Dirty jokes on sex harassment plaintiff’s computer ruled in play

Harassment cases are often he said/she said. How does one go about proving, for example, that a plaintiff isn’t as offended about the her boss’s sexual comments and innuendo as she says she is? In Seybert v. The International Group (E.D. Pa. 10/13/09) [PDF], the employer searched the plaintiff’s workplace computer for evidence of her own participation in sexual banter.

Susan Seybert claimed a sexually hostile work environment based on the following conduct:

• Her supervisor, Brett Marchand, stared at her breasts on two separate occasions.
• Marchand comment to her, regarding the dessert at a work-sponsored dinner, “I heard it’s really good if you go down deep, into the chocolate, with your berry.”
• Marchand berated and yelled at her on a number of occasions, ignored her in a manner that made it difficult for her to do her job correctly, and gave her a bad performance review.

In support of its defense of the harassment claim, ICI argued that Seybert wasn’t subjectively offended by the boorish conduct, and sought to introduce the following intra-office emails from Seybert’s work computer:

Stories, jokes, photographs, cartoons and the like, along with occasional commentary from Mrs. Seybert or others along the specific email chain, using sexual words, metaphors, puns, double entendres, and other innuendo.

Over Seybert’s objection, the trial court allowed the emails to be considered at trial.

Here, the emails with sexual content involve the same general type of humor as Mr. Marchand’s comment at the Recognition Dinner - a humor rooted in sexual innuendo and supposed euphemisms. For instance, Mr. Marchand’s alleged comment about going “down deep into the chocolate [dessert] with your berry” presumably could be likened to Exhibit No. 61, which contains a photograph of an elderly man wearing only a Santa hat and boots, resting on his stomach, with the caption, “Just Roll Me Over Darlin … ‘cause I’m Layin On Yer Present.” … Accordingly, IGI is entitled to pursue the argument that the emails are relevant to Mrs. Seybert’s possible appreciation of this type of humor, and specifically, whether she was subjectively offended by Mr. Marchand’s comment….

Just as the email exchanges are relevant to show whether Mrs. Seybert was subjectively offended by Mr. Marchand’s “berry” comment, they are also relevant to the issue of whether Mrs. Seybert experienced emotional distress as a result of the comment. This is because, at the most basic level, the email exchanges show the effect of the “berry” comment on Mrs. Seybert’s mental state - that is, whether the comment made her distressed, offended, or something else.

As technology continues to evolve and become more entrenched in every aspect of the workplace, more and more employment cases turn on an email, text message, or other piece of electronic evidence. Most times, it seems that employers have these media used against them as proof of the alleged discrimination or other misconduct, It’s refreshing, for a change, to see these tools used by an employer to defend itself.

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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 #100

Hard to believe this feature has hit the triple-digit mark.

Frank Roche called his shot even before last night’s dissection of the Dodgers. Read why he thinks the Phillies are going to win it all.

Louis DiLorenzo, at the New York Labor & Employment Law Report, offers 7 tips to keep in mind as you begin drafting those year-end performance reviews.

Self-proclaimed animal lover Molly DiBianca, at the Delaware Employment Law Blog, shares her thoughts on bizarre service animals under the ADA.

Jewel Bennett, at Arkansas Employment Law, thinks that just because conduct may not rise to the level of actionable harassment, it does to provide an excuse to be uncivil.

Sindy Warren, at the Warren & Hays Blog, draws some workplace lessons from the never-ending “Balloon Boy” saga.

Matt Mennes, writing at COSE Mindspring, thinks employers should be using pre-dispute arbitration clauses with employees. I could not disagree more.

Eric Welter, at The Laconic Law Blog, thinks the workplace is no place to wear Halloween costumes.

Jeffrey Hirsch, at the Workplace Prof Blog, reminds us that October is National Work and Family Life Month.

Roger Matus’ Death by Email gives yet another example of things that just should never be committed to writing.

But, the winner of the week is FailBlog, with maybe the worst idea ever to celebrate Disability Awareness Month.

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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.

Let’s all try to be a little more gracious

When my family and I flew to Florida last month, we met Jonathon and Amelia Sawyer and their kids in waiting area at the gate. Jonathon is the owner/chef at The Greenhouse Tavern, which Bon Appétit Magazine recently named one of the top 10 best new restaurants in America. We had a nice chat with the Sawyers, and we told them that we’d have to stop in their restaurant sometime since we’d never eaten there. That sometime was last Saturday, when my wife and I had a rare night out. Jonathon and Amelia could not have been more gracious, including a round of after-dinner drinks. Chef Sawyer even came out of the kitchen to say hello and personally thank us for stopping in. On top of everything, the food rated an A+.

If employers treated their employees with half of the degree of grace and hospitality  Jon and Amelia Sawyer gave me and my wife, I’d likely be out of a job. On second thought…

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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.

Can employers require flu shots for their employees?

As H1N1 becomes more widespread, and as the vaccine is beginning to become available, employers are beginning to require that their employees become vaccinated. The question, however, is whether such a practice is legal. According to one New York judge, the answer is that it may not be, at least when the directive comes from the state. That judge temporarily halted a New York State directive requiring that all health care workers be vaccinated for the seasonal flu and swine flu. Yet, as Kelly Brewington at the Baltimore Sun points out, many health care facilities are mandating that all employees receive the seasonal flu and H1N1 vaccines as a condition of their employment.

According to the EEOC, employers can compel all of its employees to take the influenza vaccine, with a couple of important exceptions:

An employee may be entitled to an exemption from a mandatory vaccination requirement based on an ADA disability that prevents him from taking the influenza vaccine. This would be a reasonable accommodation barring undue hardship (significant difficulty or expense). Similarly, under Title VII of the Civil Rights Act of 1964, once an employer receives notice that an employee’s sincerely held religious belief, practice, or observance prevents him from taking the influenza vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship as defined by Title VII (“more than de minimis cost” to the operation of the employer’s business, which is a lower standard than under the ADA).

At least as far as the EEO laws are concerned, private employers can require flu shots as long as you are willing to accommodate employees’ disabilities and religions. The New York case raises different issues because it was state-issued mandate (which raises constitutional privacy issues), as compared to a rule specific to a private workplace.

Do you know? Employment litigation expected to increase in 2010

The international law firm Fulbright & Jaworski has released its Fifth Annual Litigation Trends Survey and Highlights (available in full [PDF], or as an executive summary). The survey of 251 U.S. corporate law departments reveals some interesting trends that suggest that businesses of all sizes should increase their litigation coffers in the coming year.

• Labor and employment lawsuits are the most common type of litigation facing U.S. companies.

• More than half of in-house counsel surveyed felt that the pace of new lawsuits will at least remain stable, and 34% expect an increase in the coming year.

• With employment cases take up the largest portion of corporate dockets.

• Wage and hour lawsuits have the greatest spike in new filings. 19% of U.S. companies cited an increase in wage and hour cases in the past year.

• Moreover, nearly one-third of U.S. companies report an increase in multi-plaintiff or class action age and hour cases.

• Retailers appear to have the most exposure in the wage and hour arena: one-third of retail firms saw an increase in wage-and-hour litigation.

• After wage and hour, companies saw significant increases in five other areas of workplace litigation: discrimination suits, privacy claims, ERISA, disability claims, and age discrimination.

• Companies reported that race discrimination cases have the highest financial exposure, followed by sex discrimination; wage and hour, age discrimination, harassment, retaliation, disability discrimination, non-compete disputes, and FMLA violations.

What does all this data mean for your business? Your legal budgets will likely increase next year. The question you need to answer is whether you want those funds to pay to defend lawsuits, or to proactively audit your internal personnel and employment practices to limit your litigation costs?

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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.

Employee dress and grooming standards

One of my familial responsibilities is the weekly grocery shopping. As is my Sunday custom, I made my way to the local supermarket yesterday afternoon. The trip proceeded as it does every week – until I got to the front of the checkout line. I was greeted by what can only be described as a mess for a cashier. She was large in stature, but that wasn’t her problem. Partly covering her girth was a dirty t-shirt that resembled a piece of deli counter Swiss cheese. Her rolls showed through the holes in her shirt. And, as if the appearance wasn’t bad enough, she emitted an odor that suggested that she could not tell me on what aisle I could find the soap. As I wondered whether to hold my breath or ditch my cart, I decided to write on employee dress and grooming standards.

An employer has the right to require that its employees follow reasonable workplace appearance, grooming, and dress standards. If an employee runs afoul of such a rule, under most circumstances the employer can appropriately discipline the employee. This general rule, however, is sometimes limited by EEO laws:

• The best practice is a gender-neutral dress and grooming standard. An employer may impose a different standard on men and women, but only if neither gender is disproportionately burdened by the gender-specific rule. If you choose to impose a non-neutral policy, it is best to ensure that it is motivated by a legitimate business interest and is not intended to favor one gender over another.

• Transgendered employees pose a particular problem for employers. A dress or grooming rule that discriminates against an employee for failing to adhere to a sex-based stereotype may run afoul of Title VII.

• If an employee dresses or grooms a particular way because of a sincerely held religious belief, an employer may have to accommodate the employee unless the accommodation would cause an undue hardship.

As with all employment rules, it is best to have an employment lawyer review your policy before you roll it out to 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.

WIRTW #99

Apparently, today is National Boss Day. According to Wikipedia, a State Farm Insurance Company secretary started this recognition in 1958 when she forgot that her boss’s birthday was October 16. The Business of Management thinks this “holiday” is senseless. I agree.

Jason Shinn’s Defending the Digital Workplace highlights the importance of having a written e-mail policy in your company.

Philip Miles’s Lawffice Space discusses accommodating Seasonal Affective Disorder under the recently amended ADA.

The Word on Employment Law with John Phillips thinks we swear too much at work.

Richard Kass at the New York Labor & Employment Law Report shares some best practices on how to question employees suspected of workplace misconduct.

Mary Keating’s Maryland Employment Law Developments discloses the hidden discrimination in using credit reports to evaluation job applicants.

Kris Dunn, The HR Capitalist, on non-compete agreements and a dispute between Starbucks and Dunkin' Donuts.

William Bowser at the Delaware Employment Law Blog draws 5 tips on employee recognition from President Obama’s Nobel Prize.

Denise Cline at The HR Briefcase writes about how to handle employee absences for the swine flu.

Jessica Chappell at the KnowHR Blog takes a tongue-in-cheek look at appropriate versus inappropriate workplace attire.

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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 check on your employees’ absences?

According to a recent survey conducted by careerbuilder.com, 32% of employees report that they played hooky from work at least one day last year when they were not ill. In those one-third of employees, the following reasons were cited:

• Because they just didn’t feel like going to work that day (32%)
• Doctors appointments (31%)
• Relaxation (28%)
• To catch up on sleep (16%)
• Personal errands (13%)
• Something work-related, such as missing a meeting or needing more time to complete a project (12%)
• Housework (10%)
• To spend time with family and friends (10%)

When asked for the most bizarre excuses given by employees for missing work, employers listed the following:

• I got sunburned at a nude beach and can’t wear clothes.
• I woke up in Canada.
• I got caught selling an alligator.
• My buddies locked me in the trunk of an abandoned car after a weekend of drinking.
• I accidentally hit a nun with my motorcycle.

Despite all this data, only 29% of employers reported that they checked up on an absent employee, and only 15% said they have fired a worker for missing work without a legitimate excuse.

To my readers: Do you check on absent employees? Do you discipline or terminate employees for illegitimate absences? Or, do you think that employees are entitled to a certain number of mental health or personal days each year?

The logical answer to all of these issues – paid time off, instead of sick days.

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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.

Textual harassment

While no one will ever confuse the New York Post with high journalism, Monday’s edition has a thoughtful piece by reporter Brian Moore on what has become known as “textual harassment.”

Digital technology has enabled workers to be more productive, allowed them to communicate around the world instantaneously and generally redefined almost every job description on Earth.

But it’s also given cubicle creeps and departmental degenerates new ways to sexually harass co-workers and underlings.

While texting, e-mails and comments on social media sites will never replace the grand tradition of bosses directly pressuring subordinates for sex, lawyers and consultants say digital communication has opened up a new front in the war against workplace harassment.

Textual harassment isn’t necessarily new – harassment is harassment. What is new, however, is the media used to deliver the harassing messages. Today, harassing messages can be delivered instantly to an target via cell phone, instant message, Facebook wall, twitter tweets, and other on-line and other digital media. And, these new media provide companies a new weapon in combating workplace harassment. Where harassment cases often used to be instances of “he said/she said,” textual harassment” leaves a digital paper trail of the alleged transgressions. Because of the digital trail, the investigations of these types of harassment claims are often less complex and the corrective action easier to decide.

[Hat tip: Neil Klingshirn]

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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? Crisis Management

The front page of today’s USA Today’s sports section has a story covering the scandal that has plagued my alma mater (Binghamton University) and its basketball program. During my career I have been involved in my share of cases that have, for one reason or another, garnered some attention from the media. My advice to companies that find themselves in the media spotlight – hire a public relations firm to professionally handle the media.

Here’s what we know about the problems at Binghamton from the story:

• In a quest to make the basketball program successful in a short amount of time, the coach recruited kids with suspect backgrounds, but whom he wanted to give a second chance.
• The school has kicked six players off the basketball team, five for undisclosed violations and the other following his indictment on drug charges.
• The school is embarrassed, the basketball program is in shambles, and its league and others are questioning the price being paid for Division I athletic success.

The articles quotes criticisms from alumni, other schools, and other conferences. And the school’s non-response: “Binghamton president Lois DeFleur declined to comment through an aide, as did [Coach] Broadus, interim athletics director Jim Norris and former AD Joel Thirer, a tenured professor who will move in the short term to the university provost’s office.” While I understand the need for discretion during an internal investigation, the school should have had some response prepared, even if it’s merely something like, “The University is committed to running its athletic program in accordance with all NCAA rules and guidelines, and following its internal investigation will take appropriate corrective action, if necessary, consistent with those rules and guidelines.” Simple, to the point, and most importantly, non-incriminating. 

The next time your business finds itself in the unwanted glare of the media spotlight, consider bringing in a media expert to help manage the crisis, deflect the attention, and prepare an appropriate response.

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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.

Are Australian race relations that much different than ours? Assessing the Jackson Jive

Watching the following video – which comes courtesy of Australia’s take on The Gong Show – makes you realize either how far we’ve come with race relations in this country or how far others still have to travel. Either way, it’s a stark reminder of the types of racial stereotypes (intentionally offensive or not) that you should avoid like the plague in your workplace.

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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 #98

Earlier this week I suggested 10 reasons why you shouldn’t date at work. Some of my fellow bloggers share their own thoughts on the David Letterman situation:

• Mark Toth’s Manpower Employment Blawg: Lessons from Letterman.
• Kris Dunn, The HR Capitalist: Dudes: Office Hook Up = Lifetime Threat of Being Leveraged.
• The Word on Employment Law with John Phillips: Letterman Gets Serious, Offers Defense.

In other news this week, On Point News reports that Playboy has settled a sexual harassment lawsuit brought by one of its former producers. If there was ever a place for an assumption of the risk defense in employment cases…

Nick Fishman, at the employeescreenIQ Blog, takes on diploma mills.

Sindy Warren, at the Warren & Hays Blog, offers some information on maternity leave under Ohio law. For my thoughts on this issue, take a look at Maternity leave issues continue to confound employers.

Workplace Horizons spots a potentially dangerous trend – tacking on civil RICO (racketeering) claims to wage and hour lawsuits.

Tim Eavenson, at Current Employment, draws some lessons on trade secrets from watching Sunday Night Football.

Rush Nigut’s Rush on Business shares how your child’s social networking can adversely affect your employment.

Michael Maslanka’s Work Matters thinks that “regarded as” disability claims will make a big comeback under the recently amended ADA.

Michael Haberman’s HR Observations examines some litigation recently filed by the EEOC and concludes that the agency may be targeting employer policies that arbitrarily try to limit the duration of employee medical leaves.

Molly DiBianca, at the Delaware Employment Law Blog, offers some good tips on how go about starting a social networking policy.

Patrick Smith, at the Iowa Employment Law Blog, reminds us of the dangers of retaliation.

Finally, Michael Fox, at Jottings by an Employer’s Lawyer, discusses an employment lawsuit that still has not ended after a 12 year trip through the court system.

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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.

Companies are banning social networking. Should you?

According to a recent survey by Robert Half Technology (courtesy of Tresa Baldas at law.com), more than half of employers completely prohibit their employees from visiting social networking sites during working time. The complete results are as follows:

	Prohibited completely	54%
	Permitted for business purposes only	19%
	Permitted for limited personal use	16%
	Permitted for any type of personal use	10%
	Don’t know/no answer	1%

I’ve been answering a lot of questions lately on social networking. It does not seem realistic to totally ban all social networking at work. To effectively implement a total prohibition you must either turn off internet access, install software to block certain sites, or monitor employees’ use and discipline offenders. These options, though, stifle business-related productivity, are expensive, or are time consuming. Do you really want all employees not to be able to access the internet for any purpose? Do you have the manpower to dedicate to around-the-clock monitoring of employees’ online activity?

The better option is to allow limited personal social networking during business hours. If you treat employees respectfully and professionally, in most cases they will return the courtesy. This is not to suggest that you act naively. You also need to have a social networking policy to cover those circumstances when employees abuse the privilege through excessive use or inappropriate postings. For more on drafting a social networking policy, read Drafting a social networking policy: 7 considerations.

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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.

Top 10 reasons not to date at work

By now, you’ve likely heard about David Letterman’s workplace trysts, the resulting blackmail, and his public embarrassment. In homage to Mr. Letterman’s place in the workplace shame hall of fame, I present the top 10 reasons why you shouldn’t date a workplace subordinate (drum roll please):

10. Love contracts.

9. Extortion and blackmail attempts.

8. Those uncomfortable conversations with HR and company attorneys explaining your love life.

7. Describing your private affairs in a deposition or, worse, to a jury.

6. Being the focus of office gossip.

5. Conflicts of interest.

4. The loss of respect from your co-workers and other subordinates.

3. Facing termination for not disclosing your romance.

2. Those pesky harassment and retaliation lawsuits when someone other than your paramour gets passed over for a promotion, fired, or otherwise thinks you are playing favorites.

1. Those pesky harassment or retaliation lawsuits by your ex when the relationship goes south.

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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? Wage and hour recordkeeping

The Fair Labor Standards Act sets certain requirements for what records an employer covered by the Act must keep. For non-exempt employees, an employer must maintain the following records:

1. Employee’s full name and social security number.
2. Address, including zip code.
3. Birth date, if younger than 19.
4. Sex and occupation.
5. Time and day of week when employee’s workweek begins.
6. Hours worked each day.
7. Total hours worked each workweek.
8. Basis on which employee’s wages are paid (e.g., “$9 per hour”, “$440 a week”, “piecework”)
9. Regular hourly pay rate.
10. Total daily or weekly straight-time earnings.
11. Total overtime earnings for the workweek.
12. All additions to or deductions from the employee’s wages.
13. Total wages paid each pay period.
14. Date of payment and the pay period covered by the payment.

For exempt employees, employers must keep the records for 1 – 5 and 13 – 14. Additionally, for exempt employees employers must also keep a record of the basis on which wages are paid in sufficient detail to permit calculation for each pay period of the employee’s total compensation.

Payroll records must be kept for three years. Records on which wage computations are based – time cards, wage rate tables, work and time schedules, and records of additions to or deductions from wages – must be kept for two years.

There is no particular form in which the records must be kept, as long as they are maintained and are available for inspection at the request of the Department of Labor.

Ohio has its own recordkeeping requirements, but as long as an employer is compliance with the federal standards should keep an employer compliant with Ohio’s standards.

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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.

What my vacation can teach you

I just returned from 8 days at Disney World. I’ve been trying to draw a great HR or employment law lesson from my trip to share with my readers. This is what I’ve come up with.

Everyone at Disney is happy. But it does not seem to be forced corporate happiness. It’s simply part of the culture. You may think, “If I got to go to work everyday with Mickey Mouse and Cinderella I’d be happy too.” I agree that part of the happiness has to do with the environment. But, I don’t think it’s necessarily the Florida sun or seeing Mickey that caused a janitor to stop, get down on his knees, and talk to my 14-month-old son until he got a smile.

I know your manufacturing plant isn’t the Magic Kingdom. But, it doesn’t mean that you can’t strive to find the key to your employees’ happiness. Happy employees work harder, complain less, and are more productive. Maybe it’s a bonus program, maybe it’s a randomly catered lunch, maybe it’s a manager giving a heart-felt thank you for a job well done. Whatever it is, you should search for that bit of magic that will make your employees happy and want to come to work everyday. The return you will receive will be greater than whatever the cost in time or money.

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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.

Best of… Employment audits

Study of American working conditions presents opportunity for employers to tune up legal compliance.

Announcing KJK’s Proprietary HR and Employment Law Audit.

Best of… Employee appreciation

A short rant, and a lesson on employee appreciation.

Best of… Drafting a social networking policy

Drafting a social networking policy: 7 considerations.

Best of… Avoiding employment lawsuits

6 tips to avoid an employment lawsuit.