought us reality TV gems such as The Littlest Groom, Who Wants To Marry a Millionaire, and My Big, Fat, Obnoxious Fiance comes the next awful idea to grace our airwaves: Someone’s Gotta Go. If you’ve yet to hear about this atrocity, here’s the premise of this in production FOX show, courtesy of Juju Chang and Kelly Hagan at ABCnews.com:

The show will highlight a small business that needs to downsize because of the economy, but instead of the bosses deciding who gets the axe, co-workers must choose who among them has to go. Workers will have to defend themselves, justifying their work habits, all leading to a group discussion to determine who gets dumped.

To help make their decision, employees will have access to each others' usually private records including budgets, human resources files and salaries.

This show is just plain wrong. First, the set-up has myriad legal risks for the employer. Having co-workers instead of management make the decision will not insulate the employer from potential liability. Risks abound for coworker harassment, coworker retaliation, or discrimination courtesy of the cat’s paw. Moreover, the inevitable release that employees will have to sign to appear on the show might insulate the producers from liability, but likely will not protect the employers. (As a side-note, I wonder if the show runners are indemnifying participating employers from any lawsuits that result from the layoffs).

More fundamentally, however, I question the corporate integrity of any company that would agree to take part in this freak show. Except in the most egregious of cases, terminating an employee is the worst thing an employer has to do. Why turn this into public humiliation? Maybe the winner in all of this is the laid-off employee, cast free from a company callous enough to televise his or her termination to millions.

[Hat tip: The Business of Management and Overlawyered]

---

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? Employees have no right to access to personnel files

There is no law in Ohio that requires an employer to grant an employee access to his or her personnel file. There are, however, two key exceptions: medical records and wage and hour records.

1. Medical Records

Ohio Revised Code 4113.23(A) covers employees access to their own medical records. It provides:

No employer … shall refuse upon written request of an employee to furnish to the employee or former employee or their designated representative a copy of any medical report pertaining to the employee. The requirements of this section extend to any medical report arising out of any physical examination by a physician or other health care professional and any hospital or laboratory tests which examinations or tests are required by the employer as a condition of employment or arising out of any injury or disease related to the employee’s employment.

Thus, employees have a right to see the medical records from a physical examination that is required for employment or stemming from a job-related injury or disease. Employers can charge employees for these records, up to 25 cents per page.

2. Wage & Hour Records

Ohio Revised Code 4111.14(G) covers employees access to their own wage and hour records. It requires an employer to provide the following information to an employee or person acting on an employee’s behalf (union representative, attorney, or parent, guardian, or legal custodian) upon request:

1. Name

2. Home address;

3. Occupation;

4. Rate of pay, which means an employee’s base rate of pay or annual salary, but does not include bonuses, stock options, incentives, deferred compensation, or any other similar form of compensation;

5. Each amount paid, which means the total gross wages paid to an employee for each pay period; and

6. Hours worked each day, which means the total amount of time an employee works during a day in whatever increments an employer uses for its payroll purposes (except for exempt employees).

An employer may require that the request be in writing, signed by the employee, notarized, and that it reasonably specifies the particular information being sought. The employer cannot charge the employee for this information, and typically an employer has 30 days to produce the records following a request..

It is not a bad idea for employers to review their current handbooks and other policies to check whether they allow for the disclosure of these two classes of information.

Guarding against defamation liability

Courtesy of my friends at PointofLaw.com is the story of the dangers that lurk when distributing information about an employee’s termination.

Staples fired one of its salesmen, Alan Noonan, after an internal audit discovered he had deliberately falsified expense reports. The day after his termination, Staples’s Executive Vice President sent the following email to all of the company’s North American employees:

It is with sincere regret that I must inform you of the termination of Alan Noonan’s employment with Staples. A thorough investigation determined that Alan was not in compliance with our [travel and expenses] policies. As always, our policies are consistently applied to everyone and compliance is mandatory on everyone's part. It is incumbent on all managers to understand Staples[’s] policies and to consistently communicate, educate and monitor compliance every single day. Compliance with company policies is not subject to personal discretion and is not optional. In addition to ensuring compliance, the approver’s responsibility to monitor and question is a critical factor in effective management of this and all policies.

Noonan sued Staples for defamation based on the content of the email. Even though the contents of the email were truthful, the court, in Noonan v. Staples, Inc. (1st Cir. 2/13/09), still found that Noonan could proceed to trial on his claim because a jury could conclude that the email was sent with what is called “actual malice.” The court focused on three key facts:

1. In his 12 years with Staples, it was the first post-termination email in which the Executive Vice President ever referred to the terminated employee by name.

2. The EVP could have sent the email to cover his own misfeasance in failing to detect widespread expense report abuses.

3. Because many of the employees who received the email did not travel, they had no reason to be advised of the travel policy or its enforcement.

Ohio law grants employers a privilege to make truthful disclosures about an employee’s job performance. Ohio’s statute, however, has an exception for the disclosure of information “with the knowledge that it was false, with the deliberate intent to mislead the prospective employer or another person, in bad faith, or with malicious purpose.” The Noonan case provides insight in how to avoid an inference of a malicious purpose when giving job performance information.

1. Consistency. If your company has a policy or practice in what types of information it discloses, stick to that policy or practice. Giving more than what is customary for your business, even if truthful, could lead one to conclude that some ulterior motive to harm motivated the disclosure of additional information.

2. Narrowness. Information should only be disclosed on a need-to-know basis. If information is sent to people who have no reason to receive it, one could infer a motive to smear one’s reputation, even if the information is truthful.

As PointofLaw.com makes clear, “in the down economy, workplace defamation lawsuits are on the rise.” Being truthful and consistent, in what you say about employees, and narrow in to whom you say it, is the best defense against such a claim.

---

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 #74

Yay! I’m number 71, alphabetically, on the Delaware Employment Law Blog’s list of the top 100 employment law blogs. Seriously, this list is a great resource if you are looking for more employment law information. Take a few minutes to add a few of my blogging colleagues to your feed reader. If you don’t know what a feed reader is, Problogger has a very good explanation. Then, add my feed also.

This week brings us some thoughts on social networking in the workplace. Rob Radcliff at Smooth Transitions gives some ideas on appropriate social networking policies. Nolo’s Employment Law Blog reminds everyone to behave on spring break lest embarrassing pictures end up online. Molly DiBianca at the Delaware Employment Law Blog has some thoughts on whether Facebook makes employees more productive.

The Trade Secrets Blog reports that the Ohio Supreme Court will decide whether standardized tests qualify as a school district’s trade secrets.

Alaska Employment Law itemizes ways plaintiffs can prove pretext in discrimination cases.

ScotusBlog analyzes the Supreme Court’s opinion in 14 Penn Plaza, LLC v. Pyett, which held that mandatory arbitration clauses in collective bargaining agreements can cover statutory discrimination claims.

Michael Maslanka’s Work Matters, on how to handle violent employees.

Michael Fox at Jottings By An Employer’s Lawyer looks at a 1st Circuit case holding that a mother of triplets was entitled to a jury trial on her sex discrimination claim based on her employer’s stereotyping of working moms.

Finally, the EFCA Report (PDF download) has put together an excellent white paper on what lies ahead for the EFCA in Congress.

---

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.

Preparing for the golden age of labor and employment law

As an employment lawyer, my practice has a lot of different aspects. I’m a counselor, helping clients tame workplace issues before they become problems. I’m a drafter, writing employee handbooks, policies, contracts, and forms. I’m an investigator, questioning employees involved in harassment and other complaints. I’m a trainer, guiding workforces, managers, and supervisors through the alphabet soup that makes up our labor and employment laws. I’m a negotiator, trying to amicably resolve employee disputes before they become fights. And, I’m a litigator and  trial lawyer, navigating companies through our state and federal courts and administrative agencies.

All these roles will be tested over the next several years. A liberal Congress, a Democrat President, and the worst economic downturn in 80 years have combined to create a world of problems for our nation’s struggling employers. The Ledbetter Fair Pay Act has already increased pay discrimination liability, and myriad layoffs have heightened the risk for age and other discrimination lawsuits. If Congress has its way, over the next several years the Employee Free Choice Act will make it significantly easier for unions to organize and bargain favorable first contracts, the FMLA will be expanded to cover smaller employers, and paid sick leave will become a reality. For these reasons, we may be at the dawning of the golden age of labor and employment law.

In light of all of these changes, it is critical that businesses not be caught unprepared. According to April 8th’s Wall Street Journal, “U.S. businesses, fearful of rising union influence and a crackdown by the Obama administration on workplace practices, are scrambling for legal advice and training.” Luckily for my readers, KJK is offering some of this advice and training for free. On May 13, my colleagues and I will present How to Stay Union Free in a Union-Friendly World, a free seminar on how to best position your non-union business to stay that way. Feel free to contact me for more information, or if you would like to attend.

---

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.

Announcing the next KJK Breakfast Briefing: How to Stay Union Free in a Union-Friendly World

Join KJK’s Labor & Employment attorneys to learn How to Stay Union Free in a Union-Friendly World. Capitol Hill is gearing up for one of its most contentious fights in decades as Congress takes sides over the Employee Free Choice Act. If passed, the EFCA will radically alter our labor laws by making it much easier for unions to be certified (whether the change in law authorizes certification by way of a simple majority of signed authorization cards and without a secret ballot election, by an election after a much shortened period of time for the employer to campaign against the union, or otherwise). Even if the EFCA never becomes law, there are a lot of lessons to learn about how best to position your business to keep unions out.

We will not only discuss what the EFCA is and how it will affect your business, but also offer some essential tips on how to effectively manage your workforce to make union penetration less likely, no matter what form the new law ultimately takes. This free Breakfast Briefing is crucial for any business that is and wants to remain union free.

• Date: Wednesday, May 13, 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 (on-site parking is free)

If you are interested in attending this free seminar, or for more information, please contact Andrea Hill, (216) 736-7234 or ach@kjk.com, by May 11, 2009.

Errata: Ohio does prohibit cost-shifting for pre-employment medical exams

Famed columnist William Safire once said, “Nobody stands taller than those willing to stand corrected.” I hope he’s right, because I feel pretty small right now.

Last week I stated that Ohio law is silent on the issue of whether an employer can charge an employee for a pre-employment medical exam. As it turns out, I was wrong. A colleague directed me to Ohio Revised Code 4113.21, entitled, “Employee shall not be required to pay cost of medical examination.” It provides:

No employer shall require any prospective employee or applicant for employment to pay the cost of a medical examination required by the employer as a condition of employment.

In other words, Ohio employers are absolutely forbidden from passing on the cost of pre-employment medical examinations to employees.

The penalty provision of this statute is also worth taking a look at:

Any employer who violates this section shall forfeit not more than one hundred dollars for each violation.

Assuming a routine physical costs more than $100, what is an employer’s incentive not to violate this provision by passing the cost onto employees and paying whatever lesser fines may come later?

---

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? Legal risks in considering cancer survivors for employment

Cancer survivors are 37% more likely to be unemployed than their healthy counterparts. (See Cancer Survivors Struggle to Find Jobs, Study Finds). There are two likely explanations for this disparity: some cancer survivors are simply not healthy enough to return to work, while others become too expensive to employ because of the added health care costs. It is the treatment of the latter category that concerns me as an employment lawyer.

Pre-screening applicants with a history of cancer from consideration for positions raises two huge red flags: disability discrimination based on a record of an impairment or perceived impairment, and genetic information discrimination. Refusing to hire an applicant based solely on a history of cancer would almost certainly violate both the Americans with Disability Act (and its Ohio counterpart), and possibly the Genetic Information Nondiscrimination Act.

The best defense against this type of claim is not to gather medical information at the application or interview stage. Yet, even when an employer tries to avoid the topic, it can innocently arise. For example, when someone has a two-year gap on his or her resume, it is necessary to ask, “What were you doing for the two years you weren’t working?” For someone who was away from the workforce because of cancer treatments, the answer likely will reveal information that could lead to an inference of discrimination if the applicant is not hired. The best defense against these problems is two-fold:

1. Meaningful and effective training of interviewers so that they do not fall into these potential traps. For example, instead of asking, “Why weren’t you working?” ask, “What did you do during your gap in employment to keep your skills current?” The latter question will not only avoid the potential disclosure of medical information, but also provide some useful information about the applicant’s skill-set.

2. Ensuring that the best, most qualified person is hired to fill any vacancy, regardless of medical history and gaps in employment.

---

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.

More on laying off the protected

Last month I provided some tips on how to properly layoff employees who happen to fall into a protected class. Last week, in Bell v. Prefix, Inc., the 6th Circuit helped drive home my point, and teaches some important lessons on proper layoff techniques.

Jonathan Bell claimed that Prefix included him a layoff in retaliation for a recent FMLA leave of absence he took to care for his dying father. Between July 22 and August 5, 2005, Bell took 3½ days of approved FMLA leave while his father was hospitalized for heart surgery. At the same time, Prefix’s new general manager began an ad hoc termination of employees to save money during a substantial downturn in business. Bell’s termination came August 8, just two weeks after the start of his FMLA leave and three days after his last FMLA absence.

In reinstating Bell’s FMLA retaliation claim for a jury trial, because a reasonable jury could conclude that Prefix held a retaliatory motive in terminating Bell. The court focused its decision on the collective strength of five pieces of evidence:

1. When Bell had to leave work after receiving an emergency call from the hospital, the general manager belittled him in front of his co-workers, and in a raised voice “accused him of ‘abandoning’ Prefix when there was work to be done.”

2. In discussing Bell’s termination, the general manager commented that he needed to work more hours.

3. The general manager’s comments about poor work quality are directly contradicted by Bell’s only written performance review.

4. The close temporal proximity between Bell’s FMLA leave and the termination.

5. The lack of any formal structure for the RIF, or the use of any objective process or criteria in selecting employees for inclusion.

This case teaches employers some very important lessons in how to conduct a RIF.

1. It is important to have some structure for the RIF, whether it is written criteria (objective or subjective), past performance, ranking of employees, or some other basis. A rationale that can be justified is needed for why one employees was RIFed over another.

2. Discussions about who will or will not be included should be kept to a minimum. This point rings even more true if the decision is solely based on some objective criteria.

3. Assume that any comments that can in any way be twisted to appear discriminatory or retaliatory will come back to haunt you in later litigation.

---

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.