Golfer tests limits of ADA and performance enhancing drugs

Last month, Doug Barron became the first golfer suspended by the PGA for failing a drug test. Shortly thereafter, he sued the PGA, claiming that his suspension violated the ADA. Specifically, he claimed that the PGA failed to accommodate his use of medications –  beta blockers to treat a heart condition and synthetic male hormone to treat a low testosterone count.

According to CNN.com, a federal magistrate has preliminarily rejected Barron’s claim that his low testosterone level qualifies as a disability protected by the ADA. Under the amended ADA, major life activities include “the operation of major bodily functions, including … reproductive functions.” Likely, a low testosterone count qualifies an ADA-protected disability. Thus, I would argue that a low testosterone count actually does qualify as a protected disability.

Under the new ADA, however, the issue of what qualifies as a disability will seldom be litigated. Most physical and mental impairments will qualify as disabilities. Instead, the focus of the inquiry in disability discrimination litigation will be whether the employee is qualified – whether he or she can perform the essential functions of the job with or without reasonable accommodation.

On the issue of drug testing in professional sports, I would argue that it is essential that all athletes perform on the same level without artificial enhancement. For instance, testosterone promotes muscle mass and strength and beta blockers reduce anxiety and sharpen focus. Thus, I would argue that whether an athlete’s condition qualifies as a disability is irrelevant, because he or she cannot perform there is no accommodation that would allow the taking of performance enhancers (even if used medicinally).

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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 #106

Workplace Technology Issues

• On whether emails sent by an employee to his or her attorney using an employer’s email system is protected by the attorney client privilege – compare Howard Bashman’s How Appealing to Electronic Discovery Law.

• The $1-Million Email Suit, courtesy of Roger Matus’ Death By Email.

• Sample Social-Media Guidelines, complied by Molly DiBianca at the Delaware Employment Law Blog.

• Defeating Liability For Employees' Off-Duty Internet Activity, from Workplace Privacy Counsel.

In the News

• New GAO Report on Civil Rights Enforcement During the Prior Administration, by Marcia McCormick at the Workplace Prof Blog.

• Tiger by the Tail: Employment Lessons? – via The Word on Employment Law with John Phillips.

• Employment Law Backlash, from Philip Miles’s Lawffice Space.

Wage & Hour & Benefits

• DOL Agrees: With Intermittent Leave, Enough Is Enough, from BLR’s HR Daily Advisor.

• Wanna Know a Secret? U.S. Department of Labor Updates Free Guide on Laws for Employers, by Dan Schwartz at the Connecticut Employment Law Blog.

• COBRA Subsidy Likely To Expand - Proposed Legislation Would Extend and Expand Subsidy for Former Employees, via Hunton Employment & Labor Perspectives.

• Learned Professionals-Employers Take Care, by the Overtime Advisor.

• Does your return-to-work policy run afoul of the ADA? – from Sindy Warren at the Warren & Hays Blog.

Office Holiday Parties

• Top 5 Holiday Party Tips, crafted by Mark Toth’s Manpower Employment Blawg.

• 20 Tips for Your Workplace Holiday Non-Party, from U.S. News & World Report.

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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 Christmas closings discriminatory?

HR Review, a British HR website, asks the following question: “Is closing office for  Christmas ‘indirect discrimination’?” For example, would anyone doubt the discriminatory nature of a policy that offers maternity leave to new moms but denies the same to new dads? Yet, no one bats an eye when a business shuts down, with pay, for Christmas, but requires its Jewish employees to use a vacation day if they want to be paid to stay home on Yom Kippur.

I have two thoughts:

1. This question does not compare apples to apples. Businesses offer designated paid holidays as a benefit to employees. Some are religious and some are not. If a business remained open on Christmas (a hospital, for example) and gave its Christian employees the day off with pay and without requiring the use of a vacation day, employees of other faiths would have a legitimate complaint. But, granting a paid day off to all employees as a benefit is simply not a fair comparison.

2. An employer does not have to make a religious accommodation if it imposes an undue hardship. In religious discrimination cases, undue hardship is a low standard – anything more than a de minimus cost or burden. The possible accommodation – being paid for a religious holiday without using a vacation day – would impose an undue hardship. An employee should not expect to receive what would amount to an extra paid vacation day just because of a religious affiliation.

Everyone enjoy your day off in a few weeks.

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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.

Cleveland bans discrimination based on gender identity and expression

Cleveland’s city ordinances already prohibit employment discrimination based on sexual orientation. As of this week, you can add “gender identity and expression” to Cleveland’s expansive list of protected classes. Violations carry a potential $1,000 fine and 30-day jail sentence.

Cleveland’s ordinance may be foreshadowing of broader state and federal legislation, both of which would grant protected status for sexual orientation and gender identity:

• Ohio House passes bill banning sexual orientation discrimination; fight moves to Senate
• Do you know? Sexual orientation and gender identity discrimination
• ENDA Now “Top Priority” for Obama Administration (courtesy of Paul Secunda at the Workplace Prof Blog)

For now, if you are an employer located in the City of Cleveland, at a minimum you should amend your EEO and anti-discrimination policies to cover gender identity.

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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? Opposing counsel may have access to your employees during litigation

Businesses often think that once litigation is filed, their employees are off limits to the other side, absent a deposition subpoena. After all, conventional wisdom teaches that it is unethical for an attorney to communicate with someone known to be represented by an attorney without the other attorney’s consent. At least in Ohio, however, such thinking is incorrect and can lead to disastrous results.

According to Advisory Opinion 2005-03 [DOC], an opposing party is only prohibited from speaking to a small fraction of a business’s current employees. 

Communications with Current Employees

• Opposing counsel is only prohibited from communicating with corporate employees who supervise, direct or regularly consult with the corporation’s lawyer concerning the matter, or has authority to obligate the corporation with respect to the matter, or whose act or omission in connection with the matter may be imputed to the corporation for purposes of civil or criminal liability.

• Opposing counsel may always communicate without the consent of a corporation’s lawyer with any other current employees.

Communications with Former Employees

• Opposing counsel may communicate with any former employees of the corporation without notification or consent of corporate counsel.

• An attorney may not, however, communicate if a former employee is represented by his or her own counsel in the matter, or if a former employee has asked the corporation’s counsel to provide representation in the matter.

Thus, the only employees to whom an opposing attorney absolutely cannot speak are current employees whose actions can bind the company or who are actively involved in the litigation decision making. All other employees – past and present – are fair game.

Further, businesses could find themselves defending an offshoot retaliation claim if they try to interfere with an employee who wants to talk to or assist the other side.

Next Tuesday we’ll look at Federal Rule of Civil Procedure 26(b)(3)(C), which gives employers some protections via the discovery of witness statements.

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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.

Court orders forensic examinations of defendant's hard drives to remedy discovery abuses

Although it's hard to tell from the opinion, it’s safe to assume that Bennett v. Martin (Ohio Ct. App. 11/24/09) [PDF] started out like any other run of the mill discrimination lawsuit. Then, the defendant started playing hide the ball in discovery, which, after lots of motions, led to the trial court ordering the forensic imaging of the employer’s hard drives to confirm or deny the existence of certain documents. Bennett is an excellent lesson in what can go wrong in litigation, and I commend it to your reading so that you can see how garden variety discovery disputes can quickly escalate and consume an entire case.

The bottom line for employers (and really any litigant) – pick your battles. If the court thinks you’re being dishonest with your opponent, it will give the other side latitude to figure it out. If the court thinks you’re being dishonest with it (as was the case in Bennett), then all bets are off.

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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 #105

I broken this week’s post holiday review into categories. I figured I’d make it easier for everyone to follow in their post-Turkey and pumpkin pie haze.

Technology in the Workplace

• Larry Johnson: A Twitter Termination – courtesy of Molly DiBianca at the Delaware Employment Law Blog.

• Social Networks and Employment Law: Are you Putting your Organization at Risk? [PDF] – by Peopleclick.

• Employee Privacy: What’s Your Policy? – from Sindy Warren at the Warren & Hays Blog.

• LinkedIn Recommendations - A Hot Topic Among HR Professionals, But Should It Be? – by Dan Schwartz at the Connecticut Employment Law Blog. I wrote on this issue over the summer, and have an opinion very different from Dan’s.

• Discriminatory Twist in Networking Sites Puts Recruiters in Peril – by Workforce Management.

• Fake Job Reference Services Add New Wrinkle to Screening – by Jason Morris at the IQ Blog.

Religious Discrimination

• Dress Code v. Religious Beliefs: Who wins? – via Debra Reilly’s Workplace Investigations.

• When faith collides with fashion – from Michael Maslanka’s Work Matters.

• I’ve also previously given my thoughts on this issue – Religious accommodation versus public image.

Sexual Harassment

• How Can a Sexual Harassment Investigator Tell if the Alleged Conduct was Unwelcome? and Choose Wisely When Using an Employee to Conduct Your Workplace Investigation – both from Debra Reilly’s Workplace Investigations.

• Virtual Harassment: When Online Behavior Becomes a Real-World Problem – by Brian Molinari at the Prima Facie Law Blog.

• Stare Masters: Can Co-Worker Ogling Spark a Harassment Claim? – via Mindy Chapman’s Case in Point.

Wage & Hour

• Financial Service Workers May Be Glorified “Production Workers” Who Are Entitled to Overtime -- Davis v. J.P. Morgan Chase & Co. – from Brian Van Vleck at the California Workforce Resource Blog.

• Employees Are Exempt or Non-Exempt - Not Both – by the Overtime Advisor.

• More Enforcement for Wage and Hour Violations – via Mary Keating’s Maryland Employment Law Developments.

• U.S. Department of Labor Announces (Again) Increased Wage and Hour Enforcement – via Eric Welter’s Laconic Law Blog.

Miscellaneous

• A dog eats dog world: Petsmart sues over noncompete – from Rob Radcliff’s Smooth Transitions.

• Supreme Court Looking at Taking Case to Resolve “Cat’s Paw” Issue – via the HR Lawyer’s Blog. For more on the Cat’s Paw, see EEOC settles landmark “cat’s paw” discrimination case and The “Cat’s Paw” is alive and well in the 6th Circuit -- Pro se plaintiff’s trial win affirmed by Sixth Circuit.

• Union Election Win Rate Continues Upward In 2009 - 73% Win Rate Casts Further Doubt On Need For EFCA – by Hunton Employment & Labor Perspectives.

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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.

Insurance company pulls disability benefits over Facebook photo

A Canadian woman has lost her disability benefits because of photos pasted on Facebook. Cleveland.com has the details:

A Canadian woman on sick leave for depression said Monday she would fight an insurance company's decision to cut her benefits after her agent found photos on Facebook of her vacationing, at a bar and at a party. Nathalie Blanchard said Monday she was diagnosed with major depression and was receiving monthly sick-leave benefits until payments dried up this fall. When Blanchard called her insurance provider, Manulife, to find out why, she says she was told the Facebook photos showed she was able to work.

This story raises some practical tips for employers. There is a wealth of information about employees publicly available on the internet. Having said that, such information must be accessed and used responsibly. Employers should avoid using surreptitious means to access employees’ social networking. Also, employers should guard against the use of any protected information. For example, medical information could lead to an ADA claim, regardless of whether the employee voluntarily put that information on the web for the world to see.

For more on this story, click over to the thoughts of my fellow bloggers and legal journalists:

• Lowering the Bar: Facebook Pics Prove You Aren't Disabled, Insurer Tells Depressed Woman.
• Toronto Employment Law Blog: Insurance Company to applicant; According to your Facebook photos, you don't look too depressed to work.
• Employer Law Report: Facebook Photos Prompt Termination of Long Term Disability Benefits.
• Law.com: Insurer Questions Woman’s Depression Claim After Spotting Her Party Pics on Facebook.
• ABA Journal: Depressed Woman Loses Leave Benefits After Facebook Shows Her Having Fun.

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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? H1N1 and employees’ leave rights

The Department of Labor has published two guides for employers trying to navigate H1N1 and employees’ leave and pay rights (both PDFs):

• Pandemic Flu and the Family and Medical Leave Act: Questions and Answers
• Pandemic Flu and the Fair Labor Standards Act: Questions and Answers

Neither presents earth-shattering legal information. Having said that, the Department of Labor has done a nice job compiling useful tips for employers to turn to when an employee misses work because of the H1N1. Some of the more interesting nuggets are as follows:

FMLA

• The Department of Labor urges employees who themselves have H1N1, or who have family members with H1N1, to stay home. However, the DOL takes no position on whether H1N1 is covered under the FMLA as a “serious health condition.” Employers, though, are “encouraged to support these and other community mitigation strategies and should consider flexible leave policies for their employees.”
• The FMLA does not cover leave taken by an employee to avoid exposure to the flu.
• If an employee’s child’s school is closed, the FMLA does not require leave to care for a healthy child at home.
• Federal law does not require employers to provide paid leave to employees who are absent from work because they are sick with pandemic flu, have been exposed to someone with the flu, or are caring for someone with the flu.
• An employer may require an employee who is out sick with pandemic influenza to provide a doctor’s note, submit to a medical exam, or remain symptom-free for a specified amount of time before returning to work, potentially subject to limits in the FMLA and ADA.

FLSA

• If a business temporarily closes because of H1N1, that employer is not obligated to pay non-exempt employees for any hours they do not work.
• An employer can require that an employee perform work outside of the employee’s job description to cover for an absent employee.
• An employer may encourage or require employees to telework (work from an alternative location such as home) as an infection control strategy. Employers do not have to pay the same wage for telework, unless required to do so by a collective bargaining agreement or other contract.
• Employers are not required to cover additional costs that employees may incur if they work from home (DSL line, computer, additional phone line, increased use of electricity, etc.)?

For more on H1N1 preparedness, I recommend the following earlier posts:

• Do you know? Handling employees with suspected swine flu
• Can employers require flu shots for their employees?
• EEOC chimes in on swine flu with guides on how to prepare and remain Title VII/ADA compliant

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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 to look for in an employment lawyer

I presented last week at a marketing group I recently joined. In briefly speaking about who I am and what I do, it got me thinking about what companies should look for when hiring employment counsel. Here are my thoughts.

1. Experience and knowledge in the area. When you need to terminate an employee, or when an employee lodges a harassment complaint, you want to be able to pick up the phone and receive immediate advice about how to handle the situation. You don’t want your employment attorney to tell you that he or she will have to look into the situation and get back to you in a week with an answer. Employment law complex, ever-changing, and difficult to dabble in. An investment in someone who knows the area is one of the the most important HR decisions you can make for your business.

2. Willingness to get to know your business. There are legal decisions and business decisions, and the latter will always influence the former. Your counsel cannot provide sound legal advice without putting in the time and effort to know your business and its operations.

3. Proactive, not reactive. There is nothing businesses like less than spending money on lawyers. Having said that, employers are often better off spending a few thousand dollars spotting issues before they become problems than spending many hundreds of thousands of dollars fixing problems later. Your lawyer should be counseling you in this direction.

4. Demonstrated track record of trying employment cases. The best way to get a fair result out of a case is to have a lawyer who has actually tried employment cases. Litigation often devolves into a high stakes game of chicken. If your attorney is not comfortable in front of a jury, it becomes increasingly difficult not to blink first.

WIRTW #104

This week’s review starts with a bunch of recent reports and statistics that shed some light on employment practices:

• Paul Secunda, at the Workplace Prof Blog, discusses a recent General Accounting Office study that “many employers do not report workplace injuries and illnesses for fear of increasing their workers’ compensation costs or hurting their chances of winning contracts.”

• The Washington DC Employment Law Update, on the EEOC’s Performance and Accountability Report FY 2009 [PDF]. What’s more interesting to me than the fact that the EEOC had its 2nd busiest year ever, is that it currently has a backlog of 85,768 pending charges. That number explains why you’re still waiting for a determination 6 or 9 months after you’ve submitted your position statement.

• Mark Toth’s Manpower Employment Blawg shares the latest jury verdict research in employment cases. 2 key stats – employers have the lowest win rate in discrimination cases in a decade (39%), and the median settlement amount jumped 20% last year, to $90,000.

David Yamada’s Minding the Workplace shares his most recent research on workplace bullying. Meanwhile, Joel Stashenko, writing at the New York Law Journal, shares a recent New York State case concerning a workplace bullying club.

H1N1 continues to dominate the headlines. Bill Allen, at the Washington Labor & Employment Wire, digests some recently introduced paid sick leave legislation that is intended to help employees cope with H1N1, and Steve Bruce, at the BLR HR Daily Advisor, thinks that the ADA will limit some of the questions you can ask employees about their current health (including whether they have the swine flu).

This week also brings a couple of really good posts on social media: Molly DiBianca, at the Delaware Employment Law Blog, shares her recent presentation on social media and hiring, and Stephanie Thomas cautions that using social networking sites for recruiting could lead to disparate impact discrimination claims because of the demographics of their typical user.

In other background check news, FYIscreening.com comments on the legality of DNA tests for hiring decisions (using DNA for any employment decision is now illegal), and Nolo’s Employment Law Blog discusses whether bankruptcy is a permissible factor in a hiring decision.

In other news about genetic testing, the FMLA Blog has an excellent summary of the impact of the Genetic Information Nondiscrimination Act on FMLA medical certifications.

The EFCA Report has a very thoughtful take on the constitutionality of the proposed Employee Free Choice Act.

Michael Maslanka’s Work Matters, on the propriety of zero tolerance work rules.

Christopher McKinney’s HR Lawyer’s Blog, on employment decisions based on conduct outside of the workplace.

Sindy Warren, at the Warren & Hays Blog, on family responsibility discrimination.

Melanie McClure, at Arkansas Employment Law, on pregnancy as a disability under the recently amended ADA.

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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.

OSHA offers Black Friday guidance for retailers

Planning to hit next week’s Black Friday sales? Hoping to avoid being trampled like a Pamplona encierro? Luckily for you, our Department of Labor has come to your rescue. OSHA has release a fact sheet on Crowd Control Safety Tips For Retailers [PDF]. According to the Fact Sheet:

OSHA has prepared these guidelines to help employers and store owners avoid injuries during the holiday shopping season, or other events where large crowds may gather.

OSHA’s tips include:

• Having trained security personnel or police officers on site.
• Setting up barricades or rope lines for pedestrians and crowd control well in advance of customers arriving at the store.
• Making sure that barricades are set up so that the customers’ line does not start right at the entrance of the store.
• Preparing an emergency plan that addresses potential dangers.
• Having security personnel or customer service representatives explain approach and entrance procedures to the arriving public.
• Not allowing additional customers to enter the store when it reaches its maximum occupancy level and not blocking or locking exit doors.

Hopefully management of the store you’re visiting for that $99 HDTV looks at OSHA’s website. Happy and safe shopping.

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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.

GINA takes effect Saturday, November 21

Next week, we will all gather around the dining room table and share what we are thankful for. Next week also brings employers something that they may not be thankful for – a new employment law to comply with. The Genetic Information Nondiscrimination Act, which President Bush signed into law 18 long months ago, finally takes effect Saturday, November 21. Let’s take a quick look at what GINA means for businesses with 15 or more employees (its coverage limit).

• GINA adds “genetic information” to the list of classes of employees protected by the federal employment discrimination laws.

• “Genetic information” is broadly defined to cover information about an employee’s genetic tests, the genetic tests of an employee’s family members, and the manifestation of a disease or disorder in an employee’s family members.

• Drug and alcohol tests are not considered covered “genetic tests.”

• GINA makes it unlawful for an employer to make an employment-related decision with respect to an employee because of genetic information.

• GINA also makes its generally illegal for an employer to request, require, or purchase genetic information about an employee or an employee’s family member. Key exceptions include inadvertently obtained genetic information, qualifying health or genetic services such as voluntary wellness programs, FMLA medical certifications, and commercially and publicly available documents. Practically, this means that employers can no longer ask employees for family medical histories.

• If an employer obtains genetic information about an employee, it must maintain the information on separate forms and in separate medical files and threat it as a confidential medical record of the employee, similar to the treatment of other medical information under the ADA.

• An employer is only permitted to disclose genetic information upon a specific written request, in response to a court order, to comply with the FMLA’s certification procedures, or other very limited circumstances.

• Employees have the same rights and remedies for alleged violations of GINA as they do for alleged violations of Title VII.

GINA is the most expansive employment discrimination law to take effect in the last 20 years. For more information, I recommend the EEOC’s informational page on GINA (which includes links to the statute and its proposed regulations), and Steven Greenhouse’s article from the November 15 New York Times.

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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? Reliance on DOL opinions

Do you know that it is an absolute defense to a wage and hour claim that you relied on a written opinion of the Department of Labor in making your minimum wage or overtime payments? According to 29 U.S.C. 259:

[N]o employer shall be subject to any liability or punishment for or on account of the failure of the employer to pay minimum wages or overtime compensation if he pleads and proves that the act or omission complained of was in good faith in conformity with and in reliance on any written administrative regulation, order, ruling, approval, or interpretation, of the [Department of Labor].

The Department of Labor may not be the most friendly place for employers rights now (see Wage & Hour: Not Just Collective Actions Anymore), but its website is a wealth of wage and hour information for employers. It lists more than 200 formal opinion letters that provide a step-by-step guide on how to comply with the FLSA. And, if you rely on one of those letters in paying an employee, you have a defense to a minimum wage or overtime lawsuit.

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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.

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.