Smoking as a disability redux

It takes a big man to admit when he’s wrong. I’m about to be a big man.

A little over a year ago I engaged in a debate with Michael Moore of the Pennsylvania Labor & Employment Blog about whether the ADA Amendments Act would protect nicotine addiction as a disability. At the time, I wrote as follows:

Whether or not something is a disability with or without remedial measures, however, is only one step in the analysis. The next step is to determine whether that disability “materially restricts” (using the language of the ADAAA) a major life activity. What major life activity does smoking or nicotine addiction materially restrict? Breathing? Maybe, but only if one’s lungs are compromised from years of smoking. At that point, a bronchial disease might qualify as a disability, but how will allowing employees to smoke reasonably accommodate that disability? If anything, an employer’s anti-smoking initiatives present a better accommodation for an employee’s breathing problems.

After reviewing the proposed regulations implementing the ADAAA, I have changed my opinion. I now believe that the ADA can protect an employee’s nicotine addiction, but for different reasons than I previously discussed.

The ADA does not just protect employees’ disabilities, but also protects employees who are “regarded as” having a physical or mental impairment. Critically, an employee is now protected under the “regarded as” prong regardless of whether or not the impairment limits or is perceived to limit a major life activity, and regardless of whether the employer believes the individual was substantially limited in any major life activity. The coverage of this protection is extremely broad. The only exception to the “regarded as” prong is when the impairment is transitory (lasting or expected to last for six months or less) and minor. Examples of such uncovered impairments include a sprained wrist, a broken limb that is expected to heal, the common cold, and the seasonal flu. Employers do not have to make reasonable accommodations for “regarded as” disabilities, but are still prohibited from taking adverse actions because of them.

At the ABA Labor & Employment Conference last week, I had the opportunity to ask Peggy Mastroianni, EEOC Associate Legal Counsel and author of the ADAAA’s proposed regulations, if the EEOC has a position on the coverage of smoking under the ADA. Her answer was that there is no formal EEOC position. The EEOC’s silence notwithstanding, the “regarded as” prong of the new ADA is sufficiently broad to possibly encompass actions taken against employees pursuant to employer anti-smoking policies.

What does all of this mean for employers? Employees can claim that anti-smoking policies violate the ADA. Addiction is a protected disability. Diseases related to or caused by smoking (cancers, lung diseases, asthma, and other respiratory conditions, for example) are also protected disabilities. Employees will claim that an adverse action taken pursuant to an anti-smoking policy is being taken because the employer regards the employee as disabled. Adverse actions taken against employees because of smoking should now be viewed as high risk, at least until courts begin weighing in on this controversial issue.

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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 #103

The Ft. Hood tragedy dominated the news and the blogs this week. The Word on Employment Law with John Phillips shares his thought on workplace violence, and Sindy Warren, at the Warren & Hays Blog, reminds employers that national origin discrimination is illegal, even when an employee fits a particular profile.

This week also brought some interesting news about age discrimination. Mary Keating’s Maryland Employment Law Developments comments on a recent New York Times op ed debating whether age claims have second-class status to other forms of discrimination. Philip Miles, on his Lawffice Space blog, is shocked that in this down economy, the EEOC is poised to release statistics that the number of age charges filed in 2009 has fallen by 7%.

Happy 40th birthday Sesame Street. Two lawyers who have done work for the Sesame Workshop and other Jim Henson entities share their memories with Zach Lowe at the American Lawyer.

Jonathan Segal, writing at BusinessWeek.com, shares his top 10 things not to say while firing an employee.

Paul Secunda, at the Workplace Prof Blog, discusses the Employment Non-Discrimination Act – banning sexual orientation discrimination – being a “top priority” for the Obama administration.

LaborPains shares how the SEIU teaches its members to talk about the Employee Free Choice Act.

The Washington DC Employment Law Update links to OSHA’s recently published H1N1 guidance website.

Workplace Investigations, on what makes an investigation thorough.

Workplace Horizons reports that Congress is considering extending COBRA coverage and the premium subsidy.

The Overtime Advisor reminds employers that private employers usually cannot use the services of unpaid volunteers. For my thoughts on the issue of when private employers can get away with not paying a volunteer, see Do you know? Unpaid internships.

Kris Dunn, The HR Capitalist, thinks that if you use profanity at work you should think twice before you file that lawsuit claiming you were offended by others’ workplace shenanigans.

Dennis Westlind, at World of Work, reports that that the EEOC’s ability to issue subpoenas after it has issued a right to sue letter has been upheld.

Bob Sutton thinks that there are 21 things that great bosses do.

The Evil HR Lady offers some advice to a retiring employee seeking severance.

Finally, the Email FAIL Blog has yet another example of why people need to be careful before clicking the send button (link is SFW, but its click-thru might not be).

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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.

Googling job applicants

According a prediction by Dan Schawbel at the Personal Branding Blog (courtesy of FYIscreening.com), by 2012 100% of companies will be conducting informal on-line background checks of job candidates. This prediction dovetails the following comment from one of the presenters during the ABA’s Labor & Employment Conference, discussing this very issue, “Would you date someone without Googling them first?” His point is a valid one. A hiring decision deserves at least the same minimum level of scrutiny and diligence as a first date.

Informal background checks are subject to a lot of debate in the background screening industry. There is a justified fear that a lot of the information on the internet is unreliable and unverifiable. I have another problem with HR departments willy-nilly performing internet searches on job applicants – the risk that such a search will disclose protected information such as age, sex, race, or medical information.

Consider the following example. Jane Doe submits a job application to ABC Corp. ABC’s HR department, before even deciding whether to interview Ms. Doe, types her name into Google. What happens if a breast cancer survivor group pops up? If ABC declines to interview Ms. Doe, do you think it would be opening itself up to a claim that it failed to hire her because it regarded her as disabled?

Despite these risks, internet searches have some real value for employers. They just have be done carefully and with certain built-in protections:

1. Consult with your employment attorney to develop policies, procedures, and guidelines for the gathering and use of internet-based information without running afoul of EEO and other laws.
2. Print a clear disclaimer on the job application that you may conduct an internet search, including sites such as Facebook, MySpace, and LinkedIn, and general searches using search engines such as Google and Bing.
3. Only conduct the search after a candidate has been made a conditional job offer.
4. Consider using a third-party to do the searching, with instructions that any sensitive, protected, or EEO information not be disclosed back to you.
5. Do not limit yourself to internet searches as the only form of background screening.

The internet holds a wealth of information about potential employees. Be careful in how your hirers and recruiters handle this tool to avoid stepping in a big EEO trap.

Can social networking affect trade secrets?

Do you want to try to protect your customer list as a trade secret? Then you better think about limiting your employees’ use of social networks like Facebook, LinkedIn, and Twitter for businesses purposes. One of the key elements in any trade secret claim is the efforts taken to maintain the secrecy. It will that much harder to claim that the identity of a customer is a “secret” if your employees are publicly communicating with your customers via social networks for the whole world to see.

For more on social networking and its implications for your workplace, see 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.

Do you know? Garden leave contracts

Last week I attended the ABA’s Labor & Employment Conference. Over the next several weeks, I’ll be sharing with my readers some of the best and most interesting nuggets of information I took away from the meeting. We start today with garden leave contracts.

There is nothing more frustrating for a company than a court refusing to enforce a noncompetition agreement, permitting an employee to work for a competitor. Courts have been historically skeptical about the enforcement of such agreements. In today’s economy it has become even more difficult to enforce them. Judges simply do not want to enjoin a family’s breadwinner from working. At best, the enforcement of even the most narrowly drafted noncompetition agreement is a roll of the dice, dependent as much upon the personal whims of the judge hearing the case as the law of your specific jurisdiction.

So, how do you protect your employees, confidential information, customers, and good will without using a suspect noncompetition agreement? Think about using a garden leave contract.

The concept of “garden leave” originated in the UK. It describes the practice of an employer paying an employee to stay on the sidelines during a set period of time following the end of their employment (the garden being where a UK employee would spend free time). A typical garden leave contract requires a lengthy advance notice of resignation, prohibits certain competitive activities during the notice period, and requires that the employee be sent home but still get paid his or her full salary and benefits during the notice period. Alternatively, employers can modify a traditional noncompetition agreement to provide pay during the employee’s time on the sidelines. The latter, however, carries greater risk as it would still be subject to the same analysis as a traditional noncompetition agreement, albeit with less impact on the employee.

Provided that an employee has enough value, garden leave clauses provide many of the same benefits as a traditional noncompetition agreement – the employer is provided time to replace the departing employee, delay competition by the departing employee, cultivate relationships with clients and customers, and maintain good will. Also, because the employee remains an employee during the paid notice period, concepts like the duty of loyalty (which prohibits solicitations of customers and other employees, as well as the misuse of confidential information) remain in place and protect the employer.

Consider garden leave contracts. They are cost effective, at least as compared to the price of enforcing a noncompetition agreement, and a potentially less risky avenue to obtain the same goals.

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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.

Paying off a bet – What I learned from watching the World Series

So the Yankees are the World Champs of baseball for 2009. I’ve been struggling with what to write for this post. Honestly, it never entered my mind that I would be the one paying off this bet. I assumed, even when the Phils were down 3-1, that they would win and Dan would be extolling their virtues. But, a bet is a bet, and I promised to write a post praising the Yankees, with an employment law bent, if they won the World Series.

So here’s the lesson that I can draw for you from this sad outcome. The team with the most resources doesn’t always win, but it doesn’t hurt to have the best hand to start with. With an uncapped salary system, the Yankees spend money as they see fit, with no limits. Thus, their payroll for their top three players eclipses that of the complete rosters of most of their major league counterparts. Yet, their superiority of resources is only part of their ability of success. After all, they’ve outspent everyone for as long as I can remember, and yet this is only their first title in the past 10 years. And so, while they always have the best chance to succeed (and always assume that they will), it doesn’t always work out that way for them. This year, for example, they appeared to come together as a team, and not just play as an amalgam of superstars, which perhaps accounts for why they succeeded this year and failed in the decade prior.

For employers, the lesson is this – in many cases, you will assume that you should win. You may have better facts, better law, more money and resources, the better lawyer, and you may even have had past successes and a good rapport with the same judge. And yet, with all of these supposed advantages on your side, you could still find yourself on the losing end of big verdict. Advantages are just that, but they do not bring home the win. Hard work, teamwork, and even a little bit of luck are all needed to take advantage of your advantages.

Here’s to a great World Series and the Phillies getting back to the top of the mountain in 2010.

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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 #102

I'm in Washington D.C. at the ABA's annual Labor & Employment Conference. Consequently, my post paying off my debt to Dan Schwartz genuflecting before the alter of the New York Yankees is delayed until Monday. In the meantime, enjoy the best of this week's posts from elsewhere around the web.

Thanks to Molly DiBianca for again including me in her yearly list of the top Employment Law Blogs. Her list (and her entire blog, for that matter) is an excellent resource for employers.

The U.S. Chamber of Commerce this week launched its Small Business Nation web portal. The Chamber describes it as a “community … founded on the open exchange of information and ideas, while creating the opportunity for small businesses to speak with a unified voice” to bring “together America’s small businesses” and “strengthen individual endeavors while amplifying the collective voice of business.” For my time, it’s best feature is its Toolkits, a bunch of informational mini-sites for small businesses. Spend 10 minutes clicking through the Employer Toolkit for general information on payroll, benefits, employment rules, and employee discipline and termination.

From Steven Greengrass at the New York Times – Lack of Paid Sick Days May Worsen Flu Pandemic. On the same topic, Dan Schwartz has info on recently introduced federal paid sick leave legislation.

Walter Olson’s Overlawyered reports on the ballsiest employment discrimination defendant of all time. And, he won.

World of Work offers some insight on how to avoid age discrimination.

Paul Secunda, at the Workplace Prof Blog, asks whether the EEOC is unfairly attacking employers.

The Word on Employment Law with John Phillips takes a look at David Letterman’s production company’s sexual harassment policy.

During the Bush administration, a two-member NLRB issues a lot of employer-friendly decisions. The Supreme Court had agreed to review the legality of those plurality decisions, as Michael Fox, at Jottings By An Employer’s Lawyer, reports.

Patrick Smith, at the Iowa Employment Law Blog, offers some timely information on what employers can do about H1N1.

Victoria Pynchon’s Settle It Now Negotiation Blog takes a look back to 1938, when it was legally to openly deny jobs to women because their gender.

The Washington DC Employment Law Update lists OSHA’s top 10 safety violations for 2009.

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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.

Context is key in employment cases

The Phillies stand on the precipice of elimination as they head into Game 6 tonight. And, if Pedro Martinez can turn back the clock 10 years for one more start, the Phils’s likely Game 7 starter, Cole Hamels, has some ’splainin’ to do. After the Game 4 loss, Hamels, who has failed to live up to the successes of his 2008 campaign, was quoted as follows: “I can't wait for it to end. It’s been mentally draining. It’s one of those things where, a year in, you just can’t wait for a fresh start.” What’s missing from all of the press coverage lambasting Cole for quitting on his team is that his quote was taken from a 20-minute interview in which he begged for the ball in game 7 to atone for his poor game 3 performance.

Folks, context is key. If we, as lawyers, are doing our jobs correctly, however, context is often missing, obscured, or spun beyond recognition. Take, for example, an age discrimination case in which an executive says, “I always take age into consideration when I make a personnel decision.” That’s a pretty damning statement for an employer. Yet, it’s easy to understand the harmlessness of that statement when it’s taken in context. Maybe that executive doesn’t intend any age-based animus, but, being 65 years old herself, equates age with experience and wants to make sure she hires the most experienced person. Thus, in the quest to testify honesty, she answered “yes” to a damning cross-examination question.

The problem for you, as an employer defending a discrimination lawsuit, is that you often will not have the opportunity to give the explanation and provide the context until much later in the case. The statement likely will be elicited during the plaintiff’s case through careful cross examination. You will not have the opportunity to rehabilitate that witness and have her explain the statement until you recall her as part of your case, likely several days or weeks later. By then, the damage is done. Employment cases often turn on one key fact. In an age case, such an admission by an executive can be that one key fact that results in a plaintiff’s verdict.

The lesson for you, the employer, is this – even the most innocuous statement, when taken out of context, can be perceived as a damning admission. When dealing with problem employees, we must carefully parse and choose our words. Those that are used carelessly will come back to haunt us, even if the intent means no harm.

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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? Promissory estoppel versus at-will employment

In Ohio, the default rule governing employment relationships is employment at-will. Under at-will employment, unless otherwise agreed, either the employer or the employee can terminate the employment relationship at any time and for any reason. Promissory estoppel is one exception to the general rule of at-will employment. It is defined as “a promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise.” In layman’s terms, if it is unfair or unjust to permit a party to back out of definite promise because of some reasonable action taken by the other party on that promise, then the court will enforce the promise like a contract. To prevail on a promissory estoppel claim, a plaintiff must show:

1. the existence of a clear and unambiguous promise
2. upon which one would reasonably and foreseeably rely, and
3. the plaintiff actually relied on the promise
4. to plaintiff’s detriment.

According to Ohio law, to overcome the presumption of at-will employment, the promise not only must be sufficiently clear and unambiguous, but also must promise continued employment for a specific period. An employee cannot rely upon promises of an indefinite duration, promises of any otherwise nebulous nature, or generalized representations about the employee’s job performance.

Even if you avoid promising employees jobs for a definite period of time, a terminated employee can still try to claim reliance on some other statement or promise. The best defense against an employee claiming promissory estoppel based on some oral statement made by a manager is a clearly worded disclaimer in an employee handbook. Disclaimers should cover the following issues:

• Setting forth that all employees are at-will;
• Describing what at-will employment means;
• Stating that no one has the authority to enter into any agreement altering that at will-relationship; and
• That is not reasonable for any employee to rely on any statement by anyone to the contrary.

With such a disclaimer signed by an employee, any reliance by that employee on any promise or statement will likely be found to be unreasonable.

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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.

Million dollar verdict underscores the dangers of retaliation claims

Antonia Susel claimed that her employer, Dix & Eaton, fired her after she alleged that her boss wanted to replace her with a man nearly half her age. Ms. Susel pursued numerous claims, included age and gender discrimination. Last week, a Cuyahoga County jury ruled in favor of Dix & Eaton on four of the five claims. The sole count on which Ms. Susel won – retaliation – brought with it a $1,032,000 verdict. Even though Dix & Eaton replaced Ms. Susel (age 59) by a 32-year-old man after she informed her boss that she did not intend to retire until age 66, the jury did not believe that her age or her gender motivated her termination. According to Ms. Susel’s attorneys (as reported by Olivera Perkins at cleveland.com), she was fired five months after she “went to the human resources manager … and said she felt she was being set up for a wrongful discharge because of her age.” That allegation netted her a $1 million verdict.

This verdict illustrates the risk posed by retaliation liability. No employee is bullet proof; merely lodging a complaint about discrimination does not guarantee a job-for-life. But, if you plan on firing an employee who has complained about discrimination or engaged in some other protected activity, make sure that you are protected by having performance problems or other legitimate grounds for the termination documented before the internal complaint.

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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 #101

Walter Olson’s Overlawyered brings us the most instructive story of the week – if a jury asks for a “ten-digit adding machine to assist in their deliberations,” the defendant best start thinking long and hard about settlement.

Molly DiBianca, at the Delaware Employment Law Blog, on a court’s rejection of a monkey as an ADA-qualifying service animal.

The Word on Employment Law with John Phillips uses last week’s two biggest news stories – balloon boy and the sleeping pilots – to teach a lesson on employee discipline.

Marcia McCormick, at the Workplace Prof Blog, discussing a case filed by a witch claiming religious discrimination.

Sindy Warren, at the Warren & Hays Blog, suggesting that managers and their employees should not be “Facebook friends.”

Michael Maslanka’s Work Matters gives some dos and don’ts for the ADA’s reasonable accommodation interactive process.

Kris Dunn, The HR Capitalist, thinks employers can learn a lot from how ESPN handled the Steve Phillips situation.

Dan Schwartz, at the Connecticut Employment Law Blog, on the Arbitration Fairness Act and its potential effect on the future of arbitration clauses in employment agreements and collective bargaining agreements.

Christopher McKinney’s HR Lawyer’s Blog discusses a lawsuit recently filed by the EEOC in which it is seeking protection under the ADA for a pregnancy-related condition.

Employment Law Matters cautions employers with a third shift that this weekend’s switch to standard time could result in having to pay an extra hour of work to employees caught in the change.

Mary Keating’s Maryland Employment Law Developments shows how a desire for a more “energetic” employee can be viewed as evidence of age discrimination.

Wage & Hour Counsel illustrates the more aggressive tactics being taken by the Obama Department of Labor in wage and hour cases.

Finally, BLR’s HR Daily Advisor relates 6 lessons of successful management drawn from a former Walt Disney World Executive.

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

New EEO poster required for all employers with 15 or More employees

Federal law requires all employers covered by the federal anti-discrimination laws (those with 15 or more employees) to post multilingual notices describing the federal laws against job discrimination. To account for two new laws – the Genetic Information Non-Discrimination Act and the ADA Amendments Act – the Equal Employment Opportunity Commission has updated its mandatory posting. Employers have two options to comply with this new requirement, both of which are available on the EEOC’s website at www.eeoc.gov/posterform.html:

1. Print out and post a supplement to their existing “EEO is the Law”; or
2. Print and post the EEOC new poster.

Alternatively, employers can order up to 10 copies of the poster, free of charge, from the same EEOC site linked above. If you need more than 10 copies, that same website has the address and phone number of the EEOC Clearinghouse to contact.

The new posting is mandatory effective November 21, 2009.

[Hat tip: World of Work]

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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.

World Series wager – the response

Dan Schwartz’s response to my post from this morning discussing our friendly wager: Revisiting Derek Jeter’s Contract and a World Series Challenge. Dan correctly brings up yet another reason to root for the Phils – 10,000 losses vs. 26 World Series wins. We might be the defending champs, but we are definitely the underdog, and who doesn’t love an underdog?

A World Series wager

Anyone who knows me or who’s been a faithful reader knows that I grew up in Philly and avidly root for all of its teams. Fellow employment law blogger Dan Schwartz (of the Connecticut Employment Law Blog) has a similar affection for his New York teams. For our two blogs, tonight’s World Series is the perfect storm, which has led to the following wager – the loser has to write a post on his blog praising the winning team (with an employment law spin, of course).

Other than reading Dan’s praise of the Phillies, here are 5 reasons to root for the Fightins’:

1. Win one for Harry: If you wonder why the Phillies are wearing an “HK” patch on their uniforms, it’s for Harry Kalas. Harry the K was the long-time beloved and revered Phillies Hall of Fame broadcaster who died at the beginning of the season. If you’re not from Philly, you probably know him better as the baritone yet lilted voice of NFL Films. He’s also noted for his stirring renditions of the Sinatra classic High Hopes, which the Phillies now play in his honor after home wins.

2. Blue collar versus white collar: The Phillies personify Philly’s hard-working, blue collar attitude, and work hard for everything they have. The Yankees are effete spoiled rich kids playing in their new $1.5 billion dollar playground, and are expected to succeed because of how much money they spend. Who do you better relate to?

3. Charlie Manual: Cleveland ran him out of town because he talks like a bumpkin who doesn’t know what he’s doing. As it turns out, he’s forgotten more about baseball than most know. He’s one of the genuinely good guys in sports. A second ring would likely punch his ticket to Cooperstown and seal his legacy.

4. Steroids: These are two of the most potent offenses ever to match up in a World Series. But, only one lineup has a star player who’s admitted to using performance enhancers. The Phillies sluggers have always done it naturally.

5. The evil empire factor: The Yankees? Again? Really? It’s like rooting for the Third Reich to win WWII. Sure, the Germans were rooting for their home team, but was anyone else?

Dan, my readers and I look forward to what you have to say about the Phillies after the series is over.

Meanwhile, try not to get a little misty while Harry the K serenades a 2008 playoff pep rally with High Hopes.

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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.

FMLA’s military leave provisions to be amended today

When President Obama signs the National Defense Authorization Act of 2010 this afternoon, he will make some key changes to how the FMLA covers military leave. Carl Bosland at the FMLA Blog summarizes the details, which expand the coverage and availability of military family leave. The Act’s changes include:

• Expanding military caregiver leave to veterans, by extending the 26 weeks of FMLA leave to family members of veterans to cover illnesses or injuries for up to 5 years after a veteran leaves active duty.

• Expanding qualifying exigency leave to cover eligible family members of active-duty service members, and not just family members of those called up to the National Guard or Reserves.

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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? Handling employees with suspected swine flu

The President has officially declared H1N1 a national emergency. Hyperbole aside, it is estimated that as many as 60% of the U.S. population will contract the H1N1 virus this flu season. If these numbers are even close to being correct, then it is almost guaranteed that the swine flu will impact your workplace. The CDC offers the following 10 tips for handling H1N1 in your workplace:

1. Develop policies that encourage ill workers to stay at home without fear of any reprisals.

2. Develop other flexible policies to allow workers to telework (if feasible) and create other leave policies to allow workers to stay home to care for sick family members or care for children if schools close.

3. Provide resources and a work environment that promotes personal hygiene. For example, provide tissues, no-touch trash cans, hand soap, hand sanitizer, disinfectants and disposable towels for workers to clean their work surfaces.

4. Provide education and training materials in an easy to understand format and in the appropriate language and literacy level for all employees.

5. Instruct employees who are well but who have an ill family member at home with the flu that they can go to work as usual. These employees should monitor their health every day, and notify their supervisor and stay home if they become ill. Employees who have a certain underlying medical condition or who are pregnant should promptly call their health care provider for advice if they become ill.

6. Encourage workers to obtain a seasonal influenza vaccine, if it is appropriate for them according to CDC recommendations. This helps to prevent illness from seasonal influenza strains that may circulate at the same time as the 2009 H1N1 flu.

7. Encourage employees to get the 2009 H1N1 vaccine when it becomes available if they are in a priority group according to CDC recommendations. Consider granting employees time off from work to get vaccinated when the vaccine is available in your community.

8. Provide workers with up-to-date information on influenza risk factors, protective behaviors, and instruction on proper behaviors (for example, cough etiquette; avoid touching eyes, nose and mouth; and hand hygiene).

9. Plan to implement practices to minimize face-to-face contact between workers if advised by the local health department. Consider the use of such strategies as extended use of email, websites and teleconferences, encouraging flexible work arrangements (for example, telecommuting or flexible work hours) to reduce the number of workers who must be at the work site at the same time or in one specific location.

10. If an employee does become sick while at work, place the employee in a separate room or area until they can go home, away from other workers. If the employee needs to go into a common area prior to leaving, he or she should cover coughs/sneezes with a tissue or wear a facemask if available and tolerable. Ask the employee to go home as soon as possible.

For other information on dealing with H1N1 in your workplace, flu.gov has a wealth of resources, including a small business guide, a communication toolkit, guidance from the EEOC, and a business pandemic planning checklist.

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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.

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.