“Sue first” mentality costs EEOC $4.5 million in sanctions, yet I question whether this is a good thing

Shoot first and ask questions later, and don't worry, no matter what happens, I will protect you.
—Hermann Goering

In EEOC v. CRST Van Expedited (N.D. Iowa 2/9/10) [pdf] (courtesy of Ross Runkel and Workplace Prof Blog), a federal judge tagged the EEOC with $4,467,442.90 in attorneys’ fees and costs for its “sue first, ask questions later litigation strategy” in pursuing a systemic sex discrimination case. What did the EEOC do (or, more accurately, what didn’t it do) that led to this huge fine?

• Following summary judgment 67 of the original 270 plaintiffs remained in the case. Those 67 claims, however, never made it to trial.

• The court dismissed the claims of the remaining 67 plaintiffs because the EEOC “did not conduct any investigation of the specific allegations of the allegedly aggrieved persons for whom it seeks relief at trial before filing the Complaint—let alone issue a reasonable cause determination as to those allegations or conciliate them.” Indeed, “the EEOC did not even interview any witnesses or subpoena any documents to determine whether any of their allegations were true.”

• The EEOC did not make a reasonable cause determination as to the specific allegations of any of the 67 allegedly aggrieved persons prior to filing the Complaint. In fact, 27 of the women alleged they were sexually harassed after the lawsuit was filed, and the EEOC did not learn the substance of the allegations of another 38 until after it filed its Complaint.

• The court concluded that the EEOC’s failures prejudiced the employer: “The EEOC’s failure to investigate the claims of the 67 allegedly aggrieved persons deprived CRST of a meaningful opportunity to engage in conciliation and foreclosed any possibility that the parties might settle all or some of this dispute without the expense of a federal lawsuit.”

My first instinct is to applaud this court for holding the EEOC’s feet to the fire. It’s comforting to witness governmental accountability for a lack of diligence in an era of increased vigilance in the enforcement of EEO laws.

Yet, I think this decision will have deeper implications for the agency and businesses. While it will act as an important check on the EEOC’s recent run of federal filings, it will also cause the EEOC to dig deeper and wider at the investigatory stage to support the lawsuits that it does file. The agency now has a roadmap from a federal court setting forth what is necessary pre-suit: complainant and witness interviews, document reviews, reasonable cause determinations, and an offer of conciliation.

In other words, applaud the visceral appeal of seeing the EEOC take one on the chin, but be very wary of the increased administrative burden this decision will likely place on your business in future EEOC investigations.

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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? Unsupervised waivers of federal wage and hour claims

Generally, courts recognize only two ways for an individual to release or settle a claim for unpaid wages under the Fair Labor Standards Act: 1) a DOL-supervised settlement under 29 U.S.C. § 216(c), or 2) a court-approved stipulation of settlement. Failing to use of these two options for the approval of a waiver will likely result in the invalidity of the waiver an the employee being able to sue for any unpaid balance.

If you are engaged in active litigation with an employee, the latter option is easy to achieve. You simply submit the settlement agreement to the assigned judge for his or her approval. Similarly, a DOL investigation will culminate in some combination of both options.

What are your options, though, if you are not in on-going litigation or already part of a DOL investigation? As I see it, you have 2 choices:

1. If you intend to pay less than the full amount owed, you can ask the employee to file a lawsuit for the sole purpose of judicial approval of the settlement; or
   
2. If you intend to pay the full amount owed, you can pay the employee in full for any wages owed and forego the release and waiver. This leaves a slight risk that the employee(s) could still bring a suit for unpaid liquidated damages (the FLSA provides for double back pay as liquidated damages for willful violations). Your voluntary mitigation, however, will go a long way to deterring any future lawsuits.
   

What shouldn’t you do? Contact the DOL for its supervision of the settlement. That is a radar that you do not want to be on. The supervised settlement will beget a full-blown wage and hour audit, which will beget an OSHA on-site, which will beget an OFCCP inquiry, which will beget an ERISA audit…. You get the picture. With the Obama administration pumping more funds into the DOL and promising increased enforcement, there is no need to throw yourself under its bus.

6 universal truths about avoiding retaliation liability

According to French philosopher Albert Camus, “Retaliation is related to nature and instinct, not to law. Law, by definition, cannot obey the same rules as nature.” In other words, it is human nature to retaliate, and if accused of wrongdoing, a natural response is to get even.

This month’s issue of the American Bar Association’s Law Practice Today contains my thoughts on what law firms can do to curb this natural instinct and limit potential liability for retaliation claims by employees. While the article’s intended audience is law firm partners and managers, its message is universal:

Retaliation claims are among the biggest risks facing employers in every industry…. It is the quickest way to turn to a defensible employment claim into a liability problem. It is incumbent upon everyone in your organization to take personal responsibility to suppress the natural urge to retaliate, and incumbent upon every firm to educate lawyers and staff about this critical responsibility.

For my 6 best-practices for avoiding retaliation within your organization, click over to Revenge Is a Dish Best Never Served to Employees: Avoiding Retaliation Liability.

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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 #114

The big story this week is the Senate's successful blockage of NLRB nominee Craig Becker. Becker was potentially dangerous for businesses because of his fringe views on labor unions, and the risk that he would try to circumvent Congress by implementing the Employee Free Choice Act administratively.

• Nominee Craig Becker's Appointment to the NLRB is Blocked in Senate from Hunton Employment & Labor Law Perspectives™

• Outlook Not So Good Becker Recess Appointment from Jeffrey Hirsch at the Workplace Prof Blog

• Out in the Cold? Becker not confirmed, Labor not affirmed from LaborPains.org

• Article Paints Grim Picture for Labor Agenda from Washington D.C. Employment Law Update

• Senate Blocks Nomination of Craig Becker to NLRB from Washington Labor & Employment Wire

• 52- 33; Becker Loses from Michael Fox’s Jottings By An Employer's Lawyer

• Meyerson in WaPo: EFCA is Dead from EFCA Report

“Undercover Boss”

• “Undercover Boss” has lessons for upper management from Warren & Hays Employment Law Blog

• ‘Undercover Boss’: A Fairy Tale That Ignores Grim Reality from Workplace Fairness

• Undercover Boss: You Wish That's All It Took to Change Your Business... from The HR Capitalist, Kris Dunn

• What Kind of Boss Are You? from Minnesota Labor & Employment Law

• Why employment lawyers screamed more than those Denny’s chickens from Jay Shepherd’s Gruntled Employees

Wage and Hour

• Is It Working Time Or Not? Employer Compulsion Is The Key Element from Wage & Hour - Development & Highlights

• Staples, Inc. Settles Assistant Store Managers' Overtime Claims for $42 Million from WorkplaceHorizons

• President Obama Backs Department of Labor Misclassification Fight from Florida Employment Law Blog

• Don't Forget: States Have Penalties for Overtime Violations Too from Overtime Advisor

• Sales rep falls within FLSA’s “administrative” exemption because of independent strategic planning responsibilities from Employment Law Matters

Social Media

• Employment Law Blog Maven in 5 Easy Steps from Philip Miles’s Lawffice Space

• Social Media & HR Primer: 3 Key Tools from Molly DiBianca’s Delaware Employment Law

• A Tale of Two Reference Check Responses — Liability for One, But Not the Other from George's Employment Blawg

• Social Media: Your Best Offense or Your Best Defense? from HR Daily Advisor

• Employment Background Checks on Facebook from employeescreenIQ Blog by Nick Fishman

ADA

• $6.2 Million Settlement in EEOC Complaint Against Sears, Roebuck & Company Re: Inflexible Leave Exhaustion Policy Violates ADA from The Labor and Employment Law Blog

• The ADA Trumps Absence Policies at Sears from by Mary Keating’s Maryland Employment Law Developments

• An Important Step in the ADAA: The Interactive Process from Michael Haberman’s HR Observations

Statistics

• Including Statistical Analysis Into Your Employment Litigation Risk Management Plan from Stephanie Thomas

• Survey Statistics: Are You a Mean or a Median Aficionado? from Ann Bares’s Compensation Force

Miscellaneous

• (It's) Snow Joke: Weather Plays Games with Employers -- A Recap from Dan Schwartz’s Connecticut Employment Law

• It's not that hard to say you’re sorry from Michael Maslanka’s Work Matters

• Pitfalls to Avoid in Workplace Investigations from Debra Reilly’s Workplace Investigations Blog

• Another Valentine’s Day, Another Rant on Why Workforce Romance Is a Bad Idea from The Business of Management

• Conan Versus NBC Fiasco Illustrates Contract Law at Work in “Real Life” from Teri Rasmussen’s Ohio Practical Business Law

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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 your actions speak louder than your employees’ harassing words

Perhaps no single act can more quickly alter the conditions of employment and create an abusive working environment than the use of an unambiguously racial epithet such as “nigger” by a supervisor in the presence of his subordinates.

So said the 7th Circuit in Rodgers v. Western-Southern Life Ins. Co. Harassments works on a sliding scale. To be actionable, the offensive conduct creating the hostile work environment has to either be severe or pervasive. Isolated incidents are not pervasive, but can be severe, depending on the language used. A white employee dripping an “N-bomb” on a black employee can certainly satisfy severity.

How then, did the employer escape liability for workplace “N-bombs” in Hargrette v. RMI Titanium Co. (Trumbull App. 2/5/10) [pdf]? It took swift remedial action.

In 2002, Kearns allegedly called McKinnon a “nigger.” … [T]he inappropriate comment occurred during an argument between Kearns and McKinnon. The argument resulted in both Kearns and McKinnon being suspended for three days. In his deposition, McKinnon states that Kearns was not a supervisor. In addition, this remark appears to be an isolated instant. While McKinnon stated he did not get along with Kearns, it is only alleged that Kearns called McKinnon a “nigger” on this single occasion. Finally, we note that, upon being informed of the incident, management investigated the situation and reprimanded Kearns for his misconduct.

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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 have a severe weather policy?

I laugh at the east coast’s ongoing snow woes because (a) I grew up in Philadelphia, (b) my family is still there, and (c) last week notwithstanding, Philly’s winters don’t hold a candle to Cleveland’s. In fact, Forbes.com just crowned Cleveland as America’s worst winter weather city. (We’re also number 4 on the list of America’s most miserable cities – we’re nipping at your heels Chicago).

As I cleared my driveway this morning, I decided to share the following thoughts for drafting a severe weather policy for your workplace.

1. Communication. How will your business communicate to its employees whether it is open for business or closed because of the weather? Are there essential personnel that must report regardless of whether the facility closes?

2. Early closing. If a business decides to close early because of mid-day snowstorm, how will it account for the orderly shut-down of operations? Which employees will be able to leave early and which will have to remain to ensure that the facility is properly closed? Is there essential crew that must stay, or is there an equitable means to rotate who must stay and who can leave?

3. Wage and hour issues. To avoid jeopardizing exempt employees’ status, they should be be paid their full salary when a company closes because of weather. For non-exempt employees, however, it is entirely up to the company whether to pay them for a full day’s work, for part of the day, or for no hours at all. Will employees have to use vacation or other paid time off if they want to be paid for the day, or will the company consider it a freebee? If your company closes but an employee does not get word and reports to work, will the company pay that employee anything for reporting?

4. Attendance. Will the absence be counted against employees in a no-fault or other attendance policy, or defeat any perfect attendance bonuses?

5. Telecommuting. If your area has frequent bouts of severe weather, consider whether you want to allow employees to telecommute. Even if your business does not typically permit employees to work from home, exceptions for exceptional weather could potentially save you lost productivity.

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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? Why statistics are so important in reduction in force cases

For the past week, I’ve been examining the use of statistics in workforce reduction discrimination cases (6th Circuit downgrades importance of statistics in reduction-in-force cases and How small is too small? Litigating sample sizes in reduction in force cases). What’s been missing from this analysis, however, is an explanation of why raw numbers are so important in these cases, especially in age discrimination claims.

Many workforce reductions are accompanied by an offer of severance to the group of terminated employees. In fact, I don’t think any employer should pay severance without getting something in return from the employee, namely a release and waiver of liability.

The Older Workers Benefit Protection Act requires all releases and waivers of federal age discrimination claims provided as part of a severance program offered to a group of employees (such as in a reduction in force) to include a written disclosure of the job titles and ages of all eligible individuals selected for the program and all not selected for the the program. The EEOC, in its guidance on Understanding Waivers of Discrimination Claims in Employee Severance Agreements, provides the following example of what this disclosure should look like:

Job Title	Age	# Selected	# Not Selected
(1)	25	2	4
	28	1	7
	45	6	2
	63	1	0
(2)	24	3	5
	29	1	7

When the lone 63-year-old employee in Job Title 1 is going to decide whether to sign the waiver or pursue an age claim, the only fact he and his lawyer will have to go on is that within his job grouping, 7 out of the 9 oldest employees were RIFed, including the oldest employee. In other words, the raw statistics that the court discussed (and dismissed) in Schoonmaker will likely be the critical piece of information on which your employees will base their decision whether to sue or walk away. And, you have no choice but to turn this information over. Failing to do so will result in the invalidity of the age discrimination waiver.

Schoonmaker may question the relevance of raw statistics, but because the numbers must be disclosed to the terminated employees, they are nevertheless critical to any workforce reduction decision.

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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.

How small is too small? Litigating sample sizes in reduction in force cases

Last week’s post on the use of statistics in reduction in force cases garnered some interest from a fellow blogger, Stephanie Thomas. She argues on her blog that small sample statistics still have a place in workforce reduction litigation. After reading Stephanie’s take on this issue, we carried the conversation over to Twitter (Are you following me on Twitter @jonhyman? If not, shame on you).

My conclusion is that the Schoonmaker decision merely begs the question of how small of a sample size is too small to make pure statistics irrelevant in a RIF case. Stephanie and I agree that you will see more expert witness battles on the issue of whether a sample size is large enough to be statistically relevant.

If I’m defending a RIF, the first thing I’m doing is hiring a statistical expert to opine that the sample size is too small to be statistically significant. From there, I’ll argue that under Schoonmaker the case should be dismissed, unless the plaintiff can come forward with some “plus” evidence of discrimination.

Conversely, if a RIFed employee wants to rely on statistics alone, he or she will have to hire an expert to opine that the sample size is large enough to be statistically significant. If you have competing experts, you very well might have a factual issue over the sample size. Or, the judge could decide as a matter of law that the sample size is too small and toss out the statistics as irrelevant.

On my first read through Schoonmaker, I thought it gave concrete answers on a plaintiff’s prima facie requirements in a workforce reduction. After more deliberation, and a healthy Twitter debate with Stephanie Thomas, I’ve now concluded that Schoonmaker may create more questions than it answers.

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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 #113

The theme of this week’s review is déjà vu. In each category, I’ve linked back to at least one post I’ve written on a similar subject.

Social Media

• 5 Non-Negotiable Provisions for Your Social-Media Policy from Molly DiBianca at Delaware Employment Law. For my thoughts on drafting a social media policy, see Drafting a social networking policy: 7 considerations.

• It’s Not Just for Teenagers – More Businesses are Using Facebook to Connect from Jennifer Hays at the Warren & Hays Employment Law Blog.

• Privacy: Facebook Legal Department Hopes for Guidance from Court from Megan Erickson’s Social Networking Law Blog.

• Do You Really Want To Take on the 350 Million Pound Gorilla in the Room? from Dan Schwartz’s Connecticut Employment Law.

• Facebook and FINRA: FINRA's Social Media Guidance from Rob Radcliff’s Smooth Transitions.

• A Master’s Class in Hiring a Person With Credit Wrecked By Bad Health and Being Laid Off from Frank Roche’s KnowHR Blog.

Background Checks

• More on Resume Fraud and Fake Job References from Nick Fishman at employeescreenIQ Blog. For my thoughts on fake job references, see Do you know? Fake job references?

• Avoid A Few Common Mistakes When Conducting Background Checks from the New York Labor and Employment Law Report.

• Ring Ring or Ding Ding? Know the Legal Way to Answer Reference Calls from Mindy Chapman’s Case In Point.

Discrimination & Harassment

• Will 6th Circuit case result in cert grant, end employee-rights run at high court? from Colleen McGushins’ Work Matters. For my thoughts on the issue of associational retaliation see En banc panel of 6th Circuit reverses prior holding in Thompson v. North American Stainless and rejects associational retaliation claims.

• English Only Rules Spark Controversy from San Antonio Employment Law. For my thoughts on English-only rules, see EEOC settlement highlights red flags for English-only policies.

• When Is It Okay to Cuss Out Your Boss? from Dennis Westlind’s World of Work. For more on foul language in the workplace, see Warning – vulgar language ahead: 11th Circuit decides whether tasteless workplace behavior is actionable as sexual harassment.

• Movement on Paycheck Fairness Act? from The Word by John Phillips. For my thoughts on the Paycheck Fairness Act, see Something wicked this way comes – Congress’s 2010 employment law agenda.

• Pornography Investigation at SEC Ongoing from Debra Reilly’s Workplace Investigations Blog.

• Once Again---Avoiding the Appearance of Bias Backfires from HR Briefcase.

• Despite Assertions to Contrary, Employment Laws Do Exist from World of Work.

• A Year After Ledbetter - What's Next for Fair Pay for Women? from Workplace Fairness.

• Top 5 HR Mistakes That Small Businesses Make from Michael Haberman’s HR Observations.

• Employers Should Be Vigilant as the EEOC Anticipates Increased Charges, Funding, and Enforcement in 2010 from WorkplaceHorizons.

Courts and Litigation

• Employment Agreement Shortening Statute of Limitation Is Invalid from Labor Employment Law Blog. For the legality of these types of provisions in Ohio, see Some alternatives to arbitration of employment claims.

• Access to an Employment Case Jury Ordered from Workplace Prof Blog.

• A new look at 12(B)(6)? from Russ Bensing’s The Briefcase.

• Stripper Dances Off With $100K From Club in DUI Case from On Point.

• Stripper: getting tipsy was part of my job (update) from Overlawyered.

• What a Mess: The Tenure Appeal Meeting at Ohio University by Bob Sutton.

Labor Law

• SEIU Blog Accepts Chamber’s EFCA Polling Results; Misstates Arbitration Provision from The ChamberPost. For my earlier thoughts on public perception of the EFCA and the need for labor unions, see Employee Free Choice Act officially kicks off, but does anyone care?

• State of the Unions - EFCA-Lite and the Private Sector Decline from Philip Miles’s Lawffice Space.

• Senate Confirms Patricia Smith as Labor Solicitor from Washington D.C. Employment Law Update

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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.

6th Circuit downgrades importance of statistics in reduction-in-force cases

Yesterday, I discussed a 6th Circuit decision that provided guidance to employers on how not to RIF an employee on FMLA leave. Today, I’m going to examine another decision out of the 6th Circuit this week on the issue of RIFs, which clarifies what a laid-off employee has to prove to establish age discrimination following a reduction in force.

RIFs provide a built-in protection for employers in age discrimination cases, because the legitimate non-discrimination reason for the termination – the economic necessity for the workforce reduction – is established from the outset. Thus, employees challenging a RIF on account of age have a higher prima facie burden. When a termination arises as part of a work force reduction, the plaintiff must provide “additional direct, circumstantial, or statistical evidence tending to indicate that the employer singled out the plaintiff for discharge for impermissible reasons.”

In Schoonmaker v. Spartan Graphics Leasing (6th Cir. 2/3/10) [pdf], the plaintiff claimed that the fact that her employer retained younger employees in her position, and that her employer RIFed the two oldest employees, satisfied the “additional evidence” necessary to overcome the employer’s economic justification for the RIF. The 6th Circuit correctly rejected this assertion, and in doing so put a dagger through the heart of the use of bald statistics of small samples in RIF cases:

If the plaintiff’s case-in-chief is viewed as satisfying the requirements for a prima facie case of age discrimination, then every employer who terminates an employee between 40 and 70 years of age under any circumstances, will carry an automatic burden to justify the termination….

[S]tatistical evidence may satisfy the fourth element in a work force reduction case ... [but] such a small statistical sample is not probative of discrimination.

In other words, in RIFs with a small sample size, an employee will have to come up with evidence other than pure statistics to go forward with a discrimination claim – evidence that that RIFed employee was objectively more qualified than the younger retained employees.

Despite this case, employers act at their own peril by ignoring statistics. Before any RIF is finalized, businesses should be analyzing the numbers across all key demographics, in addition to comparing the relative qualities and qualifications of the departing versus the remaining. Performing this diligence may not prevent a lawsuit from being filed (especially if the raw numbers appear to look discriminatory), but it will give you the necessary ammunition to defend any subsequent discrimination lawsuits that are filed.

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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.

Reduction in Force vs. Leave of Absence: How not to handle the convergence

There is no rule that says that you cannot terminate an employee on FMLA leave in a reduction in force. Conventional wisdom (and the real risk of being sued), though, dictates that it must be done carefully and with every “i” dotted and “t” crossed. It is also best to keep comments about the employee’s leave of absence out of the calculus used to determine who stays and who goes. Take Cutcher v. Kmart (6th Cir. 2/2/10) (unpublished) [pdf] as an example.

Susan Cutcher worked at Kmart from 1984 until her termination as part of a workforce reduction at the end of 2005. From 2000 on, she directly reported to Barbara Borrell, who evaluated Cutcher’s performance on an annual basis. Each of Borrell’s evaluations of Borrell resulted in an overall rating of either “Exceptional” or “Exceeds Expectations,” including her final performance review, which occurred just a month before Kmart announced a nation-wide RIF and which included Cutcher. On that final performance review, Cutcher received highest marks for customer service, but lost points for teamwork.

That nation-wide RIF occurred while Cutcher was out of work on an approved FMLA leave. Cutcher’s store eliminated 6 full-time employees. Employees’ performance evaluations and scores were converted to a different scale and re-ranked for purposes of the RIF. On Cutcher’s RIF appraisal, the following comment appeared: “Poor customer and associate relations. LOA.” Kmart did not eliminate Cutcher’s position, but gave it to a coworker with a higher RIF appraisal ranking. Cutcher sued, claiming that her inclusion in the RIF violated the FMLA.

Kmart correctly pointed out that an employer need not restore an employee who would have lost her job or been laid off even if she had not taken FMLA leave. Thus, it argued for dismissal of the FMLA claims on the grounds that it would have fired Cutcher even if she had not taken FMLA leave. The 6th Circuit disagreed:

Given Cutcher’s prior annual appraisal scores, the minimal amount of time that passed between her most recent annual appraisal and the RIF appraisal, Kmart’s admission that Cutcher’s performance did not change during that short period of time, the inclusion of the “LOA” notation on the Associate Performance Recap Form, and the lack of any documented evidence demonstrating a prior concern with her job performance, a jury could infer that her leave status impacted her RIF appraisal ratings, thus leading to her termination.

The takeaway from this case is that employers planning a reduction in force must be careful in the language used to discuss employees. If you don’t want a judge or jury to infer that you took an employee’s leave of absence into consideration, don’t write “LOA” anywhere near the employee’s name on any document concerning the RIF. It may sound trite, but in litigation, everything you wrote or said can and will be used against you.

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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? What to do when you get sued

When you are sued in an employment case, the absolutely first thing you should do is call your lawyer. There are steps that must be taken as soon as you receive notice of the complaint, the failure of which could put your entire defense at risk.

1. An answer or other response must be timely filed. You could waive the right to file certain counterclaims and raise certain jurisdictional and other defenses by missing this critical deadline.

2. If you want to remove a case from state court to federal court, you only have 30 days to act. This is a hard and fast deadline, with no extensions possible. Counsel needs to be involved early to analyze whether the case is removable and to prepare the necessary paperwork.

3. A litigation hold should be put in place to preserve emails, other electronic records, and paper documents that could bear on the litigation. Key documents should be gathered and secured. Your attorney can help make sure that documents aren’t deleted or destroyed, a flub that could submarine your entire case.

4. Witnesses should be identified, and told that they should not communicate with anyone other that counsel about the case. If any employee is at risk for leaving your organization, potential testimony should be memorialized in an affidavit while the employee is still on favorable terms and under your control.

5. If you have EPLI coverage, you should put your carrier on notice so that coverage is not jeopardized and any defense costs are properly credited against your deductible.

6. Depending on the size and notoriety of the case, you may want to get out of the blocks early with some public relations. That message has to be crafted and managed by counsel so that it does not hurt a successful defense.

Tripping on any one of these important early steps can have serious consequences on your overall defense. Resist the D.I.Y. urge and lawyer-up as soon as you find out you’ve been sued.

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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.

EEOC announces curious partnership as it expands community outreach

The EEOC has announced that it has partnered with Beachwood’s Maltz Museum of Jewish Heritage to help employees file discrimination complaints. The agency will set up a temporary charge intake station at the museum on the last Thursday of each month. According to EEOC Cleveland Field Office Director Dan Cabot, “It’s a good partnership for us and for the community.”

To me, it’s a weird partnership. I understand the theming – the EEOC fights intolerance in the workplace and the Maltz Museum advocates for tolerance among religions and ethnicities. But, anyone who knows Cleveland geography will understand that no one in Beachwood and its surrounding communities needs help getting to the EEOC’s main office downtown. While this staged synergy sounds like a publicity stunt, it is one that employers should pay close attention to. The EEOC is clearly empowered, and employers who ignore their EEO responsibilities in today’s political climate do so at their own risk.

[Hat tip: Warren & Hays Blog]

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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 #112

Here’s what you missed this week if you’re only reading my blog.

Labor

• Breakfast with NLRB Regional Director - (Part 3) - What Issues Should Employers Be On the Lookout For? – from Daniel Schwartz’s Connecticut Employment law

• Installing webcams an unfair labor practice? – from the LawMemo Employment Law Blog

• WSJ: Labor Leaders Assess EFCA's Prospects After Brown Election in MA – at the EFCA Report

• DOL Argues State Wage and Hour Class Actions are Compatible with the FLSA – from the Washington D.C. Employment Law Update

Sex Discrimination & Harassment

• Pregnancy discrimination in the workplace still a very live issue – from Donna Seale’s Human Rights in the Workplace

• Adverse employment action based on gender-related non-conforming behavior and appearance is impermissible – from Employment Law Matters

• Of slacks and sex discrimination – from Colleen McGushin’s Work Matters

• Do employers have a heightened duty to protect teen workers from harassment? – by Sindy Warren at the Warren & Hays Employment Law Blog by Sindy

• Judging Credibility of Witnesses in Harassment Investigation – via Debra Reilly’s Workplace Investigations Blog

Non-Competition Agreements

• Court Orders Barring Enforcement of a Non-competition Agreement - Reverse Injunctive Relief – via the My Employment Lawyer Wiki

• Jay & Conan - Best Legal Analysis Roundup – via Teri Rasmussen’s Ohio Practical Business Law

Social Networking

• FINRA Issues Guidance on Blogs and Social Networking Web Sites – from the Social Networking Law Blog

• Q&A On Using Social Networks For Background Screening – from fyiscreening.com

Miscellaneous

• State of the Union — Employment Law – from The Word by John Phillips

• “Zubulake Revisited: Six Years Later” Judge Shira Scheindlin Issues her Latest e-Discovery Opinion – from Electronic Discovery Law

• Sorry Fido, You Won't Qualify Your Owner for FMLA Leave – at the Prima Facie Law Blog

• The Aftermath of a Supreme Court Decision: Another MDV – from Michael Fox’s Jottings By An Employer's Lawyer

• Importance of Litigation Avoidance and Proactive Practices – by Stephanie R. Thomas, Ph.D.

• Shabby Treatment at Termination Begs for a Lawsuit – from HR Daily Advisor

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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.

Don’t forget about the retaliation

According to a story on NJ.com, a jury has ordered an adult novelty company to pay $500,000 to a fired saleswoman. She had sued for harassment and retaliation following her termination, claiming that she was fired after complaining about harassment by a co-worker. According to her attorney, “The president of the company yelled and screamed at her and disciplined her for the first time in the four years she’d worked there. He accused her of saying bad things about the company.”

We can debate whether someone who chooses sell adult products can be sexually harassed. What should not be open to debate, though, is that a company cannot berate, discipline, or terminate an employee following a harassment or discrimination complaint. Allegations of retaliation often turn a defensible EEO lawsuit into a huge liability risk. Unfortunately, this lesson is one that many companies do not learn until it’s too late.

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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’s good for the goose isn’t always good for the gander: legal fees in employment lawsuits

One of the questions clients often ask me is whether they can pursue a plaintiff for defense costs after a successful dismissal. It only seems fair to the client that if they have to pay legal fees if the employee wins a discrimination lawsuit, the employee should be held to the same standard.

The answer is that an employer can pursue a plaintiff for legal fees, but it has to prove that the lawsuit was brought frivolously, which is a tall order. Ohio law defines frivolous conduct as follows:

• It obviously serves merely to harass or maliciously injure another party to the civil action or appeal or is for another improper purpose.

• It is not warranted under existing law, cannot be supported by a good faith argument for an extension, modification, or reversal of existing law, or cannot be supported by a good faith argument for the establishment of new law.

• The conduct consists of allegations or other factual contentions that have no evidentiary support or are not likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.

• The conduct consists of denials or factual contentions that are not warranted by the evidence or are not reasonably based on a lack of information or belief.

While it is not impossible, it is very difficult to prove that a employee acted frivolously in filing an employment lawsuit. Instead of spending time and money worrying about recouping legal fees from ex-employees, employers would better served chalking up litigation expenses as a cost of doing business, or simply avoiding litigation in the first place.

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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? FMLA leave for unmarried fathers

Do you need another reason to get married? The FMLA provides husbands greater rights than unwed fathers.

The FMLA distinguishes between fathers and husbands based on the type of FMLA-leave sought:

• Fathers are entitled to FMLA leave for the birth of their child and for paternity leave to be with the healthy newborn child (i.e., bonding time) during the 12-month period beginning on the date of birth.

• However, only husbands are eligible to take leave to care for his incapacitated pregnant spouse, to care for her during her prenatal care, or to care for her following the birth of a child if she has a serious health condition.

The FMLA only grants unmarried fathers paternity leave rights. It gives no benefit to the unmarried for any leave to care for the baby’s mother, either prenatally or postnatally.

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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.

Faith healing and the FMLA

The Smart HR Manager brought to my attention a recent case out of Massachusetts which held that an employee could not use FMLA leave to care for a spouse with a serious health condition who seeks to travel abroad for faith-based healing. The opinion, however, dodges the issue of whether faith-based healing is covered by the FMLA. Instead, it dismissed the FMLA claim because more than half of the trip was spent visiting family and friends and sightseeing, and the FMLA does not permit employees to vacation with a seriously ill spouse, even in a caregiving capacity.

The case, though, got me to thinking, is a faith-healer covered under the FMLA as a “health care provider?” The most logical place to look is the FMLA’s regulations. Section 825.125 defines a “health care provider” as—

1. A doctor of medicine or osteopathy;

2. Podiatrists, dentists, clinical psychologists, optometrists, and chiropractors;

3. Nurse practitioners, nurse-midwives, clinical social workers and physician assistants;

4. Christian Science Practitioners listed with the First Church of Christ, Scientist in Boston, Massachusetts; or

5. Any health care provider from whom an employer or the employer’s group health plan’s benefits manager will accept certification of the existence of a serious health condition to substantiate a claim for benefits.

Faith-healers do not fall under any of these categories. This conclusion only resolves whether the FMLA covers leave for faith-healing. It does not address whether other laws – such as Title VII’s religious discrimination protections – protect these employees, which is a topic for another day.

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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 #111

Conan O’Brien, Jay Leno, and NBC continue to dominate the headlines this week. I’ve previously shared my thoughts. Here’s what my fellow bloggers had to say this past week:

• What Can Employer’s Learn From Conan O’Brien’s Severance Agreement? – via Molly DiBianca at Delaware Employment Law.

• What Does the Conan-Leno-NBC Debacle Mean for Entertainment Law? – from Above the Law.

• Conan, Leno, Letterman, Money – at The Word on Employment Law with John Phillips.

• Boss Basics: Real Leaders Really Take Care of Their Staffs – from The Business of Management.

• Lessons from Conan's Non-Compete Negotiations – via Rob Radcliff’s Smooth Transitions.

• Thoughts on the Conan O'Brien Debacle – by the Workplace Diva.

The other big story of the week was the election of Scott Brown to fill the late Ted Kennedy’s Senate seat. It cost the Democrats their super-majority, and will have long-lasting effects on the President’s agenda, including his ambitious slate of labor and employment reforms. Here’s what other have to say about the swing of the political tide in Washington:

• The Brown Effect: Is EFCA Dead? – from Mark Toth’s Manpower Employment Blawg.

• How Will Brown's Win Impact Labor and Employment Law? – from the Washington DC Employment Law Update.

• Another Blow to EFCA Passage – via Workplace Horizons.

• Scott Brown win spun as “victory” by Big Labor – at LaborPains.org.

• The Importance Of Scott Brown: Everyone Agrees, But… – via Discriminations.

As for other news of the week that you might have missed…

• The True Cost of Employment Litigation – via Dan Schwartz’s Connecticut Employment Law.

• Comment on ‘Go Time’ For Discrimination Claims – by Stephanie Thomas.

• A Trap for the Unwary: "Professional" Duties and the Professional Exemption – from New York Labor and Employment Law Report by Joseph Dole.

• Employment-related class actions on the rise – by Sindy Warren at the Warren & Hays Employment Law Blog.

• Discrimination on the basis of “color” – at Maryland Employment Law Developments.

• Is This Retaliation or Discrimination? – at the UndercoverLawyer.

• Less Than 15 Employees? There's Always Immigration Discrimination – from Michael Fox’s Jottings By An Employer's Lawyer.

• Non-Disabled Applicant Can Go To Trial Based on Company's Pre-Employment Medical Inquiry, Says Eleventh Circuit – from Florida Employment Law.

• Catch Fishy FMLA Requests With the 3 R's – via Mindy Chapman’s Case in Point.

• Is the job so easy a caveman could do it? – at the Wage & Hour Defense Blog.

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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.

Warning – vulgar language ahead: 11th Circuit decides whether tasteless workplace behavior is actionable as sexual harassment

We recite the profane language that allegedly permeated this workplace exactly as it was spoken in order to present and properly examine the social context in which it arose. We do not explicate this vulgar language lightly, but only because its full consideration is essential to measure whether these words and this conduct could be read as having created “an environment that a reasonable person would find hostile or abusive.”

So starts the 11th Circuit’s opinion in Reeves v. C.H. Robinson Worldwide (1/20/10) [pdf], which decides the issue of whether vulgar language to which all employees (male and female) are equally exposed is actionable as sexual harassment.

The court made a clear distinction between general vulgarities and sex-specific epithets:

While the record is replete with evidence of general, indiscriminate vulgarity, there is also ample evidence of gender-specific, derogatory comments made about women on account of their sex….

Reeves … identified a substantial corpus of gender-derogatory language addressed specifically to women as a group in the workplace. Her coworkers used such language to refer to or to insult individual females with whom they spoke on the phone or who worked in a separate area of the branch. Although not speaking to Reeves specifically, Reeves said that her male co-workers referred to individuals in the workplace as “bitch,” “fucking bitch,” “fucking whore,” “crack whore,” and “cunt.”

Thus, the court differentiated between general, gender-nonspecific swear words, such as shit and fuck, (maybe improper, but not necessarily unlawful) as compared to gender-specific epithets such as bitch, whore, and, the granddaddy of them all, cunt (unlawful harassment).

[T]he context may illuminate whether the use of an extremely vulgar, genderneutral term such as “fucking” would contribute to a hostile work environment. “Fucking” can be used as an intensifying adjective before gender-specific epithets such as “bitch.” In that context, “fucking” is used to strengthen the attack on women, and is therefore relevant to the Title VII analysis. However, the obscene word does not itself afford a gender-specific meaning. Thus, when used in context without reference to gender, “fuck” and “fucking” fall more aptly under the rubric of general vulgarity that Title VII does not regulate….

[W]ords and conduct that are sufficiently gender-specific and either severe or pervasive may state a claim of a hostile work environment, even if the words are not directed specifically at the plaintiff…. It is enough to hear co-workers on a daily basis refer to female colleagues as “bitches,” “whores” and “cunts,” to understand that they view women negatively, and in a humiliating or degrading way. The harasser need not close the circle with reference to the plaintiff specifically: “and you are a ‘bitch,’ too.”

To conclude:

• General vulgarities are not actionable as harassment.
• Severe or pervasive gender-specific words or phrases are actionable as harassment even if the words are not specifically directed at one employee, but merely generally used in the workplace.
• Severe or pervasive conduct targeting a protected group also qualifies as actionable harassment.

The takeaway for employers – words are sometimes not just words, and businesses should respond to complaints about coarse or vulgar language as they would to any other complaint of harassment. An employer cannot just assume that words are harmless and bury its head in the sand.

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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.