Employers often don’t stand alone in lawsuits – let’s talk about manager and supervisor liability

Ohio’s discrimination law is quirky when compared to its federal counterparts. For one thing, an Ohio employee does not need to exhaust his or her remedies with the Civil Rights Commission before filing a discrimination lawsuit in court. Also, under Ohio law, supervisors and managers can be held personally liable for their own acts of discrimination.

Discrimination laws, however, are not the only laws that provide for this individual liability. Other federal statutes – namely the FLSA, the FMLA, and the Equal Pay Act – also provide for manager and supervisor liability. The FMLA’s regulations [section 825.104(d)] explain why managers and supervisors can be personally liable under these statutes:

An “employer” includes any person who acts directly or indirectly in the interest of an employer to any of the employer's employees. The definition of “employer” in section 3(d) of the Fair Labor Standards Act (FLSA), 29 U.S.C. 203(d), similarly includes any person acting directly or indirectly in the interest of an employer in relation to an employee. As under the FLSA, individuals such as corporate officers “acting in the interest of an employer” are individually liable for any violations of the requirements of FMLA.

This week, a Pennsylvania federal court explained the scope of this individual liability. In Narodetsky v. Cardone Industries (as discussed on law.com), the federal court permitted FMLA claims to proceed against the defendant’s HR manager, benefits manager, and plant manager, as well as its president and CEO. The court concluded that anyone who exercises control over plaintiff in the termination or medical leave decisions can be liable under the FMLA. At least one Ohio federal court – in Mueller v. J.P. Morgan – reached this same conclusion. Extrapolating this rule to the FLSA, individual liability would extend to anyone who exercises control over a pay decision.

Individual liability has significant implications for how employers litigate FMLA and FLSA cases. If a supervisor, manager, or executive is named in a lawsuit, you and your counsel need to determine quickly whether the individual(s) can be represented by the same lawyer as the company, or if there is a conflict. This issue is complicated when an individual has left your organization, and exponentially complicated when the departure was on bad terms.

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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? The duty of loyalty: illegal competition vs. legal preparation

There are right ways and wrong ways for an employee to leave your company. Just because an employee is not subject to a noncompetition agreement does not mean that he or she cannot be liable for mistakes made on the way out the door. In fact, each and every employee owes his or employer a duty of loyalty up to the moment he or she ceases employment.

Your employee may prepare to compete against you while still in your employ without violating this duty of loyalty. There are many reasons why an employee may choose to prepare to compete while still employed. Some need the income provided by ongoing employment. Some want a degree of certainty that their new competitive venture will be ready to operate. Some may derive an eventual competitive advantage from continued association with their present employer (such as knowledge of pricing or business plans, or ongoing associations with key employees, customers, and vendors).

There are certain steps that an employee can legally take to prepare to compete without violating this duty of loyalty, even while still employed and even if done stealthily:

• Incorporating the new firm.

• Arranging for space and equipment.

• Securing financing.

• Making future business plans.

But, those preparation are subject to certain legal limits while still employed. The duty of loyalty prohibits employees from doing any of the following while still your employee:

• Using your property (computers, for instance) to prepare to compete.

• Using confidential information or trade secrets to prepare to compete.

• Starting the competing operation.

• Soliciting employees or customers for the new enterprise.

• Holding back business opportunities or diverting them to the new enterprise.

What can you do to prevent employees from engaging in these illegal activities? Consider these 6 ideas.

1. Require that key employees sign noncompetition agreements.

2. Consider requiring a wider subset of employees sign non-solicitation agreements.

3. Have all employees sign confidential information and trade secret policies, or, at a minimum, incorporate these policies into your employee handbook.

4. Incorporate statements about employee loyalty into the handbook.

5. Do not accept notice periods upon resignation for any employee who you think is a risk to compete.

6. Consider forensic examinations of computers and email accounts for any employee you reasonably believe was engaging in unlawful conduct during his or her employment.

These tips will not magically transform a disloyal employee into your lap dog. They will, however, place you in a position to hold the disloyal employee accountable for his or her actions.

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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.

Is it wrong to “friend” your boss on Facebook?

Mashable reports on a recent survey conducted by Liberty Mutual’s Responsibility Project, in which 56% of Americans reported that “it’s ‘irresponsible’ to friend your boss on Facebook, while 62% of bosses agree it’s wrong to friend an employee.” These numbers simply beg the question – what does your social media policy say about this issue? Here’s 5 suggestions (with attribution for the first three to Molly DiBianca at the Delaware Employment Law Blog):

1. Anything goes. Any employee can friend any other employee regarding of rank or position.

2. Supervisors are prohibited from friending direct reports, but employees can friend their supervisors (who can choose whether to accept the request).

3. Supervisors and their reports cannot be Facebook friends, regardless of who initiates the request.

4. Employees are only permitted to be Facebook friends with their peers. No one can friend anyone higher or lower on the org chart.

5. Employees are expressly prohibited from being Facebook friends with any co-workers, regardless of position.

The option you choose has a lot more to do with your corporate culture than what is legal or illegal. Your choice, however, will impact certain legal issues, such as harassment liability.

Regardless of which option you choose, you should choose one to incorporate into your social media policy. You don’t have a social media policy? To get started, I suggest 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.

WIRTW #116

This morning on The Proactive Employer I had an engaging chat with Stephanie Thomas on the topic of statistics and reduction in force. To listen to or download Stephanie’s podcast, you can visit The Proactive Employer’s website. I also understand that Stephanie’s podcasts are available on iTunes. I also recommend reading Stephanie’s thoughts on Planning and Executing a Reduction in Force: A 10-Point inspection.

Here’s the rest of the best I read this week:

Discrimination & Harassment

• Ricci redux? Supreme Court hears another fire department race case – from Sindy Warren at the Warren & Hays Employment Law Blog

• Family Responsibilities Discrimination Litigation Update 2010 – from WorkLife Law Blog

• Sexual Harassment Investigation: Preserve the Evidence – from Debra Reilly’s Workplace Investigations Blog

• Second Circuit Addresses Effectiveness of Sexual Harassment Policy – from Employer Law Report

Competition & Trade Secrets

• Preparing to Compete with a Former Employer – from Trade Secrets and Noncompete Blog

• Steps to Minimize Chances of a Noncompete Fight – from Employment Law Blog

• Eight ways to guarantee yourself a noncompete lawsuit – from Jay Shepherd’s Gruntled Employees

• Average Trade Secrets Data Theft Costs $2 Million – from Trade Secrets Blog

Wage & Hour

• 5 Tips For Avoiding Wage & Hour Lawsuits – from Becky Regan at Compensation Cafe

• You Can’t Avoid Paying Overtime Wages By Splitting Up An Employee’s Tasks – from Overtime Advisor

• Unclassy Action Lawsuit? – from Abovethelaw.com

• Business Under Assault: Increased Regulations and Enforcement Proposed – from Michael Haberman’s HR Observations

Social Media

• GINA and Social Media – from Adria Martinelli at Delaware Employment Law

• More Jury Instructions to Deal With Social Media in the Courtroom – from Molly DiBianca’s Going Paperless

• Social Media Guidelines and Policies: Do Your Employees Know the Ground Rules Too? – from Dan Schwartz’s Connecticut Employment Law

• Americans time spent on social media sites up 210% in 2009 – from Real Lawyers Have Blogs

Background Checks

• Oregon Legislature Bans Workplace Credit Checks – from Dennis Westlind’s World of Work

• Cleveland Heights Women Forges Background Checks – from Jason Morris at employeescreenIQ Blog

Human Resources

• Two Predictors of a Good Hire: Passion, and How They Treat the Receptionist – from The Business of Management

• The Giving Tree: Treating Talent You've Outgrown with Respect – from Kris Dunn, The HR Capitalist

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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.

Access to federal court just got a little bit easier for corporations

Employers like to be in federal court. According to a recent study by the American Constitution Society, plaintiffs only win 15% of the time on employment discrimination suits in federal court. Thus, it is often critical for employers to have their cases heard in federal court.

Federal courts, however, are courts of limited jurisdiction. There are two main avenues to get a case into federal court—lawsuits premised on a federal statute (known as federal question jurisdiction), and lawsuits with more than $75,000 in controversy where no defendants hail from the same state as any plaintiff (known as diversity jurisdiction). Whenever a party is sued in state court, that party may remove the suit to federal court, provided the federal court would otherwise have jurisdiction.

For purposes of diversity jurisdiction, a corporation is a citizen of its state of incorporation and the state where it has its principal place of business. When a large corporation does business in a number of states, however, determining its “principal place of business” often presents courts with a challenge. On Tuesday, in Hertz Corp. v. Friend, the United States Supreme Court decided what “principal place of business” means:

We conclude that “principal place of business” is best read as referring to the place where a corporation’s officers direct, control, and coordinate the corporation’s activities. It is the place that Courts of Appeals have called the corporation’s “nerve center.” And in practice it should normally be the place where the corporation maintains its head-quarters—provided that the headquarters is the actual center of direction, control, and coordination, i.e., the “nerve center,” and not simply an office where the corporation holds its board meetings (for example, attended by directors and officers who have traveled there for the occasion).

Why is this case important to employers?

1. As noted above, employers like to be in federal court. This case expands employer’s access to federal court by limiting the number of states in which it can be found to be a citizen for diversity purposes. By limiting a corporation’s principal place of business to the corporate nerve center, corporations will be able to remove a greater number of lawsuits.

2. Employers only have 30 days after receipt of a state court lawsuit to remove the case to federal court. The determination of whether to remove a case has to be made quickly. Therefore, it is important to get counsel involved in the litigation as early as possible so that the removal date—which cannot be extended under any circumstances—is not missed.

For additional analysis of this opinion, I suggest the following:

• Identifying corporate “nerve centers” – via SCOTUSBlog

• U.S. Supreme Court Breathes Life Into Removal Statute – via What’s New in Employment Law?

• Today, all 9 Justices embrace a clear rule over a more nuanced and litigation-breeding interpretation – via Althouse

• Nine-Zip for Common Sense – via The California Civil Justice Blog

• Supreme Court Applies "Nerve Center" Approach to Diversity Jurisdiction – via Washington DC Employment Law Update

• The Supreme Court and Federal Jurisdiction Law – via ChamberPost

• High Court Makes it Harder for Plaintiffs to Avoid Federal Court in Contract Cases – via Point of 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.

Calculating the rolling 12-month FMLA leave entitlement

As I’ve previously discussed, the FMLA allows for 4 different ways for employers to calculate its employees’ 12-week leave entitlement:

1. Based on a calendar year.
2. Based on some other defined and fixed 12 month period.
3. Based on the 1st day an employee uses FMLA leave.
4. A rolling 12-month period, measured backward from the date an employee uses any FMLA leave.

There is no doubt that for employers the last option – the rolling 12-month period – is both the administratively burdensome and the most advantageous.

Under this “rolling” 12-month period, each time the employee takes FMLA leave, the remaining leave entitlement is the balance of the 12 weeks that has not been used during the immediately preceding 12 months. The FMLA’s regulations provide some insight into how this works in practice:

For example, if an employee has taken eight weeks of leave during the past 12 months, an additional four weeks of leave could be taken. If an employee used four weeks beginning February 1, 2008, four weeks beginning June 1, 2008, and four weeks beginning December 1, 2008, the employee would not be entitled to any additional leave until February 1, 2009. However, beginning on February 1, 2009, the employee would again be eligible to take FMLA leave, recouping the right to take the leave in the same manner and amounts in which it was used in the previous year. Thus, the employee would recoup (and be entitled to use) one additional day of FMLA leave each day for four weeks, commencing February 1, 2009. The employee would also begin to recoup additional days beginning on June 1, 2009, and additional days beginning on December 1, 2009. Accordingly, employers using the rolling 12-month period may need to calculate whether the employee is entitled to take FMLA leave each time that leave is requested, and employees taking FMLA leave on such a basis may fall in and out of FMLA protection based on their FMLA usage in the prior 12 months. For example, in the example above, if the employee needs six weeks of leave for a serious health condition commencing February 1, 2009, only the first four weeks of the leave would be FMLA-protected.

Choosing the rolling 12-month period will add some administrative burden to your FMLA management, but you will be repaid by the fact that employees cannot double-dip by taking more than 12 weeks of contiguous leave because there should not be an overlap of leave years.

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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? Administrative employees vs. the administrative exemption

Nothing in employment law has a more misleading name than the administrative exemption in the Fair Labor Standards Act. Employers routinely mis-believe that if an employee performs administrative tasks, that employee is exempt from being paid overtime under the FLSA. In fact, the administrative exemption only applies to a narrow group of employees – those whose primary duty is the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer’s customers, and which includes the exercise of discretion and independent judgment with respect to matters of significance.

The following story from the National Law Journal illustrates the risks of confusing employees who perform administrative functions and employees who are exempt under the FLSA:

When legal secretary Karla Osolin used to work at Jones Day, she was paid a salary and overtime.

That's what caused red flags to go up when she took a job in September 2008 with Ohio intellectual property boutique Turocy & Watson. Now the firm faces a suit alleging wage-and-hour violations and stands accused of misclassifying Osolin and many others to avoid paying overtime.

Examples of some professions that the Department of Labor has found could qualify for the administrative exemption include mortgage loan officers, insurance agents, sales managers, marketing analysts, purchasing agents, financial services registered representatives, and loss prevention managers.

These categories are merely guidelines to observe, and not dogma to follow. Whether an administrative employee is administratively exempt is determined on an employee-by-employee basis, even within the same job category within the same organization. The analysis is fact-specific, and should be done by a professional well-versed in these issues.

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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 to avoid employee lawsuits (in 4 easy steps)

Today’s Wall Street Journal offers the following three tips to small business owners to avoid lawsuits by employees:

1. Classify employees properly.
2. Maintain an antidiscrimination and harassment policy.
3. Document, document, document.

These are all excellent points, each of which I have covered here in depth in the past. Let me suggest, however, that each of these considerations are meaningless unless you add a 4th step to this list – Training. Your supervisors and managers need to know:

1. What your overtime policy is and how employees are supposed to be paid.

2. What discrimination and harassment mean, how to recognize them, and what to do upon witnessing it or receiving a complaint.

3. In a judge’s or jury’s eyes, an empty personnel file means that there are no problems with the employee. A blank slate will lead to search for an illegal reason for the termination.

Without this crucial 4th step, you leave a gaping hole to be exploited by employees in the lawsuits that are certain to be filed as a result of mistakes made by your management. Consider hiring a professional to train your managers and supervisors on an annual basis. The training costs are a drop in the bucket as compared to potential legal fees defending lawsuits and funding settlements or judgments.

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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 #115

This week, the EEOC published proposed regulation on the reasonable factors other than age defense under the ADEA. The regulations (available for download as a PDF from Regulations.gov) suggest that the following 6 factors are relevant in
determining whether an employment practice is reasonable:

1. Whether the employment practice and the manner of its implementation are common business practices;

2. The extent to which the factor is related to the employer’s stated business goal;

3. The extent to which the employer took steps to define the factor accurately and to apply the factor fairly and accurately (e.g., training, guidance, instruction of managers);

4. The extent to which the employer took steps to assess the adverse impact of its employment practice on older workers;

5. The severity of the harm to individuals within the protected age group, in terms of both the degree of injury and the numbers of persons adversely affected, and the extent to which the employer took preventive or corrective steps to minimize the severity of the harm, in light of the burden of undertaking such steps; and

6. Whether other options were available and the reasons the employer selected the option it did

Factors relevant in determining whether a factor is ‘‘other than age’’ include:

1. The extent to which the employer gave supervisors unchecked discretion to assess employees subjectively;

2. The extent to which supervisors were asked to evaluate employees based on factors known to be subject to age based stereotypes; and

3. The extent to which supervisors were given guidance or training about how to apply the factors and avoid discrimination.

For more on these new regulations, check out the following:

• EEOC’s Proposed Age Discrimination Regulation Introduces Practical Significance –Stephanie R. Thomas

• EEOC Proposes New Age Discrimination Regulations – Dennis Westlind’s World of Work

• Proposed EEOC Rule on ADEA Defenses – Workplace Prof Blog

• EEOC Addresses Scope of Reasonable Factors Other than Age Defense Under the ADEA – Washington D.C. Employment Law Update

As to the rest of the week’s best employment-related thoughts…

Non-Competition Agreements

• Do You Know the Muffin Man? Bimbo Prevents Him From Switching Jobs – Dan Schwartz’s Connecticut Employment Law

• Dunkin’ Donuts Sued by Alleged Drunkin’ Ex-Exec – Philip Miles’s Lawffice Space

• Rethinking noncompetes – Jay Shepherd’s Gruntled Employees

• Burning Bridges Upon Departure: It May Feel Good, but It’s Bad Form – The Business of Management

Disability (and related) Discrimination

• An Employee Need Not be Disabled to Pursue ADA Claim – Warren & Hays Employment Law Blog

• Proposed Changes to Psychiatric Manual Stir Lawsuit Fears – Walter Olson’s Overlawyered

• The 7 Most Common Mistakes Employers Make Under GINA – Greg Gordillo

Miscellaneous

• Here’s a Novel Idea: Read Your Own Company Handbook – Mindy Chapman’s Case In Point

• Personnel Files: Review Before or After Interview, or Not at All? – Debra Reilly’s Workplace Investigations Blog

• Use the anchoring bias to buoy up performance in mediation – Work Matters

• Waiting Time is Often Work Time … and Must be Paid – Overtime Advisor

• Privacy in the Workplace: E-Mail Does Not Equal Texting – Michael Haberman’s HR Observations

• Alabama Shooting and Background Checks – The Word by John Phillips

• Model Jury Instructions Deal With Social Media Head On – Molly DiBianca’s Going Paperless

• In federal employment discrimination claims, race and sex of judges matter (a lot) – David Yamada’s Minding the Workplace

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

Ohio’s efforts to create its own WARN Act hit all the wrong notes

Ohio House Bill 434 – which would require employers to give advanced notice of mass layoffs, worksite closings, and transfers of operation – is currently pending in the House Commerce and Labor Committee. The bill would create a maxi-WARN for Ohio employers, and goes above and beyond the requirements of the federal WARN statute:

• Where WARN requires 60 days notice of mass layoffs of plant closures, HB 434 requires 90.

• HB 434 requires 120 days notice for employment losses of 250 or more employees.

• HB 434 defines “affected employee” and “employment loss” more broadly than the federal WARN Act.

• HB 434 expands the depth of information require in the written notice, including  to the written notice required by the federal WARN Act.

The killer provisions in the bill, however, are the damages and penalties, which are severe:

• Double back pay for each calendar day of the violation, plus

• The value of benefits from the employer’s employee benefit plan for the entire advance notification period, including the cost of medical expenses that the employee incurred during the employment loss that would have been covered under the employee benefit plan if the employment loss had not occurred, plus

• Other economic damages and exemplary damages suffered by the affected employee and caused by the violation, plus

• Reasonable attorney’s fees and costs, plus

• Civil penalties of $500 for each calendar day of the violation multiplied by the number of employees who suffered an employment loss, increased to $1,000 if the employer acted in bad faith through intentional, willful, or reckless conduct.

Moreover, under the federal WARN Act, an employer can pay in lieu of giving notice. In other words, instead of giving 60 days notice, the employer can simply pay the affected employees 60 days of severance pay, and effectively avoid liability. HB 434 limits an employer’s ability to pay in lieu. An employer cannot pay in lieu (and avoid liability) if:

1. The payments were voluntary and unconditionally paid in an amount that is less than the value of the wages and benefits to which the affected employee was entitled during the notice period; or

2. The payments were made pursuant to contractual obligations of the employer.

If passed, this bill would be disastrous for Ohio’s efforts to recover economically. As the last 18 months have shown us, businesses sometimes have to layoff employees or close their doors. Because this law will make it impossible for businesses to do so without a severe economic penalty, it will act as a strong disincentive for businesses to open in, expand in, or relocate to our state.

Everyone feels badly about good people losing jobs because of the economy. The answer, though, is to create an environment to fosters job growth, not one that erects a fence at our border to keep businesses – and jobs – out.

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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.

“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.