WIRTW #122

May 4 is primary election day in Ohio. In Cuyahoga County, there are 5 contested Democratic judicial primaries – 2 in common pleas court, and 1 each in the court of appeals, domestic relations court, and juvenile court. Judge4Yourself.com is an online repository of 4 local bar associations’ independent and impartial ratings of the candidates. Do you need a reason why it is important to educate yourself? Of the 21 candidates running in contested elections, the Cleveland Metropolitan Bar Association rates only 6 as “Excellent,” while another third are “Not Recommended.” If you plan to vote in the primary, please click over to Judge4Yourself.com’s ratings. You will appreciate the time spent reading if you or someone you know if ever a litigant in Cuyahoga County.

Here’s the rest of what I read this week.

Wage & Hour

• Will “We Can Help” Really Help, or Hurt? from Darcy Dees at Compensation Cafe

• Five Steps to Diminish Wage & Hour Problems from Michael Haberman’s HR Observations

• Federal Court Rules Plaintiffs Seeking Class Certification May Not Rely on Employers’ Job Descriptions and Uniform Exemption Policies to Satisfy Predominance of Issues from Wage & Hour Counsel

Discrimination

• Simple strategies for avoiding employment claims from Jennifer Hays at Warren & Hays Employment Law Blog

• EEOC Warns Employment Credit Reports Could Pose Bias Risk from Nick Fishman at employeescreenIQ Blog

• Desperate Housewife Sues Abusive Boss For Hostile Work Environment from UndercoverLawyer

• Are Tea & Coffee Parties Happening in Your Office? from Brian Molinari at Prima Facie Law Blog

• Is the EEOC Getting Interested in Disparate Impact Claims? from Texas Employment Law Update

• San Francisco Chronicle Op-Ed: Data Espionage A Major Issue Facing U.S. from Trade Secrets Blog

• Downsizing & Data Loss - The Alarming Connection from Hunton Employment & Labor Law Perspectives™

• Credit, Education and EEOC — Tip of the Week from The Word on Employment Law with John Phillips

• Medical intern unable to perform the essential functions of a first-year resident could not support ADA claim from Employment Law Matters

Social Media

• Repository of Model Jury Instructions re: Social Media from Molly DiBianca’s Going Paperless

• You Really Need A Social Media Policy For Your Workplace! from Minnesota Labor & Employment Law Blog

• A caution about recruiting through social media from HR Cafe

• Employers Incur Risk if they Pursue Action Against an Employee for Off-Duty Web Comments from Tom Crane’s San Antonio Employment Law Blog

Litigation

• Finesse the Impasse by Changing the Deal: Advice from a Former Disney GC from Victoria Pynchon’s Settle It Now Negotiation Blog

• How to Keep People Like Me Out of Your Workplace, Part 1 and Part 2 from HR Daily Advisor

Labor Law

• Union Salts vs. Union Moles: IBEW Updates Members on ‘Union Salting Possibilities’ from LaborUnionReport.com

• With a new NLRB, wholesale reversals? from PointOfLaw Forum

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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.

Department of Labor targets enforcement of rules against unpaid internships

More than a year ago, I cautioned employers about the legal risks of unpaid internships. At the time, I wrote that the Department of Labor uses a six-factor test to determine whether an intern is an employee in disguise, who must be paid. All six of the following factors must be met before an employer can legally refuse pay to an intern:

1. Is the training similar to what would be given in a vocational school or academic educational instruction?
   
2. Is the training for the benefit of the trainees or students?
   
3. Do the trainees or students work under their close observation of regular employees without displacing them?
   
4. Does the employer derive no immediate advantage from the activities of the trainees or students, and on occasion are the employer’s operations actually impeded?
   
5. Are the trainees or students not necessarily entitled to a job at the conclusion of the training period?
   
6. Do the employer and the trainees or students understand that the trainees or students are not entitled to wages for the time spent in training?
   

Last week, Steven Greenhouse wrote in the New York Times that state and federal agencies are beginning to use these factors to crack down on for-profit businesses that use the services of unpaid interns:

The Labor Department says it is cracking down on firms that fail to pay interns properly and expanding efforts to educate companies, colleges and students on the law regarding internships. 

“If you’re a for-profit employer or you want to pursue an internship with a for-profit employer, there aren’t going to be many circumstances where you can have an internship and not be paid and still be in compliance with the law,” said Nancy J. Leppink, the acting director of the department’s wage and hour division.

Employers that use unpaid interns should pay careful attention to this issue. Better to scrutinize your interns under these six factors before the Department of Labor swoops in and does it for you. Even better to formalize the relationship in a written Internship Agreement that formally spells out how each of these six questions are answered in your favor.

I also recommend you have a look at what others have said on this important wage and hour compliance issue: Overlawyered, ABA Journal Daily News, Lawffice Space, The Word on Employment Law with John Phillips, Manpower Employment Blawg, The HR Capitalist, Abovethelaw.com, Warren & Hays Employment Law Blog, Workplace Prof Blog, Minding the Workplace, and The Business of Management.

Illustrating the duty of loyalty

About a month ago I wrote about the an employee’s duty of loyalty to his or her employer. Here’s some of what I said:

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.

Two recent stories illustrate how this duty of loyalty works in the real world:

• This morning, The Word on Employment Law with John Phillips commented on a New York Times report that MSNBC indefinitely suspended one of its most prominent anchor David Shuster. His transgression – testing a new show for CNN.

• Molly DiBianca at the Delaware Employment Law Blog and Rob Radcliff’s Smooth Transitions both provide their takes on a recently filed non-competition lawsuit in which the chief evidence of the breach comes from the defendants’ LinkedIn accounts.

Even without non-competition agreement, an employee cannot serve two masters at the same time. While in your employ, an employee has an absolute duty to act in your best interest, and not to act in the interest of anyone else that is contrary to yours. For example, an employee cannot solicit customers or employees for a competing venture while still working for you. If you find out that a current employee might be competing, your best course of action:

1. Call your attorney.
2. At a minimum, suspend the employee pending an investigation, which should also include suspension of all computer and network access.
3. Upon confirmation of the competition, convert the suspension to a termination.
4. Consider legal action depending upon the scope of the competition and the harm caused.

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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 employers need to know about EEOC investigations

You’ve just received notice from the EEOC (or its state equivalent, the OCRC, for example) that an employee has filed a charge of discrimination against you. What happens next is often confusing to businesses, and mistakes can have serious consequences in later lawsuits.

Let’s start with the basics – what happens when a charge has been filed against you?

1. The EEOC will notify you that a charge of discrimination has been filed against you. The charge packet will include the name and contact information of the investigator assigned to your case.

2. The charge will likely include a offer to submit the case to voluntary mediation. Mediation can be useful for two purposes – to see if you can resolve the charge early and cost-effectively, or to obtain early informal discovery from the charging party.

3. Absent mediation, the case will proceed to an investigation. During the investigation, you will be required to submit a written statement of position. This document is your chance to tell your side of the story. It is the most critical piece of the agency investigation. More on this in a bit.

4. The investigation will may also include a request for information (documents), a request for an on-site visit, or contact information for witness interviews of management and non-management personnel. Do not assume, however, that you have to turn documents over, open up your business, or make people available simply because the agency is asking. The requests still must comply with basic notions of relevancy and discoverability.

5. Once the investigator has completed the investigation, the EEOC will make a determination on the merits. If EEOC determines that there is no reasonable cause to believe that discrimination occurred, the charging party will be issued a letter called a Dismissal and Notice of Rights that tells the charging party of the right to file a lawsuit in federal court within 90 days from the date of receipt of the letter, with a copy to the employer.

6. If EEOC determines there is reasonable cause to believe discrimination has occurred, both parties will be issued a Letter of Determination stating that there is reason to believe that discrimination occurred and inviting the parties to resolve the charge through an informal conciliation process. If conciliation fails, the EEOC has the authority to file a lawsuit in federal court or issue the same Notice of Right to Sue, releasing the employee to file his or her own lawsuit within 90 days. The process is differently with the OCRC, which ends with a formal administrative hearing and a right to appeal to common pleas court. Also, under Ohio’s civil rights laws the employee always has the right to bypass the agency and proceed directly into court.

There is an inclination within companies to go it alone in EEOC and other agency proceedings, believing that the expense of hiring an attorney is not justified at this early junction. I cannot more strongly caution against this urge.

As I said above, the statement of position is the critical piece of the agency investigation. It not only tells your story, but it locks in your story because it is discoverable by the employee in a later lawsuit. One of the easiest ways to create a jury question on the issue of pretext and lose a summary judgment motion is to give a reason for termination different than that set out in your EEOC position statement.

You should assume that every charge – no matter the merit – will turn into a lawsuit. Employment litigators can interview witnesses, review policies and personnel files, and make decisions as to your best defense. Not involving an attorney as early as your first receipt of the charge of discrimination can cost valuable insight into your best effort to win the case.

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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.

Update your Technology Policy to account for personal, web-based email

Last week I discussed Stengart v. Loving Care Agency, which held that employees had a reasonable expectation of privacy in the personal, password-protected, web-based email account accessed on the company-owned computer. Stengart may not be an Ohio case, but it teaches some important lessons that all employers should take to heart when putting in place a technology or e-communications policy. In light of this case, the following is an update to my prior post, 10 tips for drafting a workplace technology policy, with five more things to consider for your policy:

1. Warn all employees that the use of all electronic resources is monitored, and that employees have no expectation of privacy in communications transmitted using company-owned resources or over the company network.

2. Explain to employees that copies of messages sent and received through a personal, web-based email account on a company-owned computer could be stored on that computer.

3. Inform employees that the has the discretion to review all communications sent or received via company-owned equipment, regardless whether a personal account is used, but subject to laws regarding attorney-client and other privileged communications.

4. Restrict employees from using of any company technology to communicate with a personal attorney.

5. Disclose that violations of the policy – including the prohibition on communications with a personal attorney – will be punished by discipline up to and including termination.

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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 #121

This week’s summary follows-up on two important stories I wrote about this week – mandatory lactation breaks, and Craig Becker’s recess appointment to the NLRB, plus some other stuff.

Lactation Breaks

• FLSA Amended to Require Breaks for Mothers to Express Breast Milk – from Washington D.C. Employment Law Update

• Health Care Bill Easter Eggs – from Lawffice Space

• Who knew the health reform legislation amended the Fair Labor Standards Act? – from Wage & Hour Defense Blog

• New federal law requires unpaid breaks for nursing mothers – from Kiernan’s Corner: Preventive Law for Employers

• Secrets of Health Care Reform – from The Word on Employment Law with John Phillips

• Texas Employers Must Provide Breaks for Breastfeeding Mothers – from Texas Employment Law Update

• New Health Care Bill Adds Federal Rights Regarding Lactation / Breast Pumping in Workplace; Conn. Law Unchanged – from Connecticut Employment Law Blog

• Exposing Breasts in the Workplace: Part of Healthcare! – from HR Observations

• FLSA Now Requires Breastfeeding Breaks and a Place to Take Them – from Delaware Employment Law Blog

• Lactation / Breast Pumping Rights At Work Contained in the Patient Protection and Affordable Care Act – from Fitzpatrick on Employment Law

Labor Law

• Why the NLRB Recess Appointments Can Be Good For Employers – from Dan Schwartz’s Connecticut Employment Law Blog

• The NLRB in Transition - Whither Board Law? – from EFCA & Labor Law Reform Blog

• Becker Hysteria and Union Avoidance – from The Word on Employment Law with John Phillips

• Strategy Alert: Too Few Workers and Union Activity – from Michael Haberman’s HR Observations

Social Networking & Technology

• Sure, You Can Use Facebook at Work …  We’ll Just Monitor What You Post – from Molly DiBianca’s Delaware Employment Law Blog

• Employment Law Considerations: Employee Use of Geolocation Services – from Social Networking Law Blog

• Work Email belongs to the Employer – from San Antonio Employment Law Blog

• CNN: Facebook and Job Seekers – from employeescreenIQ Blog

FMLA

• Workplace Flexibility – from Workplace Prof Blog

• Ninth Circuit: Judges Must Decide Front Pay Awards In FMLA Cases – from Hunton Employment & Labor Law Perspectives™

• How to handle those rare employees who abuse FMLA – from HR Cafe

• History of permitting FMLA leave grounds airline's defense to ADA claim – from Work Matters

Wages & Benefits

• How Does the Heath Care Reform Package Impact Employers? – from World of Work

• Officers Not Entitled to Pay For Donning And Doffing Uniforms, Ninth Circuit Rules – from Wage & Hour Counsel

• Proper Arbitration Agreements May Prevent FLSA Class Action Suits – from Overtime Advisor

Trade Secrets & Competition

• Just the Stats Please! New Study Provides Statistical Snapshot of Federal Court Trade Secret Litigation – from Trade Secrets and Noncompete Blog

• Caught Red Handed with LinkedIn – from Rob Radcliffs’ Smooth Transitions

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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.

DOL: “We can help.” Employers: “Don’t do us any favors.”

I just received the following email from the Department of Labor:

Today, the Secretary of Labor and the Deputy Administrator of the Wage and Hour Division officially launched a national public awareness campaign called “We Can Help.” This public awareness effort is intended to provide workers with information about their rights in the workplace and to educate them on how to seek the assistance of the Wage and Hour Division when they believe that they have been the subject of a violation.

The campaign includes a launch of a new Web site at http://www.dol.gov/wecanhelp.

It is telling that the most prominent part of this website is a section entitled, “How to File a Complaint.” While it has now been fixed, the website initially identified itself as the “Wage and Hour Devision.” We litigators call that an admission against interest.

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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.

NJ Supreme Court hampers corporate email surveillance

Employers generally think that they own and control all data that passes through their computer networks, whether work-related or personal to an employee. Earlier this week, in Stengart v. Loving Care Agency [pdf], the New Jersey Supreme Court issued a landmark decision that should concern all businesses, and could greatly inhibit employers’ ability to monitor how employees use workplace technology for personal reasons.

Consider the following facts. You issue a manager a company-owned laptop. The employee – who is not technologically savvy – does not realize that the Internet browser automatically saves on the hard drive a copy of each web page viewed. During her employment, the employee uses the computer to contact her attorney using her personal, web-based, password protected Yahoo email account. She did not save her private login or password on the computer. After she quit and returned the laptop, she sues for discrimination. You are able to extract, via a computer forensic expert, the emails she sent to her attorney. When you turn over in discovery copies of those emails, it hits the fan.

You rely on the following Electronic Communication Policy for your belief that the employee had relinquished any expectation of privacy over the personal emails stored on the company-owned computer:

The company reserves and will exercise the right to review, audit, intercept, access, and disclose all matters on the company’s media systems and services at any time, with or without notice.…

Email and voice mail messages, internet use and communication and computer files are considered part of the company’s business and client records. Such communications are not to be considered private or personal to any individual employee.

The principal purpose of electronic mail (email) is for company business communications. Occasional personal use is permitted; however, the system should not be used to solicit for outside business ventures, charitable organizations, or for any political or religious purpose, unless authorized by the Director of Human Resources.

The Policy also specifically prohibits “certain uses of the email system” including sending inappropriate sexual, discriminatory, or harassing messages, chain letters, “[m]essages in violation of government laws,” or messages relating to job searches, business activities unrelated to the employment, or political activities. The Policy concludes with the following warning: “Abuse of the electronic communications system may result in disciplinary action up to and including separation of employment.”

The court in Stengart held that the employee had a reasonable expectation of privacy in the personal, password-protected, web-based email account accessed on the company-owned computer.

• The employee subjectively expected the emails to be private because she used a personal, password-protected email account instead of her company email address, and did not store the account’s password on the computer.

• The expectation of privacy was also objectively reasonable, because the Policy does not address the use of personal, web-based email accounts, and does not warn employees that the contents of emails sent via personal accounts can be forensically retrieved and read by the company. Moreover, by permitting occasional personal use, the Policy created doubt over who owns the emails.

The following language – which suggests that regardless of the policy language used, the ability of employers to peer into employees’ private, web-based email is severely restricted – is probably the most important part of the opinion for employers.

The Policy did not give Stengart, or a reasonable person in her position, cause to anticipate that Loving Care would be peering over her shoulder as she opened emails from her lawyer on her personal, password-protected Yahoo account….

[This] does not mean that employers cannot monitor or regulate the use of workplace computers. Companies can adopt lawful policies relating to computer use to protect the assets, reputation, and productivity of a business and to ensure compliance with legitimate corporate policies. And employers can enforce such policies. They may discipline employees and, when appropriate, terminate them, for violating proper workplace rules that are not inconsistent with a clear mandate of public policy…. For example, an employee who spends long stretches of the workday getting personal, confidential legal advice from a private lawyer may be disciplined for violating a policy permitting only occasional personal use of the Internet. But employers have no need or basis to read the specific contents of personal, privileged, attorney-client communications in order to enforce corporate policy. Because of the important public policy concerns underlying the attorney-client privilege, even a more clearly written company manual – that is, a policy that banned all personal computer use and provided unambiguous notice that an employer could retrieve and read an employee’s attorney client communications, if accessed on a personal, password protected email account using the company’s computer system – would not be enforceable.

On Monday, I’ll be back with my thoughts on the lessons of this case and how to incorporate them into your Electronic Communications Policy.

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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.

Department of Labor issues game-changing guidance on the administrative exemption and loan officers

In February, I discussed the application of the Fair Labor Standards Act’s administrative exemption, and made the point that whether an administrative employee is administratively exempt is determined on an employee-by-employee basis. Despite this fact-specific analysis, mortgage loan officers comprised one category of administrative professionals that the Department of Labor has historically found to be covered by the administrative exemption. Last week, however, the DOL issued a game-changing opinion (Administrator’s Interpretation No. 2010-1), in which it concluded that “employees who perform the typical job duties of a mortgage loan officer do not qualify” as exempt administrative employees:

A careful examination of the law as applied to the mortgage loan officers’ duties demonstrates that their primary duty is making sales and, therefore, mortgage loan officers perform the production work [as opposed to administrative work] of their employers.

This pronouncement important for three reasons:

1. This Interpretation is a stark departure from conventional wisdom, and will likely cause an upheaval in how lenders pay their loan officers.

2. The DOL has discontinued issuing detailed Opinion Letters in response to specific inquiries from the public. Instead, the Administrator of the Wage & Hour Division will issue formal Administrator Interpretations that are intended to give across-the-board interpretations of general wage and hour issues. If this first Interpretation is any indication, the Administrator will focus on areas of the law that are the most confusing or frequently litigated. These Administrator Interpretations, though, should carry the same import as the former Opinion Letters.

3. The Department of Labor has swung with the political winds. Even before January 20, 2009, wage and hour was a minefield for employers, but at least you could usually see where the mines were. Now, they are all hidden, waiting for even the most diligent of employers to detonate one. 

Many of my blogging compatriots have shared their own thoughts on this issue:

• Wage & Hour Defense Blog
• Wage & Hour Counsel
• Washington D.C. Employment Law Update
• The Word on Employment Law with John Phillips
• Connecticut Employment Law Blog
• Employer Law Report
• Fair Labor Standards Act Law
• Smart HR Manager News
• California Labor and Employment Defense Blog
• Fitzpatrick on Employment Law
• Wage & Hour Counsel
• Texas 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.

Do you know? Healthcare bill requires lactation breaks

This morning I’m updating and synergizing two of last week’s posts: Do we really need to pump up workplace lactation rights? and House passes Health Care Bill – What does this mean for employers?

Section 4207 [pdf] (on page 1217) adds a new provision to the Fair Labor Standards Act, which will require employers to provide reasonable unpaid breaks for nursing mothers. Specifically:

• Unpaid breaks must be provided each time a lactating employee needs to express breast milk for up to 1 year after the child’s birth.

• The employer must provide the employee with a place that is shielded from view and free from intrusion from coworkers and the public other than a bathroom.

• These requirements are mandatory for employers with 50 or more employees.

• Employers with less than 50 employees are exempt upon a showing that the requirements impose an undue hardship by causing the employer significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s business.

Because federal law now requires most employers to provide lactation breaks, it’s clear that we do not need a state law raising lactation to a protected class.

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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.

Bill seeks to snuff out discrimination against smokers

Take a look at H.B. 470, introduced last week in Ohio’s legislature. It provides: “No employer shall discharge without just cause, refuse to hire, or otherwise discriminate against any person with respect to hire, tenure, terms, conditions, or privileges of employment, or any matter directly or indirectly related to employment, on the basis that the person smokes tobacco.” In other words, it would make “smoking” a protected class, akin to race, sex, disability, etc. The law would protect an employer’s right to adopt and enforce rules prohibiting employees from smoking tobacco, or smelling like tobacco smoke, during the work hours.

As is the case with most anti-discrimination laws, this bill provides for the right to file a lawsuit and recover damages for violations. But, here’s where this bill gets really silly. In addition to civil damages, it also provides for escalating fines of $25,000 for the first offense, $50,000 for the second, and $100,000 for each thereafter.

This law would not be an anomaly. In fact, 29 states plus the District of Columbia have laws that elevate smoking to a protected class. The fact that a majority of states protect smokers as a protected class merely begs the question of whether these laws make good policy.

Compensation Today offers three reasons against a blanket ban on the employment of smokers, and a suggested best-practice:

1. Like any policy that regulates off-duty conduct, it is difficult to enforce. (Do you really want to run around sniffing your employees for telltale signs of smoking, as they walk in the door each morning?)
2. You may find that the employee smoking policy limits your pool of qualified job applicants, especially among certain age groups, crafts, or professions.
3. Even nonsmokers sometimes resent these policies, on principle, as unwarranted intrusions into employee private affairs.

A better approach is to design a workplace smoking policy that regulates smoking in a manner that fits your legitimate business needs. Typically, this approach addresses how to deal with employee smoke breaks more effectively, and involves the discipline of those who abuse break time. And, if you cannot make health insurance distinctions, consider including smoking cessation programs in any health and wellness initiatives you sponsor.

While this proposed middle ground seems reasonable, employers should be free to control health care costs by enacting policies against self-inflicted harm, even if it may single out a class of employees. This situation is different than employers that use high medical costs as a proxy for disability discrimination. While smoking may be an addiction, it is one that started by a personal choice. We do not need to legislate against employment decisions based on a legitimate reason (high health care costs) that do not implicate a congenital characteristic.

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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.

Updated – Breaking News: Obama makes recess appointment of Craig Becker to the NLRB

A few weeks ago I asked, “Who is Craig Becker and why should you care?” It looks like we are all about to find out. President Obama has made Mr. Becker a recess appointment to the NLRB, along with another Democratic nominee. The lone Republican nominee has been left on the sidelines.

For more coverage of this important story, I recommend the following, all who have coverage:

• The Chamber Post
• LaborUnionReport.com
• LawMemo
• EFCA Report
• Jottings By An Employer’s Lawyer
• Washington Labor & Employment Wire
• Workplace Prof Blog
• Manpower Employment Blawg
• LaborPains.org
• Washington DC Employment Law Update
• HR Lawyer’s Blog
• The Employment Law Post
• Hunton Employment & Labor Perspectives
• The Ohio Labor Lawyers
• Workplace Horizons
• American Rights at Work
• Wyatt Employment Law Report
• PointofLaw.com
• Employer Law Report
• World of Work
• New York Labor & Employment Law Report

I am certain others will have more to say on this story as the week goes on. I’ll continue to update this post with new links as they become available.

 

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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 #120

Last July, I reported on Kasten v. Saint-Gobain Plastics, in which the 7th Circuit held that the anti-retaliation provision of the Fair Labor Standards Act does not cover unwritten, verbal wage and hour complaints. At the time, I said:

Employers should not get overly excited about this decision. The 7th Circuit’s holding in Kasten appears to be the minority view. Indeed, the 6th Circuit [has] found that an employee’s oral complaints to a supervisor were protected. Employers act at their own peril if they fire employees who make oral wage and hour internal complaints.

This week, the Supreme Court agreed to review the Kasten decision. Some time next year we’ll get the final say on whether the FLSA covers oral complaints. In the meantime, here’s what my fellow bloggers have to say about this important development:

• Retaliation and the FLSA: U.S. Supreme Court Grants Cert – from Molly DiBianca at the Delaware Employment Law Blog

• SCOTUSblog

• Supreme Court to Decide Whether Complaint Must be Written in Order to Be Covered under the FLSA's Anti-Retaliation Provision – from Wage & Hour Counsel

• Supreme Court to Decide Whether Complaint Must be Written in Order to Be Covered under the FLSA's Anti-Retaliation Provision – from Washington D.C. Employment Law Update

• Retaliation for Oral Wage Complaints Now up to the Supreme Court – from Maryland Employment Law Developments

• Supreme Court To Hear Another Retaliation Case: Do Oral Complaints Receive Protection – from Dan Schwartz’s Connecticut Employment Law Blog

• Supreme Court Grants Cert in Saint Gobain FLSA Case – from Paul M. Secunda at the Workplace Prof Blog

• Kasten v. Saint-Gobain Performance Plastics Corp., No. 09-834 (U.S. S. Ct. Mar. 22, 2010) – from Daily Developments in EEO Law

• Oral Complaints as Protected Conduct Under the FLSA – from Fitzpatrick on Employment Law

• SCOTUS to decide whether oral complaint is protected conduct under FLSA ant-retaliation provision – from LawMemo Employment Law Blog

• Another Retaliation Case in the Supreme Court: Deja Vu All Over Again? – from Michael Fox’s Jottings By An Employer's Lawyer

The other big story of the week – also at the Supreme Court – was the oral argument in New Process Steel v. NLRB, which will decide the legality of decisions rendered over the last couple of years by a two-member NLRB. The following blogs have this issue covered from every angle:

• NLRB Member Schaumber Expresses Concern, Suggests Alternative Labor Law Reforms – from EFCA Report

• Supreme Court Hears Oral Arguments Over Legality of Two-Member NLRB Decisions – from Washington Labor & Employment Wire

• 2-Member NLRB Hits SCOTUS – from Lawffice Space

• Reading the Tea Leaves of New Process Steel Oral Argument – from Workplace Prof Blog

• SCOTUS oral argument on authority of two-Member NLRB to decide cases – from LawMemo Employment Law Blog

In other developments this week…

Social Media

• Who's the Mayor of Your Company? What Employers Need to Know About Location-Based Networks Like Foursquare – from Dan Schwartz’s Connecticut Employment Law Blog

• Facebook More Popular Than Google: E-discovery Implications – from Ride The Lightning

• Social Media Sites: A Useful Tool For Exposing Violent Employees? – from Prima Facie Law Blog

Labor Relations

• Looking More Likely Becker Will Be Recessed Appointed to the NLRB – from Workplace Prof Blog

• BREAKING: Sen. Tom Harkin Confirm’s Craig Becker Easter Recess Appointment to NLRB – from LaborUnionReport.com

• Reports Claim Craig Becker Likely to Receive Recess Appointment – from Washington D.C. Employment Law Update

• NLRB Nominee Craig Becker Back in the Spotlight – from WorkplaceHorizons

Harassment & Investigations

• Top 10 Workplace Investigation Snafus and Fubars (Part 1) andTop 10 Workplace Investigation Snafus and Fubars (Part 2) – from Minnesota Labor & Employment Law Blog

• When it comes to harassment complaints, too little too late can be fatal – from Sindy Warren at the Warren & Hays Employment Law Blog

EEO & Discrimination

• $10K to be had “just by rattling the saber of age discrimination” – from Overlawyered

• Diversity Training Gone Wrong? – from The Word on Employment Law with John Phillips

• The Importance of Statistical Evidence - Randall v Rolls Royce – from Stephanie R. Thomas, Ph.D.

• Inquiry into Person’s Medical History can Result in a Private Right of Action – from San Antonio Employment Law Blog

HR Stuff

• Business Travelers Are Landing In Hot Water At Work – from Workplace Diva

• Let’s Stop Blaming Lawyers For Business Decisions – from YourHRGuy.com

• 12 Management Mistakes That Make a Lawyer’s Day – 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.

A little courtesy goes a long way

On Sunday I drove my in-laws down to Columbus for Ohio State’s graduation. Upon arriving at the Schottenstein Center, stopped to ask a traffic-directing cop if I could turn in for disabled parking. He asked to see the handicapped placard, which my father-in-law showed him. The cop followed with the following, in the most patronizing and condescending voice possible: “Do you see that little hole at the top? That’s so you can hang it from your mirror so I can see it and don’t have to ask you for it.” That’s 25 more words than it would have taken him to simply say, “Thank you sir. Turn here.”

There is a lesson to be learned from this little parable. It often takes a lot more effort to be an ass than it does to be nice. The next time you feel bothered by something an innocently-intentioned employee says or does, think of this story. And then think of which response will more likely result in resentment and division, emotions that lead employees to sue or form unions. And then rethink your response.

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

Ohio Supreme Court (finally) upholds the constitutionality of a workplace intentional tort statute

In two anticipated opinions, the Ohio Supreme Court has finally found an intentional tort statute that passes muster under Ohio’s constitution. The opinions – Stetter v. R.J. Corman Derailment Servs. and Kaminski v. Metal & Wire Prods. Co. – confirm the constitutionality of R.C. 2745.01. This statute provides:

(A) In an action brought against an employer by an employee, or by the dependent survivors of a deceased employee, for damages resulting from an intentional tort committed by the employer during the course of employment, the employer shall not be liable unless the plaintiff proves that the employer committed the tortious act with the intent to injure another or with the belief that the injury was substantially certain to occur.

(B) As used in this section, “substantially certain” means that an employer acts with deliberate intent to cause an employee to suffer an injury, a disease, a condition, or death.

(C) Deliberate removal by an employer of an equipment safety guard or deliberate misrepresentation of a toxic or hazardous substance creates a rebuttable presumption that the removal or misrepresentation was committed with intent to injure another if an injury or an occupational disease or condition occurs as a direct result.

To understand the importance to Ohio’s businesses of these decisions and the statute they uphold, we first need to take a little trip back in time to see where we’ve been. Workers’ compensation generally provides employers with immunity from civil lawsuits for workplace injuries. A limited exception exists for what is known as an “intentional tort.” The Ohio Supreme Court first recognized this exception in 1982 in Blankenship v. Cincinnati Milacron Chems., Inc. Supreme Court developed this theory over the years in in cases such as Jones v. VIP Dev. Co., Van Fossen v. Babock & Wilcox Co., and Fyffe v. Jeno’s, Inc.

Under these prior cases, to establish the requisite “intent” for a workplace intentional tort, one would have to show:

1. knowledge by the employer of the existence of a dangerous process, procedure, instrumentality or condition within its business operation;
2. knowledge by the employer that if the employee is subjected by his employment to such dangerous process, procedure, instrumentality or condition, then harm to the employee will be a substantial certainty; and
3. that the employer, under such circumstances, and with such knowledge, did act to require the employee to continue to perform the dangerous task.

As the Fyffe court further explained:

To establish an intentional tort of an employer, proof beyond that required to prove negligence and beyond that to prove recklessness must be established. Where the employer acts despite his knowledge of some risk, his conduct may be negligence. As the probability increases that particular consequences may follow, then the employer’s conduct may be characterized as recklessness. As the probability that the consequences will follow further increases, and the employer knows that injuries to employees are certain or substantially certain to result from the process, procedure or condition and he still proceeds, he is treated by the law as if he had in fact desired to produce the result. However, the mere knowledge and appreciation of a risk – something short of substantial certainty – is not intent.

On at least two occasions after Fyffe, the Ohio Supreme Court struck down as unconstitutional statutes that attempted to tighten the Van Fossen/Fyffe common law rules for workplace intentional torts. Thus, until the enactment in 2005 of the current R.C. 2745.01, courts often liberally applied the the Van Fossen and Fyffe decisions to remove a variety of workplace accidents and injuries from the workers’ compensation system and hold employers liable in tort.

This week’s decisions in Stetter and Kaminski upholding R.C. 2745.01 as constitutional are huge victories for employers. Van Fossen and Fyffe’s fuzzy “substantial certainty” standard, which courts liberally applied to the detriment of many employers, has been conclusively replaced with a much tighter statute. Now, all workplace injuries are covered by the workers’ compensation system unless the employer deliberately intended to injure the employee. The Ohio Supreme Court has reaffirmed that workers’ compensation really is supposed to be an employee’s exclusive remedy for workplace injuries in all but the most egregious of cases.

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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 we really need to pump up workplace lactation rights?

Philly.com ran a story last week by Philadelphia attorney Beth Thorne, who recounted her lack of privacy at work to express breast milk. Ohio, like Pennsylvania, is in the majority of states that do not have a law that requires employers to accommodate lactating moms. Some Ohio legislators want to change this omission.

A bill has been drafted – but not yet introduced – that would amend Ohio’s discrimination statute to include “lactation” as a protected class. This law would expand the prohibition against discrimination because of or on the basis of sex to include discrimination because of or on the basis of lactation. It would also require employers to provide lactating employees “reasonable, unpaid time each day” for the expression of breast milk, and further require employers to make a reasonable effort to provide a sanitary room or area (other than a toilet stall) for this purpose.

While this law is noble in purpose, I question whether it is needed in the first place.

• Ohio’s law against sex discrimination likely already covers lactation. In Allen v. totes/Isotoner Corp., two of the most conservative justices of the Ohio Supreme Court concurred that lactation is covered by Ohio’s proscriptions against employment discrimination on the basis of sex/pregnancy. While the majority dodged this issue, the Court gave clear direction of how it rule if the issue arose again. We should not be in the business of unnecessarily amending laws.

• Is this really a problem that needs to be fixed? Are lactating employees really being denied the opportunity to pump? The empirical evidence would suggest that the answer is no. In my 13 year career I’ve never come across the issue. LEXIS reveals scant few cases on this topic, even in jurisdictions that have workplace lactation laws. So, if this is not a problem that needs correction, what reasons – other than placating certain special interests – call for the passage of workplace lactation legislation?

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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.

House passes Health Care Bill – What does this mean for employers?

I have not read any version of the health care bill. In fact, anyone outside of Capitol Hill, the White House, lobbyists, or some major news agencies who tells you otherwise is probably lying to you. So, I don’t have a lot to say about this legislation. In fact, I’m not embarrassed to say that I have not yet formed an opinion pro or con about it. What is embarrassing is the partisan politics that this issue has created. No one can honestly say that they are in favor of the bill because they are blue or against it because they are red. They are dishonest opinions based solely on party lines.

So, what can I tell you about this legislation? Employers are not required to provide health insurance to their employees. Instead, employers with 50 or more employees who do not provide health insurance will be fined $2,000 per employee. Employers smaller than 50 employees likely will not feel much of an effect from these changes.

For more on this important issue, I recommend reading Dan Schwartz’s post at the Connecticut Employment Law 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 #119

The best advice of the week comes from BLR’s HR Daily Advisors, which recommends that companies could save thousands by merely spending a few minutes with their employment lawyer. Here’s the rest of the best I read this week.

Big Verdicts

• Ohio MDV for Disability, Race, FMLA and Retaliation – from Michael Fox’s Jottings By An Employer's Lawyer

• $2 Million Dollar Consent Decree Against Tire Chain - What Lessons Learned for Employers? – from World of Work

Discrimination

• Employers watch out – There are new sheriffs in town – from Local Tech Wire

• Framing Discrimination Claims – from Compensation Today

• Hostile Work Environment – Single Incident of Harassment – from Fitzpatrick on Employment Law

• Can You Fire an Employee for Threatening Suicide? – from Mindy Chapman’s Case In Point

• Attention Shoppers: Blacks Get Out – from The Word on Employment Law with John Phillips (who launched a new website this week).

• Baseball scandal prompts thoughts on zero tolerance policies in the workplace – from Work Matters

• Could This Be News? Employee Fired Because She Was Too Old And Too Expensive Has Right To Age Discrimination Trial – from Workplace Fairness

• Why Employment Attorneys Should Care About Statistics – from Stephanie R. Thomas

• Use Caution When Accommodating a Disability – from Hunton Employment & Labor Law Perspectives™

Labor Law

• Identifying quorum requirements for the National Labor Relations Board – from SCOTUSblog

• Update of Union Activity – from Michael Haberman’s HR Observations

• Teamsters and Tea Party Activists: Kindred Spirits? – from LaborUnionReport.com

Wage & Hour

• Misclassifying Employees As “Managers”: The Wrong Way To Save A Dollar – from Overtime Advisor

• It's Baaack: Paycheck Fairness Act Returns to Capitol Hill – from Ann Bares at Compensation Force

• Employer Liability for Employee’s Internet Misconduct – Or When Surfing the Web can Wipe out your Business – from Defending The Digital Workplace

• The two best statements delivered Thursday in Congress – from PointOfLaw Forum

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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.

70% of hiring managers report rejecting candidates following internet searches

According to a recent survey conducted by Microsoft, 70% of U.S. hiring managers reject candidates based on information located online, while only 7% of consumers think that online information affected their job search.

The following are the most two most interesting findings from the study:

Do you review online reputational information about candidates when evaluating them for a potential job / college admission?

• All the time – 44%
• Most of the time – 35%
• Sometimes – 9%
• Rarely – 5%
• Never – 6%

What are the types of online reputational information that influenced decisions to reject a candidate?

• Concerns about the candidate’s lifestyle – 58%
• Inappropriate comments and text written by the candidate – 56%
• Unsuitable photos , videos, and information – 55%
• Inappropriate comments or text written by friends and relatives – 43%
• Comments criticizing previous employers, co-workers, or clients – 40%
• Inappropriate comments or text written by colleagues – 40%
• Membership in certain groups and networks – 35%
• Discovered that information the candidate shared was false – 30%
• Poor communication skills displayed online – 27%
• Concern about the candidate’s financial background – 16%

And yet, nearly 90% of recruiters and HR professionals surveyed report that they are somewhat to very concerned that the online reputational information they discover may be inaccurate. If you want to review the complete findings, Microsoft has made available a summary as a PDF, and its full research results as a PowerPoint.

What does all of this mean? Here’s what I’ve said previously on this issue:

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

For more on developing a DIY internet background screening strategy for your company, see Googling job applicants. You can also check out what the Delaware Employment Law Blog has to say on this issue.

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

Whose opinion counts for determining “incapacity” under the FMLA?

The FMLA defines serious health condition as “an illness, injury, impairment, or physical or mental condition that involves … continuing treatment by a health care provider.” The FMLA’s regulations define “incapacity” as the “inability to work, attend school or perform other regular daily activities due to the serious health condition, treatment therefore, or recovery therefrom.” The regulations further define a “serious health condition involving continuing treatment by a health care provider” as requiring a “period of incapacity of more than three consecutive, full calendar days.”

How does an employee establish incapacity for three or more days? Is an employer required to take the employee and his or her word, or can the employer require the employee to support the claim of incapacity with medical evidence? Courts take three approaches.

Some courts hold that an employee’s own statements, without any medical support whatsoever, are sufficient to establish incapacitation to support a claim for FMLA leave. One court, for example, even allowed an FMLA claim to proceed when an employee’s statements about his health directly contradicted his doctor’s note, which permitted him to return to work without restrictions.

Other courts, including Schaar v. Lehigh Valley Health Services, Inc., a recent case from the Third Circuit, hold that an employee can support a claim of incapacity for FMLA-leave purposes with a combination of the employee’s own statements in combination with documentation from a health care provider. In the Schaar case, for example, the employee supported her claim for an FMLA entitlement with a doctor’s note, which said that she was incapacitated for two days, along with her own statements that she was incapacitated for another two days.

Both of these views give employees a tremendous amount of latitude to game the system by claiming FMLA-leave that may not be medically supported. Luckily for Ohio employers, Ohio’s district courts subscribe to the most restrictive view, that an employee can establish that he or she was required to be absent from work only upon the production of “evidence showing that a health care provider made a professional assessment of his condition and determined, based on that assessment, that an extended absence from work was necessary.”

Regardless of the legal standard employed in determining whether an employee is “incapacitated” and therefore eligible for FMLA leave, your best defense against potential liability is to use the FMLA’s medical certification process to verify the employee’s qualification for the statutory leave.

And, on a totally unrelated topic, in honor of St. Patty’s day here’s a very cool picture I took of O’Neill’s Pub in Dublin.

  

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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.