WIRTW #139 (bald is beautiful edition)

At 37, I’m pretty comfortable in my baldness. I’m not sure if it was Michael Jordan, or finding me wife, who loves me for me, bald head and all. One great thing about being bald is that I never have to pay for a haircut—it’s just me and my Gillette a couple times a week. And now, at least according to Adria Martinelli at the Delaware Employment Law Blog, my baldness may protect me under the Genetic Information Nondiscrimination Act. Finally, a discrimination law I can support 100%.

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

Mark Hurd

• Mark Hurd, HP, Man Gene and Faux Ethics – from The Word on Employment Law with John Phillips

• Will Baggage Stop Former HP CEO, Mark Hurd from Future Employment? – from Nick Fishman at the employeescreenIQ Blog

• The Curious Case of Mark Hurd: Would you Fire a CEO Over Expenses? – from TLNT

• On HP's Mark Hurd: “Assholes Sometimes Get Their Due” – from Bob Sutton

• HP CEO resigned amidst sexual harassment allegations – from Boy Genius Report

• HP and the HR Pro: Watch the Agendas, People – from The HR Capitalist

Discrimination

• Research: Employment Discrimination Cases Often Result in Only Small Victories for Some Employees – from Dan Schwartz’s Connecticut Employment Law Blog

• Cautionary Comments as the ADA Nears Adulthood – from Michael Fox’s Jottings By An Employer's Lawyer

• “Preferences” and the ADAAA – from Workplace Prof Blog

• In Ugly Economy, Age Bias Claims Are a Tough Sell – from Law.com

• Seventh Circuit Holds Nursing Home Violated Title VII In Accommodating Resident’s “White-Only” Request – from Hunton Employment & Labor Law Perspectives™

• Do You Need to Know How Much Your Employees Weigh? – from Frank Roche’s KnowHR Blog

• Was overweight worker a victim of disability discrimination? – from Stephen Meyer’s HR Cafe

• Plain Dealer music critic lost age discrimination lawsuit – from Sindy Warren at the Warren & Hays Employment Law Blog

Litigation

• Lawsuit of the Day: Has Donald Duck Been Unfairly Accused? – from Abovethelaw.com

• When an Apology is a Discovery Response – from Katherine Gallo’s Resolving Discovery Disputes

• Can an apology help to prevent and settle employment litigation? – from David Yamada’s Minding the Workplace

• I Want to Sue the Pants off the Blankety Blank!! – from Teri Rasmussen’s Ohio Practical Business Law

Wage & Hour

• I’m Exempt: Can My Employer Deduct PTO for Doctor’s Appointments? – from Evil HR Lady

• WARNING: Outside Sales Representatives May Not Be Exempt From Overtime Pay – from Wyatt Employment Law Report

• Facts Make the Difference in Misclassification Cases – from Texas Employment Law Update

• Portrait of an Exempt Computer Employee – from Overtime Advisor

• Impact of Healthcare Reform on Business – from Rush Nigut’s Rush on Business

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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.

More on pregnancy as a disability

The more I think about yesterday’s post discussing Spees v. James Marine, Inc.—which held that pregnancy-related impairments that are not part of a “normal” pregnancy can qualify an an ADA impairment—the more troubled I am about the court’s decision.

The claim in Spees was a “regarded as disabled” claim. Heather Spees claimed her employer transferred her away from her welding duties because it perceived her at risk because of a history of miscarriages. Yet, the ADA states that one cannot premise a “regarded as” claim on “impairments that are transitory and minor”—that is, impairments “with an actual or expected duration of 6 months or less.” Pregnancy, by its very nature, is a transitory condition. Most pregnancy-related impairments—ectopic pregnancy, preeclampsia, miscarriage, gestational diabetes, placenta previa—only occur during a portion of the pregnancy. Moreover, in most cases, childbirth cures these impairments. In other words, by their very nature, pregnancy-related impairments are transitory, and should not be covered by ADA.

There, now I feel much better.

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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.

Pregnant = disabled, at least according to the 6th Circuit

The Americans with Disabilities Act expressly excludes pregnancy as a disability. Or at least that’s what it says, and what I’ve always believed to be true. Yesterday, the 6th Circuit decided Spees v. James Marine, Inc. [pdf], which will turn the notion of pregnancy as an ADA-protected disability on its head.

Heather Spees was a welder-trainee with JMI. Shortly after her hire, she learned she was pregnant. Her prior pregnancy ended in a miscarriage. Spees talked to her brother who was also a JMI foreman, her own foreman, and her obstetrician who originally cleared her for work without restrictions. Spees’s foreman, however, told her to revisit her doctor and get a note for light duty. He thereafter assigned her to the tool room away from her welding duties, telling her, “For right now, we don’t know what to do with you.” Apparently, Spees’s brother and foreman concluded that the risks associated with welding were too dangerous for the pregnant Spees. When another doctor later ordered Spees to full bed-rest, JMI terminated her employment for excessive absences. According to Spees, her brother told her that she “was being fired for being pregnant.”

The 6th Circuit resurrected Spees’s “regarded as” disabled claim. Although it recognized that pregancy, in and of itself, does not qualify as a disability, the court concluded that pregnancy-related impairments that are not part of a “normal” pregnancy—such as miscarriage susceptibility—can qualify an an “impairment” under the ADA:

Our first step in evaluating Spees’s ADA claim is to determine whether her prior miscarriage, or a potentially higher risk of having a future miscarriage, could constitute an impairment. Whereas no court has held that pregnancy by itself is an impairment under the ADA, many district courts have held that pregnancy-related conditions can qualify as such…. 

Pregnancy-related conditions have typically been found to be impairments where they are not part of a “normal” pregnancy…. Susceptibility to a miscarriage, moreover, has been deemed by some courts to be such a condition…. 

Although other courts have held that pregnancy complications related to miscarriages are not disabilities, the analysis in those cases did not hinge on the question of whether there was an impairment, but rather on whether the condition was sufficiently severe to substantially limit a major life activity…. There thus appears to be a general consensus that an increased risk of having a miscarriage at a minimum constitutes an impairment falling outside the range of a normal pregnancy.

The 6th Circuit appears to be breaking new ground again in the expansion of employees’ rights under federal discrimination laws. This case ups the ante for employers dealing with pregnant employees. Now, more than ever, employers should adopt, as best as possible, a “see no evil, hear no evil” approach in dealing with those who are pregnant to avoid any knowledge of pregnancy-related complications or conditions.

Do you know? What triggers the duty of reasonable accommodation?

Suppose an employee suffers from sleep apnea, which keeps the employee awake for periods of time at night. In fact, the employee’s nighttime sleep patterns are interrupted to the point that the employee is excessively tired during the work day.

Two weeks after being hired as a manager, the employee falls asleep during a meeting. When questioned, he mentions that he has sleep apnea, but blames the nap on the warmness of his room coupled with his jacket and tie. The employee would repeat his workplace naps numerous times over the next year, and when questioned he would merely state that he had a rough night. He never asked for an accommodation of his sleep apnea, nor indicated that sleep apnea was
interfering with his job. This pattern continued for 18 months.

Finally, the employee’s supervisor catches him sleeping at his desk in the middle of the work day. When it took her more than five minutes to roust him, she told him that he could resign his employment or be terminated. The employee claims that he said that he had sleep apnea which causes him to involuntarily fall asleep, although he never requested any type of accommodation. In his resignation letter, he stated that he was disappointed that his employer was unable to accommodate his medical condition.

These are the facts of Medlin v. Springfield Metro. Hous. Auth. (Ohio App. 8/6/10) [pdf], a case in which Medlin sued for constructive discharge for a failure to reasonably accommodate his sleep apnea. The court of appeals upheld the dismissal of his claim because he failed to request an accommodation for his disability:

Federal courts have recognized that the duty of an employer to make a reasonable accommodation also mandates that the employer interact with an employee in a good faith effort to seek a reasonable accommodation…. To show that an employer failed to participate in the interactive process, a disabled employee must demonstrate: 1) the employer knew about the employee’s disability; 2) the employee requested accommodations or assistance for his or her disability; 3) the employer did not make a good faith effort to assist the employee in seeking accommodations; and 4) the employee could have been reasonably accommodated but for the employer’s lack of good faith.

As noted, Medlin never asked for reasonable accommodations to accommodate sleeping on the job before being given the option to resign or be terminated. At that time, Medlin did not even suggest what a reasonable accommodation might be; he simply stated in his resignation letter that he was disappointed that SMHA was unable to accommodate his medical condition. SMHA was entitled, however, to terminate Medlin’s employment the day before, when he was found asleep in violation of company rules. There is no showing that SMHA failed to act in good faith by giving Medlin the option the following day to resign or be fired for sleeping on the job, particularly when Medlin had never asked for an accommodation. This is not a situation in which an employee was ignorant of his condition. Medlin was aware for many years that he had sleep apnea, and had ample opportunity to bring the issue of accommodation to his employer’s attention. Medlin was twice questioned about sleeping on the job, and was specifically informed that he had been observed sleeping by other employees and by board commissioners. Nonetheless, Medlin failed to ask for a reasonable accommodation for his condition.

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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.

California court declares open season on stray workplace remarks

Traditionally, an employee cannot use stray remarks in the workplace to prove discrimination. Under the stray remarks doctrine, courts deem irrelevant any remarks made by non-decisionmaking coworkers or remarks made by decisionmaking supervisors outside of the decisional process. For more than 20 years employers have successfully avoided liability for crude and even discriminatory remarks made employees not involved in a decision to fire or demote, and for comments that are remote in time from the adverse employment action.

Reid v. Google [pdf]—decided last week by the California Supreme Court—has tossed this long-standing doctrine on its head. The Reid court flatly rejected the stray remarks doctrine in an age discrimination case. Briefly, Brian Reid, a former Google senior executive, claimed that the company discriminated against him because of his age when it terminated his employment. In support of this claim, he pointed to three key pieces of evidence:

1. Statements by one supervisor that Reid was slow, fuzzy, sluggish, lethargic, did not display a sense of urgency, lacked energy, and that his ideas were obsolete and too old to matter.
2. Statements by another supervisor near the time of the termination that Reid was not a good “cultural fit.”
3. Coworkers’ comments calling Reid an old man and an old fuddy-duddy, and a joke that his office placard should be an LP instead of a CD.

The court rejected a strict application of the stray remarks doctrine, concluding that it “would result in a court’s categorical exclusion of evidence even if the evidence was relevant…. An age-based remark not made directly in the context of an employment decision or uttered by a non-decision-maker may be relevant, circumstantial evidence of discrimination.”

One case does not make a trend. Plus, if there’s one thing I learned in law school it’s that California is legal la-la land, where white is often black and black is often white. For the sake of employers, I hope this is the case with the stray remarks doctrine. Certainly, plaintiffs all over the country will use the Reid decision to argue against summary judgment in cases in which there are stray remarks. It will bear watching to see how federal courts and states other than California react to Reid. Reid can either be an anomaly in a sea of stray remarks, or a sea change in how courts rule on summary judgment in employment cases. The latter will have a catastrophic effect on employers’ ability to defend themselves against discrimination claims. It’s hard to find a workplace in which stray remarks don’t exist. If Reid becomes doctrine, it will be hard to find a discrimination case in which an employer will be able to withstand summary judgment.

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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 #138

Boy has it been quiet this week. Sure, the Senate confirmed Elena Kagan to a seat on the Supreme Court, but otherwise it seems like everyone (but me) are away on their summer vacations. Whether you are away or not, consider this as my tip of the week: your office desk is not a great place to stash your collection of kidding porn (c/o Above the Law)

Here's what I read during what felt like an unusually sedate week:

Discrimination

• Muslim Head Gear Ban Allowed by 3rd Circuit – from Philip Miles’s Lawffice Space

• More Men Filing Sex Discrimination Suits – from Law.com

• Fired for Cubicle Exorcism: Is That Religious Bias? – from Mindy Chapman’s Case in Point

• Customer Preference Not Justification for Discrimination – from GT LE Blog

• A Labor Market Punishment to Mothers – from Howard Bashman’s How Appealing

• ADA’s 20th Anniversary: A Contrary View – from The Word on Employment Law with John Phillips

• Getting to Work – from Charles Sullivan at the Workplace Prof Blog

Wage and Hour

• Court Rules Employee Does Not Necessarily Need to Comply with Employer’s Heightened FMLA Notice Procedure – from Texas Employment Law Update

• Disciplining FMLA Leave-Takers – from The HR Cafe

• FMLA Inclusion Act Introduced in Congress ... Again – from FMLA Insights

• Overtime Compliance Must Be Taken Seriously—Damages are Severe and Potentially Crippling for a Business – from Overtime Advisor

Technology

• Employees: If You’re Too Stupid to Set Your Facebook Privacy, You Deserve It If HR Looks – from Know HR

• Wife Says She Learned From Facebook That Her Hubby Had Another Wedding – from the ABA Journal

• I Shouldn’t Have to Tell Employees This, But I Do – from Popehat

• No Need for Panic: 10 Tips to Prevent Employee Issues with Social Media – from TLNT, the Business of HR

• Tips for creative success from Pixar – from Presentation Zen

• Blog Comments as Trial Evidence – from the Delaware Employment Law Blog

• Adobe’s Advice on Purging PDF Documents of Metadata – from Ride the Lightning

• I Tweet, Therefore I am – from Peggy Orenstein in the New York Times Magazine

• Juvenile corrections officer fired over Facebook slurs – from Chris Tye at wkyc.com

HR

• Bereavement Leave for the 21st Century – from Mike Maslanka’s Work Matters

• Leading a Good Fight: Stories and Rules – from Bob Sutton’s Work Matters

Trade Secrets and Non-Compete Litigation

• Trade Secrets of Ultimate Fighting—Stolen? – from Trade Secrets Blog

• From Trade Secrets to Newsletters, What Do Confidentiality Agreements Really Cover? – from Trade Secret/Noncompete

• Emergency! What Can an Employer Do When An Employee is Violating A Non-Compete Agreement – from Dan Schwartz's 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.

The best way to settle an employment case

Yesterday at Jottings By An Employer’s Lawyer, Michael Fox praised the Employment Law Group for announcing a jury trial loss in a blog post. You may be asking yourself why would a defense lawyer announce a loss. It’s what I call smart marketing. There are two things employment plaintiff’s count on to extort a high settlement: 1) a denied summary judgment motion with a firm trial date, and 2) cold feet by a business or its lawyer to take the case to a jury. If you want to obtain a fair settlement in your next employment case, hire an attorney with a proven track record of trying cases. Before you hire the lawyer to defend your next claim, ask him or her how many cases he or she has tried to a jury, and how long ago the last jury trial was.

There are very few things in the law that take more guts than taking an employment case to trial as an employer. No one wants a jury to resolve a dispute. Knowing that your lawyer has the confidence to try your case will give you the confidence to draw a reasonable settlement line in the sand. That line might be at or near zero. You should never pay more than you think a case is worth merely to avoid a trial. Knowing your lawyer can and will try your case for you will enable you to hold that line.

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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.

Celebrating the ADA, but bemoaning its breadth

As I noted last Friday, the ADA recently enjoyed its 20th anniversary. Last Monday, in The New Republic, Jonathan Cohn celebrated the ADA and its accomplishments for disabled Americans. And, I agree with him—in part. It’s hard to disagree with a law that has opened access to businesses and employers to those with legitimate disabilities. But (and it’s a big but), the ADA has also opened employers to abuses by many who have marginal medical issues, or medical issues that do not impact their day-to-day ability to perform their jobs. Under the current iteration of the ADA and its broad definition of disability, nearly everyone with a medical condition will be considered “disabled,” triggering an employer’s reasonable accommodation obligation. The ADA is rife with abuse. Even more problematic for employers is that the ADA is not only a prophylactic statute, but also in most instances a proactive statute, requiring employers to expend man-hours and money attempting to bend to the needs of employees via the reasonable accommodation interactive process.

So, as the ADA enters its third decade, I applaud all it has done for the truly disabled. I also feel the pain of every employer that has been compelled to hire someone like me to defend a specious claim of someone with a marginal medical 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.

Do you know? 10 tips for preparing for your deposition

I’ve been taking and defending more depositions than usual lately, and, naturally, I’ve been thinking a lot about the art of the deposition. Because very few cases get to trial, the deposition is the event during which the key players have their opportunity to tell their stories. It is also often the key event in employment cases that decides whether a summary judgment motion is granted or whether a case results in a fair settlement.

A deposition may feel like a conversation, but it isn’t. It is a tool used by a highly skilled practitioner to lock-in your side of the story, build his or her case through your admissions, and evaluate you a trial witness. As there is a skill in taking a deposition, there is also a skill in testifying at a deposition. The following are my top 10 things to think about as you prepare to give testimony in a deposition.

1. Tell the truth. Enough said.
   
2. Answer the specific question asked. Do not volunteer other information. Do not explain your thought process. You are only required to answer the question that is asked. The lawyer on the other side is being paid to ask specific questions to elicit the specific information being sought. Do not do his job for him by unnecessarily offering other information.
   
3. If you do not understand a question, do not answer. Simply say that you do not understand. It is the lawyer’s job to formulate understandable questions, and not your job to guess at what is trying to be asked of you.
   
4. Do not guess. If you cannot remember something, your answer should simply be: “I do not remember.” If you have a vague memory, give that vague memory with a qualification.
   
5. A deposition isn’t a memory test. If you are asked for a time or date, and you cannot recall specifics, it is okay to give an approximation. Just qualify the answer by saying that it is an approximation or an estimate.
   
6. Beware leading questions. An examiner is usually allowed to try to put words in your mouth with leading questions. Do not agree to inaccurate statements contained within the question. To same end, do not automatically accept the questioner’s summary of your prior testimony, unless it is 100% accurate.
   
7. Give complete answers, and then stop. Always finish your answer. If you are interrupted, let the lawyer finish the next question, and then go back and finish your prior answer. If you are finished with an answer and it is complete, accurate, and truthful, stop talking and stay silent. Do not add to your answer because you feel a need to fill the silence.
   
8. Documents. If you think you need a document to help you truthfully and accurately answer a question, ask for it. But, do not agree to supply any documents requested by the questioner. All such requests should go through your lawyer.
   
9. Objections. Even if your lawyer objects, you usually still have to answer the question. You will only not answer if your lawyer expressly instruct you accordingly (usually because the other lawyer is asking about attorney-client communications).
   
10. Humor doesn’t work. Sarcasm and humor do not translate well on the written page. Also, never express anger or argue with the questioner, or use even the mildest of off-color language. A deposition is a professional event, and you should act professionally.
    

I’ve never seen a perfect witness. A good witness will get more than half of these right in answering more than half of the questions asked. See if you can beat that batting average at your next deposition.

I don't like Mondays (tell me why)

There is no worse feeling than coming into your office bright and early on a Monday morning, hitting the power button on your computer, and... nothing. That's what happened to me this morning. 7 am - no computer, no help desk, and nothing I can do about it. So here I am on my smart phone with my Monday morning tip of the day. Don't be so dependent on technology. Otherwise, you'll be stuck at your desk wondering how to kill time until your 9 am deposition starts (with no access to your witness outline because it's on your computer. Technology drives nearly every aspect of our society, including our businesses and our workforces. Think about disaster planning for your business, and how your business would function if it had to do so without technology for even a day. Scary exercise, but maybe one that we should all do so we don't get caught with our servers down one day. As for me, I'm off to dig into my file cabinets and see what I can get done in the next two hours.

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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 #137

Happy 20th Birthday to the ADA. Some notable bloggers share their thoughts on the ADA at 20.

• ADA’s 20th Anniversary – from Walter Olson

• ADA’s anniversary, cont’d – from Overlawyered

• ADA Turns 20, Still Has Growing Up To Do – from Workplace Diva

• ADA anniversary approaches – from Warren & Hays Employment Law Blog

• EEOC Celebrates 20th Anniversary of the Americans with Disabilities Act – from Wyatt Employment Law Report

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

Discrimination

• The Basics: What It Takes To File a Employment Discrimination Lawsuit – from Dan Schwartz’s Connecticut Employment Law Blog

• Settling Gender Discrimination Class Actions (Part I) – from Workplace Fairness

• Ninth Circuit Approves of “Preemptive” Fitness for Duty Examination – from World of Work

• An “Old bully” but not the victim of age discrimination – from John Holmquist’s Michigan Employment Law Connection

• No Matter How Bad it Looks, Don't Rush to Judgment: Do an Investigation – from Debra Reilly’s Workplace Investigations Blog

• Minimizing Risk of Retaliation Claims Is As Easy As A B C – from The Proactive Employer

• Patient’s preference for white aides does not trump health care employer’s duty to its employees to abstain from race-based work assignments – from Employment Law Matters

• Shifting Reasons Still Help Show Pretext – from Tom Crane’s San Antonio Employment Law Blog

Technology

• The Right to Photograph Public Places – from Philip Miles’s Lawffice Space

• Enterprise iPads: Policies on personal iPads and remote access – from The Apple Core

• Ninth Circuit Provides Some Relief for Employers and Executives Anonymously Trashed on the Web – from Workplace Privacy Counsel

• 23 Things Not To Write In An E-mail – from NPR’s Planet Money

Wage & Hour

• Employee’s Headache No Excuse For Insubordination – from FMLA Insights

• 77 Cents and Gender Discrimination: The Wrong Conclusion – from Stephanie Thomas at Compensation Cafe

• FMLA Case Update – Lane v. Pontiac Osteopathic Hospital – from FMLA law

• Watch for more FMLA claims about caring for aging parents – from Work Matters

Background Screening

• Is Continuous Employment Screening on the Rise? – from Nick Fishman at the employeescreenIQ Blog

• The Perils of Making Hiring Decisions With Personal Info Found Online – from TLNT

• Checking Credit Reports? Check Your State Law First – from Nolo’s Employment Law Blog

Miscellaneous

• Financial Reform: What Employers Can Expect – from Hunton Employment & Labor Law Perspectives™

• Manufacturers’ Hiring Stymied? – from The Word on Employment Law with John Phillips

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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.

If you want something to be a trade secret, don’t publish it

While it seems like common sense, for something to be a trade secret it must actually be secret. Rogers Indus. Prods. v. HF Rubber Machinery (Ohio Ct. App. 7/21/10) [pdf] serves as a good illustration. Rogers alleged that the various defendants had used confidential information about its tire curing press to copy the unique design of its system. Rogers’s problem was that it had publicly disclosed its press design in a patent application before the alleged trade secret theft. The court concluded there is no trade secret protection for confidential information that is disclosed in a published patent application, but that a factual issue existed as to whether the patent application disclosed the specific trade secret at issue.

Aside from not publishing trade secrets in patent applications (or other public documents), what are some of the other things your company should be doing to protect its trade secrets?

• Limited access on a need-to-know basis.
• Documents kept under lock and key.
• Password-protected data files.
• Confidentiality and non-disclosure agreements for anyone with knowledge or access.
• Lawsuits to recover stolen or misused secrets.

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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 chocolate cupcake by any other name…

The EEOC has settled a race and sex discrimination case against a local temporary agency, Area Temps. The EEOC alleged that the agency used code words to identify the race, color, and sex of candidates it placed with employers. For example, hockey player = white male, small hands = females, basketball player = African American men, and chocolate cupcake = young African American women. The EEOC alleged that Area Temps would attach note cards containing the coded phrases to job applications submitted to employers. The settlement will pay $650,000 to a nationwide class of 11,000 people.

The easy lesson from this case is that businesses should never use code words as a proxy to identify protected characteristics such as race and sex. There is also a deeper lesson to take away from this story. Claims against two of the employers who are alleged to have used the coded phrases to make job decisions remain pending in federal court. Employers are often jointly responsible with temporary agencies for acts of discrimination. In dealing with temporary agencies, businesses should be careful not to perpetuate discrimination fostered by the agency. Also, to the extent that you are able, businesses should negotiate indemnification clauses in staffing agreements with temporary agencies, so that if your business is sued for the discriminatory act of the agency, it will defend you (pay your attorneys’ fees) and hold you harmless (pay your portion of any settlement of or judgment on the claims).

Do you know? Content of FMLA medical certifications

So often we get bogged down in the minutia of an employment law issue or a specific case. I thought that today, we’d take a step back and focus on something really basic—the mechanics of FMLA medical certifications.

When an employee take an FMLA leave for his or her own serious health condition, or that of a family member, an employer may require that the employee obtain a medical certification from a health care provider to certify that the medical condition qualified under the FMLA. The certification may seek the following information:

1. The name, address, telephone number, and fax number of the health care provider and type of medical practice/specialization.

2. The approximate date on which the serious health condition began, and its probable duration.

3. A statement or description of medical facts regarding the patient’s health condition for which FMLA leave is requested. The medical facts must be sufficient to support the need for leave. Such medical facts may include information on symptoms, diagnosis, hospitalization, doctor visits, whether medication has been prescribed, any referrals for evaluation or treatment (physical therapy, for example), or any other regimen of continuing treatment.

4. If the employee is the patient, information to establish that the employee cannot perform the essential functions of the job, the nature of any other work restrictions, and the likely duration of such inability.

5. If the patient is a covered family member with a serious health condition, information to establish that the family member is in need of care, and an estimate of the frequency and duration of the leave required to care for the family member.

6. If an employee requests leave on an intermittent or reduced schedule basis for planned medical treatment of the employee’s or a covered family member’s serious health condition, information to establish the medical necessity for such intermittent or reduced schedule leave and an estimate of the dates and duration of such treatments and any periods of recovery

7. If an employee requests leave on an intermittent or reduced schedule basis for the employee’s serious health condition, including pregnancy, that may result in unforeseeable episodes of incapacity, information to establish the medical necessity for such intermittent or reduced schedule leave and an estimate of the frequency and duration of the episodes of incapacity

8. If an employee requests leave on an intermittent or reduced schedule basis to care for a covered family member with a serious health condition, a statement that such leave is medically necessary to care for the family member, which can include assisting in the family member’s recovery, and an estimate of the frequency and duration of the required leave.

The Department of Labor has published two forms for employers to use for a health care provider to certify the need for FMLA leave: WH-380-E (for an employee’s own serious health condition), and WH-380-F (for a family member’s serious health condition). While these forms are optional, the DOL approves their use, they are available for free, they cover all of the permitted information, and leave no room for over-reaching. In other words, if you’re not using these forms, you should be.

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

DOL provides guidance on break time for nursing moms

One of the lesser heralded provisions of the Patient Protection and Affordable Care Act (better known as the Health Care Reform Bill) is section 4207, which provides reasonable break time for nursing mothers. Unlike many provisions of the health care bill, which do not go into effect for several years, break times for nursing mothers went into effect as soon as President Obama signed the bill into law on March 23, 2010.

Last Friday, the Department of Labor’s Wage & Hour Division published Fact Sheet #73, which provides guidance to employers implementing this new break time requirement. Here’s the highlights:

• Employers must provide “reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth each time such employee has need to express the milk.” The frequency and duration of each break will likely vary from employee to employee, and employers must provide breaks as frequently as needed by the nursing mother.

• Employers must provide “a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.” A bathroom, even if private, is not allowed. The location must be functional as a space for expressing breast milk. If the space is not dedicated to the nursing mother’s use, it must be available when needed. A space temporarily created or converted into a space for expressing milk or made available when needed by the nursing mother is sufficient provided that the space is shielded from view, and free from any intrusion from co-workers and the public.

• This break time requirement only applies to non-exempt employees.

• Employers with less than 50 employees are not subject to this break time requirement if compliance would impose an undue hardship (defined as the difficulty or expense of compliance for a specific employer in comparison to the size, financial resources, nature, and structure of the employer’s business).

• Employers are not required to compensate nursing mothers for breaks taken for the purpose of expressing milk. However, where employers already provide compensated breaks, an employee who uses that break time to express milk must be compensated in the same way that other employees are compensated for break time.

Because Ohio does not have its own law that requires lactation breaks, Ohio employers should pay careful attention to this provision of the health care bill and the new requirements it imposes on all but the smallest of our state’s employers.

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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 #136

When I write I post about which I’m particularly proud, I’ll ask my wife for her opinion, which is what I did last night for my post from yesterday on assholes. Her comment—that all of my readers would think that I had an awful time at the concert, which couldn’t be further from the truth. The music was awesome, we had a great dinner beforehand, and it’s always a joy to spend some rare time with my wife without kids.

Now that I’ve clarified, here’s what I read this week:

Bullying

• When “sabotage” becomes illegal – from Michael Fox’s Jottings By An Employer’s Lawyer

• New Laws Target Workplace Bullying – from Adam Cohen at Time.com

• With Time and Parade, the workplace bullying legislative movement goes mainstream – from David Yamada’s Minding the Workplace

Wage & Hour

• Clarity In Labor Law? You MUST Be Kidding – from Hartford Business Journal Online

• Independent Contractor Safe Harbor Now a Minefield – from Michael Haberman’s HR Observations

• DOL to Conduct “FMLA survery”: Is More Regulatory Change on the Horizon? – from FMLA Insights

• When Plaintiff’s Lawyers Go Too Far – from Florida Employment Law Blog

• Proactive Analyses as Management Conundrum? – from Stephanie Thomas’s The Proactive Employer

• Children at Work: Employers May Face Stiff Fines for Employing Minors – from CPEhr

• Here Comes An Avalanche of FLSA Cases: Employers Be Aware, Be Proactive! – from Wage & Hour - Development & Highlights

Technology & Social Media

• Social Media Use in the Workplace Is on the Rise – from Forbes.com Velocity Blog

• Corporate Social Media Policies: The Good, the Mediocre, and the Ugly – from Fast Company

• It’s Like Alanis Morissette Was Using Her iPhone in her Government-Issued Cube – from Kris Dunn, The HR Capitalist

• Use Twitter, Get Fired – from Molly DiBianca at the Delaware Employment Law Blog

• Facebook hits 500 million user milestone – from Boy Genius Report

• When Everyone Has Their Own Smart Phone, What Does That Mean for the “Workplace”? – from Dan Schwartz’s Connecticut Employment Law Blog

Competition & Trade Secrets

• Compete, Solicit, Tell Secrets: Is It Legal? Is It Wise? – from Going Concern

• Motorola sues Huawei and several former employees for stealing wireless trade secrets – from Engadget Mobile

• Minimizing the Risk that a New Hire Will Lead to Trade Secret Litigation: Some Simple Preventive Steps – from Trade Secrets and Noncompete Blog

• FusionStorm and Employees Get Hit With $10 Million Trade Secret Theft Verdict – from Trade Secrets Blog

Discrimination

• After the investigation: what to do when the complainant is unhappy with the results – from Sindy Warren at the Warren & Hays Employment Law Blog

• House Rules: Sex, Cocaine, and Strip Clubs – from Philip Miles’s Lawffice Space

• A Modest Proposal for Maternity Leave – from You’re the Boss Blog

• Employers Beware: ADA Claims On The Rise Now And Into The Foreseeable Future – from Hunton Employment & Labor Law Perspectives™

Labor Relations

• ScienceBlogs.com Bloggers Go on Strike, Issue Demands to Management – from Work in Progress

• A Work Stoppage We Can All Support – from Jeffrey Hirsch at the Workplace Prof Blog

Miscellaneous

• Celebrating Junior Achievement – from The ChamberPost

• Credit Reports: The Value (and Risk) to HR Professionals – from Nick Fishman at TLNT

• Five Ways Pixar Makes Better Decisions – from Tom Davenport at the Harvard Business Review

• Dodd-Frank amends SOX; creates new whistleblower protections – from GT LE Blog

• How Would The Dalai Lama Tell Someone To Fuck-Off? – from Bob Sutton

• A classic offers lessons on firing employees – from Work Matters

• HR - Friend or Foe – from Workplace Fairness

• The Elements of Communication: Lawyerium – from KnowHR 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.

We are devolving into a society of assholes (and what it means to your workplace)

I went to a concert last night—Jack Johnson to be specific, which, by all accounts, was a low-key and mellow way to spend an evening. Or, at least the music was. But as a I sat and watched the people around me, I was surprised at how apologetically rude people have become. Smoking in clearly marked no-smoking areas, poaching a ticketed seat and scoffing when you have the nerve to ask for it back, and leaving vomit marking a breadcrumbed trail to the exit. Trust me, I’m no shrinking violet. I’m an employment lawyer, and I deal with people at their absolute worst (and often relish in it). But I look at my kids (4 and 2), who I am trying very hard to raise with manners, politeness, and respect for others, and I am starting to think that I have no chance once they get out into the world. And it makes me sad, angry, and scared.

I write this not because I think it will change anyone’s behavior. The fact is, people are who they are.

How they act at a Jack Johnson concert is likely how they will act at home, and how they will act in your workplace. Sure, they can put on a mask and try to hide it as best they can, but ultimately who they are will rise to the surface, and it will cause you a problem. Take, for example, the recent story about an altercation between two attorneys outside a courthouse (from the ABA Journal):

A 46-year-old Philadelphia area lawyer was briefly jailed and manacled last week after allegedly punching an opposing counsel who reportedly called him stupid, bald and an unprintable word.

The bottom line is that we need to adjust to the incivility in our society and make the best of it, because I don’t think it’s going to get any better. We can’t legislate niceness. Laws (like the anti-bullying movement) will not change behavior for the better, but will merely make it more difficult and more expensive for businesses to manage their workforces.

For more thoughts on assholes in the workplace, I highly recommend the thoughts of Bob Sutton, who has written extensively on the issue in his book, The No Asshole Rule.

I leave you with the (maybe) apropos music of Jack Johnson and his song, Good People:

Why employees sue

At the conclusion of a day-long plaintiff’s deposition in an FMLA and disability discrimination lawsuit, it was clear to me that my client had not only not violated any laws, but bent over backwards to do everything possible to accommodate the plaintiff. The company had treated this employee so well, I asked a question that I had never asked in another deposition—why are you suing?

It seems to me that they treated you fairly. They gave you an initial medical leave of more than 12 weeks, they provided you every accommodation you requested for your medical conditions, they provided you a second medical leave of more than 12 weeks, and you received several raises during your employment. Why are you suing this company?

The answer she gave floored me—not because it was damaging to my case, but because something that seemed so trifling caused the lawsuit. Her answer: “They started fighting my unemployment.”

Employees sue when they feel disrespected or when they perceive unfair treatment. It is not simply enough for an employer to treat employees well during their tenure. Employers should also strive to treat employees well in conjunction with their terminations and even thereafter. Sure, there are exceptions. I would never suggest that a serial harasser deserves a pass, or that the employee who stole from you should receive unemployment or a good job reference. If you don’t want to be sued, though, don’t make a terminated employee feel like a common criminal by having security escort them to the door (unless you legitimately and reasonably perceive a safety risk). It’s okay not to give a glowing recommendation to a marginal ex-employee, but resist the urge to trash him or her to a prospective employer. Don’t fight unemployment except in the most clear-cut cases. These little things could go a long way to an ex-employee reaching the decision to let bygones be bygones and not see you in court.

Do you know? What is the Paycheck Fairness Act are why should employers be concerned?

Today’s USA Today reports that the Obama Administration is going to make a renewed push for the passage of the Paycheck Fairness Act:

President Obama plans to press Congress today to pass pay-equity legislation that would make it easier for women to sue employers who pay them less than their male counterparts, the White House said Monday. “Women deserve equal pay,” White House senior adviser Valerie Jarrett said in an interview, citing government statistics that show women earn 77 cents for every dollar men earn. “It’s a very fundamental right.”

It would be hard to make an argument against this bill if all it did was guarantee equal pay for equal work. The Paycheck Fairness Act, however, goes much further by limiting the ability of businesses to defend against such claims, which should make businesses very concerned that this issue has reached the top of the President’s agenda.

The Paycheck Fairness Act (the full text of which is available here) makes 5 key changes to federal wage and hour laws:

1. Modified defense. Paycheck Fairness would impede the ability of employers to defend against sex discrimination wage payment claims. An employer can currently defend against an Equal Pay Act claim by showing that the pay difference between men and women was caused by “any factor other than sex.” Paycheck Fairness would alter this standard by requiring employers to show “a bona fide factor other than sex, such as education, training, or experience,” that is not sex-based, but is job-related to the position and consistent with business necessity. Moreover, even if an employer makes this showing, the employee could still prevail by showing that the employer refused to adopt an alternative employment practice that would serve the same business purpose without producing the same wage differential.
   
2. Enhanced damages. The current Equal Pay Act’s remedies include back pay and liquidated damages that are capped at the amount of the back pay. Paycheck Fairness would steepen the remedies for sex discrimination in wage payments by allowing for uncapped punitive and compensatory damages.
   
3. Non-retaliation. Paycheck Fairness would prohibit an employer from retaliating an employee who inquired about, discussed or disclosed the wages of the employee or another employee, unless discussing wages is part of an employee’s essential job function. While the National Labor Relations Act already covers this conduct, Paycheck Fairness’s enhanced remedies are much more extensive than those available under the NLRA.
   
4. Class actions. Paycheck Fairness would change sex discrimination wage payment class actions from “opt in” classes to “opt out” classes, making classes in these cases larger and easier for employees to join.
   
5. Reporting. Paycheck Fairness would require the EEOC to issue regulations on the collection of pay information from employers. It would also require the Office of Federal Contract Compliance Programs to use its “full range of investigatory tools” for investigation, compliance, and enforcement.
   

Employers should be very worried about the prospects for Paycheck Fairness. If it passes, employers will face increased risk and higher damages for sex discrimination wage claims. Perhaps the heavier burden, though, will be the significant compliance obligations from newly-empowered federal agencies.

Court recognizes “sabotage defense” in retaliation cases

Alvarez v. Royal Atlantic Developers, Inc. (11th Cir. 7/2/10) [pdf] asks this question: Can an employee who engages in protected activity pursue a retaliation claim if an employee slated for termination is fired sooner rather than later because of an exercise of protected activity? The court recognized that in certain circumstances, a legitimate and reasonable fear that an irate employee will use his or her position within the company to sabotage operations will justify termination, even if the company finds about the risk from the employee’s exercise of protected activity (such as a written complaint letter).

When Eliuth Alvarez got wind of her boss’s plans to replace her as the company’s controller, she wrote a letter of protest, complaining, among other things, about what she perceived to be discrimination against her based on her national origin. The company accelerated Alvarez’s termination because of the letter. It argued that it had to get rid of Alvarez when it did because the it feared that she might vindictively use her position as controller, with access to company computers and bank accounts, to sabotage operations.

The court recognized that in certain circumstances, such a fear is justified:

Suppose an employee with reason to believe that she has been discriminated against works in the control room of a nuclear power plant, and in her letter complaining of discrimination says that: “I’m mad as hell and I’m not going to take it anymore!” Or suppose she is a pilot and makes that statement in her letter of complaint. Or suppose she was not in a position to endanger the public, but her letter complaining of discrimination makes it clear that she is psychologically unstable and a danger to those who work around her. Discrimination laws do not require that their goals be pursued at the cost of jeopardizing innocent life or that employers tolerate a serious risk that employees in sensitive positions will sabotage the company’s operations. We are confident that if an employer removes an employee because of a reasonable, fact-based fear of sabotage or violence, the anti-retaliation provisions of our laws will not punish that employer for doing so.

In the specific circumstances of this case, however, the court was not persuaded that fear of sabotage motivated the employer’s decision to move up the termination:

Unless Royal Atlantic convinces a jury that it had a reasonable basis for fearing that unless it fired her immediately Alvarez would sabotage its operations or harm others, and there was no less drastic means of reliably preventing that other than firing her, Alvarez will be entitled to damages for the length of time she would have remained on the job if she had not sent the October 3, 2006 letter complaining of discrimination.

A few questions to consider if you a planning on using this defense in your next retaliation case:

• Did the employee’s position offer the opportunity to do real harm to the company?

• Did the employee make real threats against the company or anyone else, or provide a legitimate and reasonable basis to infer that he or she would disrupt operations?

• Did the company have no options other than termination (such as reassigning duties until a replacement could be hired) to protect itself from the feared sabotage?

• Did the employee’s continued employment pose a physical danger to other employees or the public?

The more of these questions to which you can answer yes, the better chance you will have to prevail on this defense.

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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.