Government updates swine flu guidance for businesses

Just a quick note to let everyone know that the federal government has updated its flu guidelines for businesses.  Ann Beauchesne at The Chamber Post has the details.

Refusal to take drug test bar workers’ comp retaliation claim

Many companies require employees to submit to drug tests after suffering a workplace injury. The rationale is simple – intoxication is one of the few complete defenses an employer has to a workers’ comp claim for a workplace injury.

What happens, though, if the injured employee refuses to take the drug test? That scenario presented itself to SanMar Corporation in late-2006. Thomas Ferguson left work complaining of a non-work-related backache. He told the ER nurse, however, that his pain was caused by an aerial harness he had to wear at work. Upon hearing the injury was work-related, the nurse asked Ferguson to submit to a drug test, which he did.

Ferguson returned to work the following week with light duty restrictions. SanMar’s HR department that he needed to submit for drug testing. Ferguson complained that he had already taken a test the prior week. SanMar, however, required a re-test because the earlier test did not comply with its policy for the employee to be transported to the testing facility. Ferguson went on his own, without SanMar even knowing he had suffered a workplace injury.

Because of Ferguson’s protests about the re-test, and his “nervous and fidgety” reaction, SanMar’s Assistant Manager required that the re-test be monitored. Upon learning that the drug test would be observed, Ferguson refused to be tested. SanMar subsequently terminated him for refusing to submit to a drug test in contravention of company policy.

Ferguson sued, claiming that SanMar terminated him in retaliation for his workers’ comp claim. In Ferguson v. SanMar (8/17/09), the Butler County (Ohio) Court of Appeals affirmed the trial court’s dismissal of Ferguson’s claim:

Kirk, as assistant facility manager, made that determination after noticing Ferguson’s “nervous and fidgety” reaction to being asked to resubmit to a drug test. Kirk’s decision was not punitive action against Ferguson because Ferguson filed a workers’ compensation claim. Instead, it was a management decision predicated on a suspicion that Ferguson was using drugs or alcohol in the workplace.

For Ferguson’s argument to succeed, the evidence would have to show that SanMar knew that requiring him to be transported to the hospital and observed while he submitted to the test would induce Ferguson’s refusal to be tested. There is no way that SanMar, or anyone for that matter, could have known that Ferguson would refuse to be tested…. It was Ferguson’s own refusal to submit to the test that motivated his discharge. That refusal, under the written policy, was likewise sufficient to result in Ferguson’s discharge.

Drug testing policies are complicated and very easy to get wrong. Indeed, while Ohio does not have a specific statute that governs such policies, other states do (Oklahoma comes to mind). If you are considering implementing a drug testing program for your workforce, experienced counsel should vet it before you put it into circulation. If you already have a policy in place, it should be reviewed periodically for compliance.

---

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? Harassment by a non-employee

Last week, an Orlando, Florida, jury convicted a Pennsylvania tourist of groping Minnie Mouse. Apparently, the man thought it was okay to grab Minnie’s breasts and bottom through her costume while visiting the character at the Magic Kingdom.

Do you know what an employer’s obligations are when an employee complains of harassment by a non-employee such as customer, vendor, or contractor? The obligations are exactly the same as if the alleged perpetrator was an employee. In fact, Ohio has a specific regulation that addresses this exact scenario: Admin. Code 4112-5-05(J)(5):

An employer may also be responsible for the acts of nonemployees (e.g., customers) with respect to sexual harassment of employees in the work place, where the employer (or its agents or supervisory employees) knows or should have known of the conduct and fails to take immediate and appropriate corrective action. In reviewing these cases the commission will consider the extent of the employer’s control and any other legal responsibility which the employer may have with respect to the conduct of such nonemployees.

At the end of the day, a harassment complaint by an employee against a non-employee should not be treated any differently than an intra-employee complaint:

1. Separate the complaining employee from the alleged harasser.

2. Promptly and fully investigate the allegations.

3. Evaluate the evidence and make a reasoned conclusion as to what happened.

4. Take prompt and effective remedial steps, if necessary.

5. Use the complaint as an opportunity to retrain employees about your sexual harassment policy.

[Hat tip: Employeescreen IQ 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.

Papering a personnel file as evidence of retaliation?

When Carolyn Upshaw started filing EEOC charges against her employer, Ford Motor Company, it began to document her on-going performance problems. After she filed her 3rd charge and a lawsuit in a 15-month period, Ford terminated her employment. The termination occurred nine months after the last EEOC charge and four months after the lawsuit was filed. In Upshaw v. Ford Motor Co. (8/14/09) [PDF], the 6th Circuit concluded that her underlying discrimination lawsuit was baseless, but that her retaliation lawsuit, premised on the timing of Ford’s documentation of her performance problems, warranted a jury trial:

We have held that the combination of close temporal proximity between an employer’s heightened scrutiny and that plaintiff’s filing of an EEOC charge is sufficient “to establish the causal nexus needed to establish a prima facie case” of retaliation…. Here, Upshaw has proffered evidence that Ford subjected her to heightened scrutiny soon after she filed her 2003 EEOC charge. It is undisputed that Hughes-Sharp and Brooks began developing a timeline of Upshaw’s employment in fall 2003, and that they requested that other Ford employees submit information about Upshaw’s complaints to Human Resources…. Given the close temporal proximity between Upshaw’s August 2003 EEOC charge and Ford’s request for information from other employees documenting Upshaw’s complaint activity, and Brooks’s request for discipline, a reasonable juror could find that Upshaw has established a prima facie case of retaliation.

I’ve written in the past about the importance of timely and accurate documentation of performance problems. The Upshaw case underscores this point. It is not enough to document performance problems. The documentation must be consistent. A lot of employers think nothing of papering a personnel file after an employee becomes a pain in their side. Under Upshaw, such papering, that only begin once an employee files a discrimination charge or engages in other protected activity, could be used as prima facie evidence of retaliation. In other words, document early and document often, and don’t document selectively.

---

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 #91

This week’s tip-of-the-week is courtesy of Rush Nigut’s Rush on Business – get it in writing. A handshake or an oral promise is only as good as the relationship that supports it. The problem, however, is that by the time that handshake ends up in court, the relationship that underlies is has deteriorated to the point that, well, you’ve ended up in court. And it’s amazing how bad memories become once a relationship has deteriorated into litigation.

Mark Toth’s Manpower Employment Blawg draws some lessons on how not end up in court based on some recently reported EEOC settlements and verdicts.

Anthony Zaller at the California Employment Law Report offers the top 10 mistakes in drafting job descriptions. I’ll add number 11 (which should really be number 1) – not having written job descriptions at all.

Dennis Westlind at World of Work shares his opinion on Title VII and body piercings.

Jeffrey Hirsch at the Workplace Prof Blog discusses yet another employee fired for something posted on her Facebook page – in this case, expletive complaints about her boss.

Staying on the topic of social networking, Patrick Smith’s Iowa Employment Law Blog thinks that employers should act cautiously when performing internet searches on job applicants.

William Bowser at the Delaware Employment Law Blog tells when an employer should consider offering severance.

Dan Schwartz at the Connecticut Employment Law Blog helps employers brace for this fall’s return of the swine flu.

Finally, I end this week’s review with some wage and hour topics.

Jennifer Hays at the Warren & Hays Blog has an important bit of information for officers and managers – they can be held independently liable for unpaid wages under the FLSA.

Wage & Hour Counsel talks about when employers are and are not liable for employees’ time spent changing into and out of company-issued gear.

Fair Labor Standards Act Law discusses retaliation under the wage and hour laws.

Finally, Jay Shepherd’s Gruntled Employees reports on a ruling by a Massachusetts court that a strip club had misclassified its dancers as independent contractors. Jay’s advice if you mess up an employee’s pay:

There’s no defense if you got it wrong. Our advice to employers: make sure you get the pay right. Or be prepared to settle if you don’t.

And bring plenty of singles.

---

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.

Can you still be funny at work in a politically correct work?

Today’s HR Daily Advisor, published by BLR, asks the following question: Can You Still Tell a Joke in the Office? Instead of answering that question, I turn today’s post over to David Brent:

---

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.

Lawsuits over off-the-clock smart phone use ask, “What is work?”

More than two years ago I cautioned that employers who require non-exempt employees to carry Blackberries or other devices that receive work-related emails could be liable for the time those employees spend reading and responding to those emails outside of work. (Can't get away from the office).

It appears that the plaintiffs’ bar has caught with this potential theory of liability. Michael Sanserino, in Monday’s Wall Street Journal, reports that two different lawsuits have been filed claiming that hourly employees should be compensated for time spent responding to emails while off the clock.

Even if reading and responding to work related email is work-related (and it likely is), I’m not convinced that employers should have to pay for any time spent performing these tasks. Most messages can be read in a matter of seconds or, at most, a few short minutes. The Fair Labor Standards Act calls such time de minimus, and does not require compensation for it. “Insubstantial or insignificant periods of time beyond the scheduled working hours, which cannot as a practical administrative matter be precisely recorded for payroll purposes, may be disregarded.” 29 C.F.R. § 785.47. Think of the administrative nightmare of an HR or payroll department having to track, record, and pay for each and every fraction of a minute an employee spends reading an email.

If a business wants to err on the side of caution, it could always draft a policy requiring employees to turn off their smart phones when they leave work for the day, or simply leave them at the office. With that policy, though, why issue the devices in the first place?

For more thoughts on this topic, I recommend the thoughts of my fellow bloggers:

• Ashby Jones at the Wall Street Journal Law Blog.
• Devora Lindeman at the Overtime Advisor.
• Patrick Smith at the Iowa Employment Law Blog.
• Jeffrey Hirsch 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.

Do you know? FMLA fitness-for-duty certifications

In a previous post, I detailed the new FMLA regulation’s eligibility notice and designation notice requirements. The FMLA also has specific requirements for how an employer must go about obtaining a fitness-for-duty certification from an employee on an FMLA leave for his or her own serious health condition.

1. Mandatory written notice. Before an employer can require an employee to provide a fitness-for-duty certification, it must expressly be provided for in a written FMLA policy or in the designation statement given to the employee at the outset of the leave. Additionally, if the employer wants the certification to address the essential functions of the employee’s job, a list of such functions must be provided to the employee with the designation notice.

2. Uniformity. The employer must have a uniformly-applied policy or practice that requires all similarly-situated employees (i.e., same occupation, job function, or serious health condition) who take leave for such conditions to obtain and present the certification.

3. Limited to the specific health condition. An employer may only seek a fitness-for-duty certification with regard to the particular health condition that caused the employee’s need for FMLA leave.

4. Cost. The employee must pay for the cost of the certification, and the employee is not entitled to be paid for the time or travel costs spent acquiring the certification.

5. Clarification. While an employer can seek clarification of a fitness-for-duty certification with an employee’s health care provider under the same rules applicable to other communications with an employee’s health care provider, the employer cannot delay the employee’s return to work pending the clarification. Unlike the initial leave certification, an employer cannot seek a second or third opinion of a fitness-for-duty.

6. Denial of job restoration. An employer can deny restoration, however, if a properly requested fitness-for-duty certification is not returned by the employee.

7. Intermittent or reduced work schedule leave. An employer is not entitled to a certification for each absence taken on an intermittent or reduced leave schedule. An employer is entitled, though, to a certification for such absences up to once every 30 days if reasonable safety concerns exist regarding the employee’s ability to perform his or her duties, based on the serious health condition for which the employee took such leave. An employer may not terminate the employment of an employee while awaiting such a certification for an intermittent or reduced schedule leave absence.

8. Interplay with the ADA. After an employee returns from FMLA leave, the ADA requires any medical examination at an employer’s expense by the employer’s health care provider be job-related and consistent with business necessity. If an employee’s serious health condition may also qualify as a disability under the ADA, the FMLA does not prevent the employer from following the procedures for requesting medical information under the ADA.

---

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.

Bullying versus harassment

It is generally agreed that the anti-discrimination laws do not create a general code of workplace civility. Employees are generally expected to endure the usual tribulations of the workplace, such as the sporadic use of abusive language, offhand comments or jokes, occasional or simple teasing, normally petty slights, minor annoyances, and the simple lack of good manners. Harassing conduct is only actionable if it is objectively and subjectively severe or pervasive so as to alter the terms and conditions of one’s employment.

In light of this standard, consider the following set of facts, which arose in Hidy Motors, Inc. v. Sheaffer (Ohio Ct. App. 7/31/90), an age harassment claim brought by a 67-year-old car salesman:

• When the general manager would walk behind Sheaffer he would repeatedly say, “Come on old man, pick up your feet.”
• After Sheaffer told the general manager that a couple wanted to go home and think about buying a car, the general manager told him, “Come on old man, get your f****** head out of your f****** ass and go out there and slam them.”
• Referring to Sheaffer, the general manager directed another sales person to help the “old man” close a deal.
• In discussing a disagreement over a sales bonus, the general manager told Sheaffer, “Old man, I don’t give a f*** what you think. That’s the way it is going to be.”
• After a child spilled some water on the floor, the general manager told Sheaffer, “I’ve heard that’s what happens when you get your age - you can’t control yourself.”

Based on this conduct, the appellate court reversed the trial court’s summary dismissal of the age harassment claim and sent Sheaffer’s claim back for trial.

There is no doubt that this particular general manager has an interesting management style, and is probably what one would call a bully. But, should a few instances of a 67-year-old employee being called “old man” support a harassment claim? There is a clear line between general bullying/boorish management and actionable harassment. I question whether this case falls on the right side of that line.

---

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 #90

BLR’s HR Daily Advisor offers 10 tips to avoid employment lawsuit, in two parts – part one and part two.

Meanwhile, Jennifer Hays at the Warren & Hays Blog sums up lawsuit avoidance in one simple step – fire with a heart.

And, if you are sued, Michael Maslanka’s Work Matters suggests

Darcy Dees at Compensation Cafe reminds everyone that being wrong in a wage and hour lawsuit can have costly consequences for an employer if willfulness can be proven.

Michael Fox’s Jottings By An Employer’s Lawyer draws a connection between a good performance review, a termination, and a million dollar jury verdict in a discrimination lawsuit.

The Evil HR Lady offers some advice to a pregnant employee who is not eligible for FMLA leave.

Molly DiBianca at the Delaware Employment Law Blog digests a bunch of resources for employers seeking to promote a work-life balance.

Today’s Workplace asks if there is a link between the recession and increased workplace harassment.

The Overtime Advisor shares its thoughts on wage and hour issues and smartphone usage.

Want to know what’s wrong with American class action litigation – the Point of Law Forum reports on a $25,037,500 class settlement in which the plaintiff’s lawyers will receive $25,000,000, and the class members will receive $37,500 in discounts towards the purchase of future automobiles.

Patrick Smith at the Iowa Employment Blog provides a good summary of recent headlines in religious discrimination.

Marcia McCormick at the Workplace Prof Blog discusses the introduction of the Employment Non-Discrimination Act in the Senate. The bill would ban discrimination on the basis of sexual orientation and gender identity.

On Point reports that a Philadelphia hair salon is being sued by a male hair stylist who claims he was told it was “socially unacceptable” for him to “look like a girl.”

Carl Bosland at The FMLA Blog reports on legislation that could expand military leave benefits.

According to Workplace Privacy Counsel and the Philadelphia Bar Association, it is unethical for an attorney to use a third party to gain access to witnesses Facebook or other social networking page.

---

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.

Know when to fish, know when to cut bait

Justin Barrett, the Boston police officer who was fired for calling Harvard professor Henry Louis Gates Jr. a “banana-eating jungle monkey,” has filed a lawsuit against the Boston police department, police commissioner, and mayor. Defending himself on Larry King Live last week, Barrett said that he is not a racist:

I would like to take this opportunity to offer fellow police officers, soldiers and citizens my sincerest apology over the controversial e-mail I authored. I am not a racist. I did not intend any racial bigotry, harm or prejudice in my words. I sincerely apologize that these words have been received as such. I truly apologize to all.

Let me put this as simply as possible – when you send an e-mail calling an African American a “jungle monkey” not once, not twice, but four different times, whether you are or are not a racist is irrelevant. All that matters is that everyone is going to perceive you as a racist.

In employment cases, perception is 90% of the battle. For example, let’s suppose the “jungle monkey” to whom Mr. Barrett referred was not Professor Gates, but was a subordinate Mr. Barrett had recently terminated. It’s possible he could convince a jury that racial animus did not motivate his decision, although highly unlikely. If your explanation as to why an employee was fired cannot pass the smell test, the case is one that should be quickly settled instead of expensively litigated.

[Hat tip: 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.

The importance of handbook disclaimers

Employee handbooks come in all shapes and sizes. For example, some employers have different policies that cover exempt versus non-exempt employees. Some employers have policies that create a probationary period for employees during the initial few months of employment. Some employers have progressive discipline policies. And some even grant formal appeal rights to employees who are disciplined or terminated.

In Fennessey v. Mount Carmel Health System (Franklin Cty. Ct. App. 7/30/2009) [PDF], a terminated nurse claimed that each of these policies set forth in Mount Carmel’s employee handbook either created an implied contract of employment, or consisted of a definitive promise on which she reasonably relied thereby binding her employer.

Thankfully for Mount Carmel, its handbook contained two items that no employee handbook should be without – an at-will employment disclaimer, and a signed acknowledgement by the employee affirming her at-will status. The disclaimer stated:

110.1 Employment At Will 

An employee of Mount Carmel Health System is an employee at will. The employee or Mount Carmel Health System can terminate the employment relationship at any time for any reason. No statement in this manual will be interpreted or applied as a contract of employment.

The signed acknowledgement stated:

I recognize Mount Carmel Health System has the right to change provisions in this manual and other policies…. I understand that no representative of Mount Carmel Health System has the authority to make an agreement contrary to the provisions of this manual. 

I recognize this manual does not constitute a contract of employment. I understand that, at any time, for any reason, I can separate my employment relationship and that Mount Carmel Health System has the same right regarding my employment status.

Based on these two statements, the appellate court affirmed the trial court’s dismissal of Fennessey’s promissory estoppel and breach of implied contract claims.

This case not only illustrates the vital importance of disclaimers and acknowledgements in handbooks, but also the need that certain critical language appear in all handbooks

1. A specific statement that employment is at-will, without exception.
2. An explanation, in plain English, of what at-will employment means.
3. A statement that no one can create a contract contradictory to the provisions of the handbook.
4. A statement that that handbook is merely a unilateral statement of rules and policies which creates no rights or obligations.
5. A statement that the handbook is not a contract and not intended to create an express or implied contract.
6. A statement that the employer has the unilateral right to amend, revise, or eliminate policies and procedures as needed.
7. A statement that employees should not rely on any statement in the handbook as binding on the company.

Do you know? Mandatory overtime

We should all know that any hours a non-exempt employee works in excess of 40 in any given week must be paid at a premium rate of one and one-half times the regular rate of pay. But, do you know whether there are any laws that inhibit an Ohio employer’s right to require that employees work more than 40 hours in a week?

The answer is no. An Ohio employer can legally require that its employees work overtime. There are no federal or Ohio laws that prohibit or otherwise limit the right of an employer to require its employees to work as many hours as an employer sees fit. Thus, an employer can require its employees to work more than eight hours in day and more than 40 hours in a week, without restriction. As extreme as it may seem, an employer can require an employee to work 24 straight hours, or work 80 or more hours in a week. Moreover, if an employee refuses to work overtime, an employer can discipline that employee, up to and including termination.

The only restriction placed on overtime work is that it must be paid at the statutory premium rate. Now, retaining employees that you require to work 20 hours a day or 80 hours week after week is another question entirely…

DOL publishes FAQ on furloughs and other reductions in pay and hours worked issues

While the economy is beginning to show signs of slowing turning around, businesses are still turning to employee furloughs and other alternative work schedules as a means to save costs and jobs. I’ve previously written on some of the wage and hour issues employers need to mind in implementing a furlough program. See Risks abound for businesses considering unpaid time off to save costs. The Department of Labor has now stepped into the fray and has published Frequently Asked Questions Regarding Furloughs and Other Reductions in Pay and Hours Worked Issues [PDF]. According to the DOL, its guide is “intended to answer some of the most frequently asked questions that have arisen when private and public employers require employees to take furloughs and to take other reductions in pay and / or hours worked as businesses and State and local governments adjust to economic challenges.”

If you are still considering implementing a furlough program or other alternate work schedule, this FAQ is a good starting point to helping you navigate the maze of wage and hour laws that impact your decision. Because of the complexity of these issue, I still recommend consulting with employment counsel before final implementation.

---

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 #89

This week’s highlighted post is courtesy of Dennis Westlind at World of Work. Dennis brings us a link to an online game, Card Checked: The Game. Card Checked takes you to a post-EFCA world in which union organizers try to intimidate you into signing an authorization card. Threats are made, windows are smashed, laws are broken, and in the end … well, play the game and find out whether your tattoo parlor ends up unionized.

Workplace Horizons reports that Labor Secretary Hilda Solis intends to enforce “wage and hour laws more aggressively to ‘send a message’ to employers that they must comply with federal minimum wage, overtime, and other requirements.” Yet another reason to conduct that internal audit.

The Word on Employment Law with John Phillips shares his thoughts on reverse age discrimination.

Arkansas Employment Law compiles some links from around the web discussing how to handle workplace harassment.

Sindy Warren at the Warren & Hays Blog digests a recent 4th Circuit decision that discusses the different of remedial measures versus effective remedial measures in a sexual harassment case.

Dan Schwartz at the Connecticut Employment Law Blog offers some information on what employers should be doing about texting while driving.

Jonathan Turley's res ipsa loquitur blog, courtesy of Rush Nigut’s Rush on Business, details the story of an employee terminated because of his wife’s work as an adult film star.

Michael Haberman’s HR Observations talks about the treatment of employee bonuses for overtime purposes.

Mindy Chapman’s Case in Point discusses under what circumstances an employer has to accommodate the needs of a diabetic employee.

Jason Shinn’s Defending the Digital Workplace discusses a case in which a group of terminated employees were awarded punitive damages based on their employer’s surreptitious access of their MySpace pages.

The Washington Employment Law Blawg presents the top 10 most common employee handbook mistakes. When reviewing your handbook, add this list to my earlier list of 8 common employee handbook mistakes, and how to avoid them.

The EBG Trade Secrets & Noncompete Blog asks a very good question – where is the line between competing and preparing to compete? If an employee is merely engaged in the latter, he or she likely is not violating a noncompete agreement.

Finally, I Hate People...But It’s Nothing Personal, on the art of saying “No.”

---

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.

A short rant, and a lesson on employee appreciation

I’m always happy to answer an email or a phone call from a reader. Yesterday, I received an email from someone asking me a question about something I wrote in a publication called What’s Working in Human Resources. The problem is, I never wrote anything for What’s Working in Human Resources. I googled the publication, and discovered two things: its published by Progressive Business Publications out of Malvern, PA, and its publications are not available online. The emailer graciously forwarded me a copy of the article. What I discovered frankly shocked me. What’s Working in Human Resources had “borrowed” content from a post I wrote earlier this year, and made it look like I had given an interview.

Now, I’m all for free publicity, and I am happy to talk to any reporter who is looking for a quote on an employment law issue. All you have to do is ask. Just this year I’ve been quoted in the Wall Street Journal, Business Insurance Magazine, and the National Law Journal, to name a few. What bothers me is that my content was borrowed without my permission, and passed off as if I had spoken to this publication.

In response to my email asking that Progressive Business Publications cease using my content without my permission, I received the following:

We’ll be happy to comply with your wishes.

I’d like to point out, however, that we classified you as an expert and provided contact information where our readers might avail themselves of your wisdom. We find most employment lawyers think that’s a good thing.

Apparently, being called an “expert” is supposed to compensate me for the copyright violation.

From this tale, which consumed way too much of my time and energy yesterday, what lesson can employers learn? Give credit where credit is due. One of the easiest ways to make an employee feel undervalued and put that person at risk of leaving an organization is for management to take that employee’s ideas and hard work and pass it off as its own. Proper attribution and credit is easy to give, and usually goes a long way to making employees feel appreciated.

---

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.

Nashville jury rejects associational harassment claim

If a white employee stands up for her black co-workers, and is then ostracized and called racially-charged names because of it, is she entitled to compensation for the alleged harassment? According to one Nashville jury, the answer is no.

In Barrett v. Whirlpool Corp. (6th Cir. 2/23/09), the 6th Circuit determined that an employee cannot pursue a claim for retaliation based solely upon a relationship to a co-worker who engages in protected activity. The court also remanded for trial the racial harassment claim of one of the plaintiffs, Treva Nickens. She claimed that after she spoke out in favor of black co-workers who had filed a race discrimination suit against Whirlpool, she faced routine racist slurs and graffiti (such as being called a “nigger lover”), was told that she should stay with her own kind, was disciplined more harshly than whites, and was passed over for a promotion. According to The Tennessean, the jury rejected Nickens’ associational harassment claim.

Despite the jury’s verdict on the specific facts presented by Nickens, the law remains that harassment as a result of one’s association with or advocacy for protected employees is just as unlawful as harassment directed at a member of a protected class.

Even though Whirlpool escaped liability in this case, employers should not read this verdict as a license to permit harassment against employees associated with employees in a protected class. Employers must treat all allegations and complaints of harassment seriously. Investigations should be timely and thoroughly completed. Policies should be reviewed and reinforced. Appropriate corrective action should in instituted where warranted.

---

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? Employers can communicate directly with employees’ health care providers for FMLA certifications

The recent changes to the FMLA’s regulations make it that much easier for employers to gather information about the medical need for an employee’s FMLA leave of absence. If an employee’s FMLA medical certification is incomplete (required information is omitted) or insufficient (the information provided is vague, ambiguous, or non-responsive), an employer is now entitled to request additional information directly from the employee’s health care provider.

This ability, however, has certain key limitations:

1. Before an employer can directly contact the health care provider, it must first advise the employee, in writing, of the deficiency in the certification and provide at least seven days for the employee to cure.

2. Thereafter, an employer can directly contact an employee’s health care provider solely for purposes of clarification (to understand the handwriting on the medical certification or the meaning of a response) or authentication (verification that the health care provider completed or authorized the completion of the certification form).

3. Contact, however, is limited to an employer’s own health care provider, a human resources professional, a leave administrator, or a management official.

4. Under no circumstances may the employee’s direct supervisor contact the employee’s health care provider.

5. Employers may not ask health care providers for additional information beyond that required by the FMLA certification form (including diagnostic information).

6. While an employee must give his or her written authorization before the employer can make contact with the health care provider, the employee’s failure to consent entitles the employer to deny the FMLA request.

7. The standard rules of confidentiality of employee medical information still apply.

---

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.

Federal minimum wage increases, but does it matter to Ohio’s employers?

On July 24, the federal minimum wage rate increased to $7.25 per hour. However, as of January 1, 2009, Ohio’s minimum wage raised to $7.30 per hour. Thus, the new federal minimum wage has no effect except on the smallest of Ohio’s employers. Those businesses that gross less than $267,000 annually must comply with the $7.25 per hour rate. Ohio’s minimum wage will increase again on January 1, 2010 (and again on each January 1 thereafter) by the average rate of inflation for the prior September to September 12-month period.

Ohio is one of 14 states (including the District of Columbia) with a minimum wage higher than the federal mandate. Feel free to debate the effect of higher wage rates on business growth and development in the comments. The bottom line for most Ohio businesses is that the higher federal minimum wage simply does not matter.

---

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 #88

A few weeks ago I cautioned about the dangers that lurk in positive recommendations on LinkedIn. Two of my blogging brethren disagree. Read the opposing viewpoints of Dan Schwartz at the Connecticut Employment Law Blog and Molly DiBianca at the Delaware Employment Law Blog.

I’ve often preached on the importance of treating employees fairly. Becky Regan at Compensation Cafe agrees.

I’ve previously reported that employers might be at risk for unpaid wages for non-exempt employees who check work-related email off-the-clock (Overtime pay for reading emails and Can't get away from the office). It seems that plaintiffs’ lawyers are starting to take notice of this issue. According to Kim Licata at Fair Labor Standards Act Law, “T-Mobile USA has been sued in the Eastern District of New York by its retail sales associates and supervisors who allege that they were not compensated for "off-the-clock" activities linked to Blackberrys and other hand-held device.”

The recent changes to the proposed Employee Free Choice Act continue to garner a lot of attention. For more thoughts on this issue I suggest Michael Fox’s Jottings By An Employer’s Lawyer and the EFCA Report.

Jennifer Hays at the Warren & Hays Blog offers some practical information on what to do and what not to do during a union organizing campaign.

James Gelfand at the Chamber Post breaks down the impact the pending health care legislation will have on employers.

World of Work shares 7 ways employers can save on litigation costs.

This week has a couple of good posts on employees’ use of vacation time: Philip Miles’s Lawffice Space shares his thoughts on mandatory vacation days, while Kari Henley at Today’s Workplace thinks we all work too hard and praises the introduction of the Paid Vacation Act of 2009, which would amend the Fair Labor Standards Act to require that employers provide all employees with 1 week of paid leave per year.

Kris Dunn, The HR Capitalist, has some suggestions on what to do when an employee has a positive drug test.

Workplace Privacy Counsel suggests that laws against online harassment may aid employers battling disgruntled ex-employees.

Wage and Hour Counsel shows how reliance on a Department of Labor opinion letter can save your bacon in a wage and hour lawsuit.

Strategic HR Lawyer has some advice for employees on what not to post on Twitter.

Finally, Dan Schwartz at the Connecticut Employment Law Blog uses a personal anecdote to illustrate the importance of communicating with the complainant in a workplace investigation.

---

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.