 |
| http://www.gocomics.com/reallifeadventures/2010/09/06/ |
Earlier this month, the Second Circuit, in Pucino v. Verizon Communications, held that repeated use of the word “bitch” could create a hostile work environment. I decided Dan Schwartz’s (of the Connecticut Employment Law Blog) blog post was worthy of the following tweet:
Misinterpreting my tweet, @CarlosDuranLive responded with the following:
Yikes. I share this little back-and-forth for two reasons: 1) words can often be misunderstood or taken out of context, and 2) your duty as an employer is to take seriously and investigate every complaint by every employee about words, no matter how silly the interpretation of events might be.
Here’s the rest of what I read this week:
Discrimination
HR’s uneven response to graffiti and swastikas: “Close” counts in horseshoes … not harassment – from Mindy Chapman’s Case in Point
Is It Okay for Women to Breastfeed at Work? – from Margaret Heffernan at bnet
Can Employers Prohibit Employees From Expressing Their Religious Views in the Workplace? – from New York Labor and Employment Law Report
How Sex Hurts the Workplace – from Manpower Employment Blawg
Hypnosis and Sex Harassment – from The Word on Employment Law with John Phillips
Harassment by Hypnosis – from Philip Miles’s Lawffice Space
Posner - “Nebulous suspicions voiced by a busybody” not protected under Title VII – from GT LE Blog
Diabetic Distinctions: THE ADA AND THE ADAAA – from Employment Essentials
No good deed goes unpunished – from Work Matters
“The Company You Keep”: Association Discrimination under the ADA – from George Lenard’s George's Employment Blawg
5 Women Sue Toy Company Claiming Sexual Harassment – from Christopher McKinney at the HR Lawyer’s Blog
“Same Actor” Defense – from The Labor and Employment Law Blog
Wage & Hour
DOL’s Trojan horse: “We’re from the DOL and We Can Help” – from Dean LeDoux at The HR Specialist
Latest DOL Opinion On Donning and Doffing, Not So Fast - 6th Circuit Says – from Michael Fox’s Jottings by an Employer’s Lawyer
Eleventh Circuit Rules for Employees on FLSA Enterprise Coverage – from Florida Employment Law Blog
“The onslaught of wage and hour litigation continues unabated” – how will you protect yourself? – from CPEhr
Health Care Industry: DOL Intensified Focus Mandates More Awareness – from Wage & Hour - Development & Highlights
A looming issue under the FLSA: overtime and technology – from Sindy Warren at the Warren & Hays Employment Law Blog
Walt Disney World Owes Cast Members Almost $450K Says U.S. Labor Department – from StitchKingdom.com
FMLA
FMLA FAQ - Is a cold or the flu a serious health condition? – from FMLA Insights
When Can an Employer Ask for a Second Opinion for FMLA Leave? – from Southwest Florida HR Law & Solutions
FMLA condition or insubordination? – from Stephen Meyer’s HR Cafe
Preventive Fitness for Duty Exams – from San Antonio Employment Law Blog
Litigation
What Was the Most Memorable Deposition You Have Been a Part Of? – from ABA Journal Daily News
Do You Have a Discovery Plan? – from Katherine Gallo’s Resolving Discovery Disputes
Sixth Circuit Applies Arbitrability Presumption to Question of Who May Arbitrate – from Sixth Circuit Appellate Blog
Litigators Losing Love of Arbitration Argue for Trials – from Law.com
Trade Secrets / Non-Competes
Caution Required: Severability Clauses in Non-Compete Agreements – from Trade Secrets & Non-Compete Blog
Controlling The Message - The First Step – from Trade Secret / Noncompete Blog
India and Trade Secrets: Former Board Member of Bombay Company Enjoined as to Some Information, But Not All, He Learned – from Trade Secrets Blog
Computer Misuse Statutes Playing Bigger Role In Non-Compete and Trade Secret Cases – from Delaware Non-Compete Law Blog
Labor
The Obama NLRB Starts Flexing Its Muscles – from Jeff Hirsch at the Workplace Prof Blog
NLRB to Reconsider Cases Involving Voluntary Recognition Agreements, Successor Employers – from Washington D.C. Employment Law Update
NLRB to Revisit Key Bush-Era Union Recognition Precedents – from Washington Labor & Employment Wire
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.
In June, the DOL’s Wage & Hour Division issued an Administrator’s Interpretation finding that that the time spent by employees donning and doffing (that is, putting on and taking off) protective equipment required by law is compensable and must be paid. It also means that an employee’s work day begins with the donning of required protective equipment and ends with its doffing, and all of the time in-between is payable work-time. On Tuesday, the 6th Circuit, addressed the same issue in an opinion that is binding on all Ohio employers.
In Franklin v. Kellogg Company [pdf], the Court concluded that the time spent walking between the locker room and the time clock after donning and before doffing protective gear is compensable working time.
The Court started with restating some general principles. Federal wage and hour laws define the “workday” as “the period between the commencement and completion on the same workday of an employee’s principal activity or activities.” Generally, time spent walking to and from a time clock is not compensable. During a “continuous workday,” however, the FLSA covers “any walking time that occurs after the beginning of the employee’s first principal activity and before the end of the employee’s last principal activity … must be compensated.” Principal activities are those that are an integral and indispensable part of the activities which the employee is employed to perform.
Kellogg required all hourly employees to wear company-provided uniforms (pants, snap-front shirts bearing the Kellogg logo and employee’s name, and slip-resistant shoes, and safety equipment (hair and beard nets, safety glasses, ear plugs, and bump caps). Kellogg mandated that employees change into their uniform and safety equipment upon arriving at the plant, and to change back into their regular clothes before leaving the plant, so that the uniform and safety equipment could be washed and cleaned. Kellogg claimed that changing into and out of the uniform and safety equipment is not “integral and indispensable” (and is therefore not compensable) under the FLSA.
The 6th Circuit disagreed, applying a broad interpretation of what is necessary for an employee to perform his or her job. The court evaluated these three factors—(1) whether the activity is required by the employer; (2) whether the activity is necessary for the employee to perform his or her duties; and (3) whether the activity primarily benefits the employer—and concluded:
[D]onning and doffing the uniform and equipment is both integral and indispensable. First, the activity is required by Kellogg. Second, wearing the uniform and equipment primarily benefits Kellogg. Certainly, the employees receive protection from physical harm by wearing the equipment. However, the benefit is primarily for Kellogg, because the uniform and equipment ensures sanitary working conditions and untainted products. Because Franklin would be able to physically complete her job without donning the uniform and equipment, … it is difficult to say that donning the items are necessary for her to perform her duties. Nonetheless, … we conclude that donning and doffing the uniform and standard equipment at issue here is a principal activity. Accordingly, under the continuous workday rule, Franklin may be entitled to payment for her post-donning and pre-doffing walking time.
This opinion has significant implications for any Ohio, Michigan, Kentucky, or Tennessee employer that requires its employees to change into protective gear or mandatory uniforms. After Kellogg, it is clear that the 6th Circuit is going to apply a very broad definition of “integral and indispensable,” even where uniforms or safety gear are not necessary for an employee to perform the job. As long as the donning and doffing is mandatory and provides some benefit to the employer (here, a sanitary workplace), it is compensable working time.
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.
Section 203(o) of the Fair Labor Standards Act allows an employer to refuse to pay employees for time spent changing clothes if it has been excluded by custom or practice under a bona fide collective bargaining agreement:
Hours Worked.—In determining for the purposes of sections 206 and 207 of this title the hours for which an employee is employed, there shall be excluded any time spent in changing clothes or washing at the beginning or end of each workday which was excluded from measured working time during the week involved by the express terms of or by custom or practice under a bona fide collective-bargaining agreement applicable to the particular employee.
Yesterday, in Franklin v. Kellogg Company [pdf], the 6th Circuit was presented with the question of whether the donning and doffing of safety equipment constitutes “changing clothes” under section 203(o). At issue was Kellogg’s long-standing policy, adopted by its union contract, of not paying employees for time spent putting on and taking off company-provided uniforms (pants, snap-front shirts bearing the
Kellogg logo and employee’s name, and slip-resistant shoes) and standard safety equipment (hair and beard nets, safety glasses, ear plugs, and bump caps).
After noting that the Department of Labor has changed its mind at least three times on whether safety equipment qualifies as “clothes” under 203(o), the 6th Circuit applied a common sense, dictionary definition to settle the dispute:
A leading dictionary defines “clothes” as “clothing,” which itself is defined as “covering for the human body or garments in general: all the garments and accessories worn by a person at one time.” … Thus, the plain meaning of the word “clothes” is quite expansive. However, because the statute indicates that § 203(o) applies to changing into clothes worn during the workday, Congress was referring to clothes worn for the workday and not simply “ordinary” clothes. … Accordingly, there is no reason to limit the definition of clothes to uniforms, which are made up of pants and shirts…. Instead, “clothes” within the meaning of § 203(o) refers to any “covering for the human body or garments in general,” particularly those worn for work….
Given the context of the workday, § 203(o) clearly applies to the uniform at issue in the case at hand. The remaining items—hair and beard nets, goggles, ear plugs, nonslip shoes, and a bump cap—are also properly construed as clothes within the meaning of § 203(o). Each of these items provides covering for the body. Although they also provide protection to the body, we see no reason to distinguish between protective and non-protective clothes. It is arguable that even the uniform, which is clearly clothing, provides protection to the body. We recognize that there may be some heavier protective equipment than what is at issue here that is not clothing within the meaning of § 203(o). However, the items at issue here are simply “standard safety equipment.”
In other words, because the safety equipment serves as a covering for the body, it qualifies as “clothes” under section 203(o).
Unless you are a unionized employer with a contract that codifies a custom or practice of nonpayment for time spent changing clothes, this opinion is of little practical import. It serves, however, as a good example of a court cutting to the chaff and applying its common sense to arrive at a practical result.
Tomorrow, I’ll be back with an analysis of the second part of this opinion (which will be of greater interest to many more employers)—whether Kellogg’s employees are entitled to be paid for time spent walking between the locker room and the time clock.
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.
While my practice is heavily slanted towards the representation of management in employment disputes, from time to time I represent employees. Usually, it’s in an advisory role with non-compete agreements, when someone leaves one position for another.
Employees faced with a non-compete when leaving a job to work for a competitor or quasi-competitor have three choices:
In all likelihood, if you ignore option number 1, or negotiations fail, you, and maybe your new employer, will get sued. The latter option, though, has some great upside for employees with specious non-competes. It lets you control the timing and venue of the lawsuit. It also lets you play offense instead of defense in trying to void or modify an overly broad agreement. For a good example of where this strategy worked well, see Jacono v. Invacare Corp. The downside, of course, is the expense. Something to consider if you are faced with a new job and a non-compete of dubious enforceability.
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.
I know what you’re thinking—not another post on wage and hour compliance. Workplace compliance specialist ELT published the results of a recent survey that caught my eye:
The money on the table for wage and hour class action settlements is huge, averaging $23.5M at the federal level and $24.4M at the state level. With the majority of employers already out of compliance with wage and hour laws, these are the kind of open and shut cases plaintiff’s law firms love to take on. Although these lawsuits are often positioned as valiant efforts toward worker protection, most of the money ends up in the hands of the attorneys while many class participants see as little as a few hundred dollars.
Average settlements over $20 million for “open and shut” cases should certainly get your attention. Yet, as long as businesses continue to ignore wage and hour compliance, I’ll continue to write posts about it.
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.
It all started with a short press release from the National Pest Management Association, which announced the results of the 2010 Comprehensive Global Bed Bug Study. Now the press is all over this bed bug story (The Bed Bug Hub: One-Stop Shop for Bed Bug Information for a collection of links), and people everywhere are itching. Once limited to hotels, the little buggers are even showing up in downtown offices, which poses its own unique set of problems for employers (More offices see bedbug infestations). I’m phantom-scratching myself as I write this. Yick!
Anyhow, here’s the rest of what I read this week:
Social Media & Technology
Twitter Law (cont.): Doctor Drives Off Cliff While Sending Twitter Message – from Bruce Carton at Law.com - Inside Opinions: Legal Blogs
Fired: Wore Wrong Hat, Tweeted Wrong Tweet, Misused Facebook – from The Word on Employment Law with John Phillips
Germany to Outlaw Facebook Stalking Employees – from Frank Roche’s KnowHR Blog
The Tsunami of Smartphones in Computer Forensics – from Sharon Nelson’s Ride The Lightning
Fired Employee Makes Unauthorized Changes to Company Website and How to Prevent this From Happening to Your Company – from Defending The Digital Workplace
Social Media Screening (Potential Hires): Part 1 – from Rob Radcliff’s Smooth Transitions
Wage & Hour
US Chamber of Commerce Apologizes, But Don’t Be Fooled – from Michael Whitney’s Work in Progress by
A Wrong and Wrong-Headed Look at the Wage Gap – from David Chavern at the ChamberPost
Just In Case You Didn’t the Feds Were Controlling Enough In HR – from Michael Haberman’s HR Observations
Hospitals and Nursing Homes Are Focus of the Department of Labor over Wage Violations – from Wage & Hour Defense Blog
Nursing Mothers Get a Timeout – from Matthew Gibson’s Wills & Wealth
Insufficient notice of need for FMLA leave proves fatal for insubordinate employee – from Sindy Warren at the Warren & Hays Employment Law Blog
Email Time is Probably Compensable Time – from Tom Crane San Antonio Employment Law Blog
FMLA FAQ - What To Expect When The DOL Comes Knocking – from FMLA Insights
Discrimination
Statistical Analysis of the Twombly Era – from Philip Miles’s Lawffice Space (guest post by Stephanie Thomas)
The ADA at 20 - how changes impact your business – from Employment Law Bits
Religious Discrimination Claims on High – from Employment Essentials
Tasting Breast Milk And Other Alleged Misdeeds in the Library of Congress – from Adria Martinelli at the Delaware Employment Law Blog
3rd Circuit Affirms Workplace Head Scarf Ban – from Fitzpatrick on Employment Law
Litigation
Lawsuit demands $38 quadrillion – from Walter Olson’s Overlawyered
$38 Quadrillion Demand is World’s Second Largest – from Lowering the Bar
Mediator needed to change ‘Ground Zero Mosque’ dialogue – from Lee Jay Berman’s Eye on Conflict
Civility and Litigation – from Evan Schaeffer’s Trial Practice Tips Weblog
Employee Relations
What Are Dress & Grooming Policies Doing to Your Talent Pool? – from Lance Haun at TLNT
How to Tell When Your Boss Is Lying: Cool New Study – from Bob Sutton
How Not to Obtain a Good Reference From a Former Employer – from employeescreenIQ Blog
Trade Secrets and Competition
Top Ten Mistakes Made by Departing Employees and Top Ten Things to Do When an Employee Resigns to Join a Competitor – from Trade Secrets & Non-Compete Blog
Eleventh Circuit Finds 43-City Non-Compete Enforceable Under Georgia Law – from Trading Secrets
Hooters and the Heavy Consequences of Having Boobs – from Elie Mysta at Abovethelaw.com
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.
Yesterday, the nation’s largest private employer asked the Supreme Court to review the class certification of the nation’s largest employment discrimination lawsuit. The case—Dukes v. Wal-Mart—is remarkable for several reasons:
Steven Greenhouse, at the New York Times, frames the dispute on the class certification issue:
Mr. Boutrous [one of Wal-Mart’s lawyers] said that even if the seven lead plaintiffs had suffered discrimination, that did not mean there was across-the-board bias at thousands of stores nationwide. He said the women’s claims should be tried individually, or if a manager discriminated against a store’s 200 women employees, then perhaps as a 200-member class action for those women.
Joseph Sellers, a lawyer for the plaintiffs, said the case should be a class action because Wal-Mart had and still has a common set of personnel policies at all of its stores. “We regard them as cookie-cutter operations that are similar to each other,” he said.
Wal-Mart—which strongly disputes liability and describes itself as “a leader in fostering the advancement and success of women in the workplace”—has asked the Supreme Court to review the propriety of a class action seeking money damages under the class action provision for injunctive or declaratory relief. The New York Times has available for download a PDF of Wal-Mart’s brief.
There is a lot at stake for businesses in the Supreme Court’s decision of whether to accept review of this class certification. A refusal by the Supreme Court to hear this case, or, worse yet, an affirming of the class by the Court, would greatly increase the risk for employers defending employment decisions (and resulting class actions) that involve disparate groups of employees, reporting to different managers, and working in different facilities. It would result in larger classes with a higher potential for recovery, neither of which is good for companies. It’s safe to say that the class action epidemic in this country would get a whole lot worse.
I am certain I will be one of many blogger commenting today on this case. For a snapshot of what some others have already said, take a look at the following:
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.
Flash forward six months. The lawyer for the ex-employee (now a plaintiff) is deposing the same executive. Her lawyer marks your position statement as Exhibit 1, and the executive re-affirms his story. Her lawyer then marks as Exhibit 2 the discovery responses in which the company denied that any pornographic photos existed, and the executive again re-affirms his story. When her lawyer marks a manila envelope as Exhibit 3, you start to feel a pit in your stomach. When the executive opens the envelope and reveals a half-dozen pornographic photos, the pit moves up into your throat. When you realize that the photos are of the same executive cavorting with two women—whom he identifies as “escorts”—you just about throw up. And the case settles for much more than it was worth.
I often relay this story to clients from whom I think I may not be getting the whole story. I remind them that whatever they tell me is privileged. I tell them that they might think they are protecting their company, but in this age of email, and Facebook, and computer forensics, it is likely, if not certain, that the truth will eventually come out. I explain that when it does, the liability risk, potential verdict amount, and the value of any settlement goes up exponentially.
The word “candor” is one of the the most important words to lawyers. It’s in our ethical rules—attorneys owe a duty of candor to the tribunal. Almost as important, however, is the candor between a lawyer and client. We owe you a responsibility to be completely honest with you about your case and the risks it presents. We cannot do that, however, without your reciprocal honesty about the facts. It’s our job to tell your most compelling story. We cannot do that, though, if we don’t know what that story truly is.
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.
Earlier this year, the Department of Labor launched its We Can Help website, offering employees a one-stop-shop for wage and hour information, and information on how to file complaints against their employers. The DOL recently put a little more meat on its regulatory plans, announcing its updated five-year strategic plan, called “Good Jobs for Everyone” [pdf]. The plan has five strategic goals:
One key provision of this plan caught my eye, and should concern employers.
Outcome Goal 1.5—Secure wages and overtime. This goal has four key components:
Protecting vulnerable workers: The DOL believes that employers who use contract or temporary workers, in addition to young workers, are at a greater risk for wage and hour violations. It will target these types of workers for greater protection and enforcement efforts.
Targeting high-risk fissured industries: The DOL will specifically target the following “high‐risk” industries for greater enforcement: agriculture, janitorial services, construction, and hotels/motels. The DOL will continue to conduct investigation‐based compliance evaluations to determine the percent of prior violators who come into and stay in compliance with the FLSA.
Securing sustained compliance: The DOL will enhance its complaint investigation program, in addition to expanding pubic awareness and outreach. Most notably, the DOL will target the most persistent violators by pursuing corporate‐wide compliance strategies and by imposing appropriate penalties and sanctions.
Identifying employee misclassifications: The DOL is concerned that employers are misclassifying employees and independent contractors to deny access to benefits and legal protections, such as family and medical leave, overtime, minimum wage, and unemployment insurance. The FLSA recordkeeping regulations under development will require that employers notify each worker of their rights under the FLSA, and provide employees with information regarding their hours worked and wage computations.
In other words, the DOL is making good on its promise to increase monitoring and enforcement of wage and hour laws, specifically as they pertain to low-wage/high-risk employees, and employee/contractor misclassifications. For more on what this means for you and your business, I recommend the following:
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.
Just because a specific statute does not provide a remedy to a terminated employee does not mean that the employee cannot pursue a claim. In fact, Ohio recognizes a wrongful discharge claim for just this situation. When an employee’s termination offends a clearly defined public policy, courts will permit that employee to pursue a claim for wrongful discharge.
Dohme v. Eurand America provides a good example. In that case, Eurand fired Dohme after he provided an on-site insurance inspector with computer printouts showing overdue fire alarm inspections. Two days late, Eurand fired him. Among other claims, Dohme asserted that his termination violated a public policy in favor of workplace safety. The appellate court agreed:
An employee who reports fire safety concerns to the employer’s insurance inspector, regardless of the employee’s intent in doing so, is protected from being fired solely for the sharing of the safety information. Eurand argues that Dohme’s claim must fail because Dohme did not report the safety issue to a governmental employee. We do not agree. It is the retaliatory action of the employer that triggers an action for violation of the public policy favoring workplace safety.
Regardless of whether a specific statute exists to protect an employee, courts will often find a way to protect someone when it is perceived that an employer retaliated. If it looks like you are firing someone “because of” some complaint the employee made, pause and give some serious thought to the decision before pulling the trigger.
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.
I spend part of this week conducting social media training for a client. I spoke to groups of managers and supervisors. What surprised me most about their collective response to the policy wasn’t the ban on personal social media at work, or their potential personal liability for harassment under Ohio law, but the fact that their employer expected them to be responsible for what their friends and followers posted on their social media sites that could potentially reflect poorly on the company. As someone who is well engaged with social media, I also found it interesting that while the group was nearly unanimous in their use of Facebook and LinkedIn, no one (but me) tweeted. What I took away from these sessions was that if you are going to be rolling out a social media policy—and you should be—you should incorporate training sessions about the policy. What seems straightforward to you might be troubling to your employees. It also makes sense to cover the social media basics, because you will have employees that can’t tell a tweet from Tweety Bird.
Here’s what I read this week:
Wage & Hour
Yes, You Can Get Fired After Taking Maternity Leave: The confusing state of family-leave policies – from Sharon Lerner at Slate
Do You Have to Pay People Who Work the Computer Help Desk Overtime Pay? – from Overtime Advisor
Where’s MY Pay Czar? Why We Need a Total Rewards Audit of Congress – from Ann Bares at Compensation Force
Independent Contractors and the ABC Test: The Future is NOW – from Michael Haberman’s HR Observations
US Chamber: Equal Pay “a Fetish for Money,” Women Should “Choose the Right Partner at Home” – from Work in Progress
Union Representation Activities: Are They “Working Time” Under The FLSA? – from Wage & Hour—Development & Highlights
Unpaid Internships – from Matthew Gibson’s Wills & Wealth
The Slacker: Striving For Mediocre – from I Hate People…But It’s Nothing Personal
Police Sergeant Sues for Overtime Based on Time Spent Reading and Responding to E-mails – from Texas Employment Law Update
Discrimination
Tick, Tock. Watch the (Retaliation) Clock – from Mindy Chapman’s Case In Point
It Comes with the Job—Or not – from Workplace Prof Blog
2nd Circuit issues interesting opinion on sexually hostile environment Mike Maslanka’s – from Work Matters
“Similarly situated” can be a high bar – from Sindy Warren at the Warren & Hays Employment Law Blog
Service dog’s untimely calls of nature – from Walter Olson’s Overlawyered
Human Resources & Employee Relations
I’m Mad As Hell? – from The Word on Employment Law with John Phillips
I Don’t Think That Constitution Means What You Think It Does – from Popehat
A lesson in how NOT to fire an insubordinate employee – from Stephen Meyer’s HR Cafe
Hospital Workers Post Pics of Dying Man on Facebook: Highlights Need to Educate Employees on Proper Use of Social Media – from Megan Erickson’s Social Networking Law Blog
Workplace Violence Prevention: Having Police or Security Available at a Termination Meeting – from Dan Schwartz’s Connecticut Employment Law Blog
Proof That Background Checks Actually Work: If You Use Them – from Nick Fishman at the employeescreenIQ Blog
The Importance of Office Space – from Adria Martinelli at the Delaware Employment Law Blog
Telling lies hard work in workplace – from Andrea Kay at the Pittsburgh Tribune
Monitoring the Monitors – from Sarah Needleman at the Wall Street Journal
Workplace smoking bans spark obesity? – from USA Today
Trade Secrets
Lawsuit of the Day: Major Lindsey Files RICO Action Against Former Employee – from David Lat at Abovethelaw.com
Training and Social Networking Policies: Essential Elements in Protecting Your Company Secrets – from TLNT
Departing Wells Fargo Vice-President Accused of Looting Data and Clients – from Trade Secrets Blog
Eighth Circuit Affirms Award Of $1,369,921 As Liquidated Damages In No-Compete Case – from Trade Secrets and Noncompete Blog
Litigation
SANCTIONS—DENIED!!! – from Katherine Gallo’s Resolving Discovery Disputes
80% of Employers’ Summary Judgment Motions Granted – from Philip Miles’s Lawffice Space
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.
Rudolph Escher claimed that he was terminated in retaliation for complaints he made about his employer’s designation and accounting of his military leave time, in violation of the Uniformed Services Employment and Reemployment Rights Act. As it turned out, his employer fired him for egregious misuse of its computer system through the use of that system to perform substantial work for the Naval Reserves:
Samuel Long, a human resources specialist, reviewed the e-mails and documents Escher had stored on the server. Long initially discovered more than 3,200 e-mails, from 1999-2005, in more than 240 individually named folders and subfolders. He also discovered files outside the e-mail system containing: 18 PowerPoint Presentations; 75 Word documents; 38 Excel spreadsheets; 12 PDF documents; and 140 miscellaneous documents. Long determined that Escher was working on these e-mails during work hours, and using his BWXT e-mail address as an automatic signature, which invited recipients to respond to it. Long could tell from his review that Escher was spending “an inordinate amount of time by reviewing the e-mails, by replying to the e-mails, by writing paragraph after paragraph in response to different e-mails.”
If you are going to moonlight, best not to do business through your main employer’s computer system. Needless to say, the 6th Circuit upheld the trial court’s dismissal of Escher’s USERRA lawsuit. The case is Escher v. BWXT Y-12, LLC (6th Cir. 8/18/10) [pdf].
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.
Sterilite is an “at will” employer in that your employment may be terminated with or without cause and with or without notice at any time at the option of either you or Sterilite, except as otherwise provided by law…. No statement or promise by a supervisor, manager or department head, either verbal or written, may be interpreted as a change in policy nor will it constitute an employment agreement with any employee.Additionally, the employee signed the following acknowledgement form upon receipt of the handbook:
I understand that this handbook is not a contract of employment, express or implied, between Sterilite and me and that I should not view it as such, or a
guarantee of employment for any specific duration.
I further understand that no manager or representative of Sterilite, other than the president, has the authority to enter into any agreement guaranteeing employment for any specific period of time. I also understand that any such agreement, if made, shall not be valid or enforceable unless it is in a formal written agreement signed by both the president and me.Based on this language, the Court affirmed the dismissal of the employee’s claims, which were premised on the handbook constituting a contact of employment:
As a general rule in Ohio, employee handbooks do not constitute an employment contract. The handbook is simply a unilateral statement of rules and policies creating no obligations or rights…. [A]n employee handbook that expressly disclaimed any employment contract could not be characterized as an employment contract.Reviews of disclaimers should be part of any handbook audit. They will likely make the difference between whether your handbook is a series of aphoristic aspirations and guidelines, or a policy manual that binds your conduct as a contract between your business and your employees.
Rule 13.4 of the USGA’s Rules of Golf provides a two stroke penalty for grounding one’s club in a hazard. Certainly Dustin Johnson knew this rule when he approached his second shot on the final hole of Sunday’s PGA Championship leading by one. What he did not know was that trampled area in which his ball rested was a bunker. The two stroke penalty he incurred when he grounded his club cost him the tournament, his first major championship, a five-year tour exemption, and the more than $1M difference between first and fifth places.
His mistake was that he did not read the tournament rules, provided to him before the tournament started and conspicuously posted in the locker room: “All areas of the course that were designed and built as sand bunkers will be played as bunkers (hazards), whether or not they have been raked. This will mean that many bunkers positioned outside of the ropes, as well some areas of bunkers inside the ropes, close to the rope line, will likely include numerous footprints, heel prints and tire tracks during the play of the Championship. Such irregularities of surface are a part of the game and no free relief will be available from these conditions.”
He did not run from his mistake. Instead, he took responsibility for not knowing the rules. From ESPN.com:
I just thought I was on a piece of dirt that the crowd had trampled down…. I never thought I was in a sand trap. It never once crossed my mind that I was in a bunker…. Obviously I know the rules of golf and I can’t ground my club in a bunker, but that was just one situation I guess. Maybe I should have looked to the rule sheet a little harder.
I cannot tell you how many depositions I’ve taken in which an employee tried to justify his or her misconduct by claiming not to have read the handbook. The common refrain: “No one reads those things.” Never mind their signatures on receipts stating that they read the handbook and had the opportunity to ask questions. Consider relaying Dustin Johnson’s story to your new employees during orientation. Maybe it will incent them to do what they should be doing in the first place—reading the handbook and asking questions.
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.
Wallace presented sufficient evidence of back trouble—surgery and rehabilitation—to establish that he had a physiological condition affecting his musculoskelatal system. Also, the evidence shows that Wallace had a heart attack and heart-bypass surgery, evidence that is adequate to establish that he had heart disease. But whether these physical impairments substantially limited one of his major life activities is less clear.
The evidence of the major life activities that Wallace’s impairments affected is composed only of conclusory statements. Wallace’s affidavit states that “[a]s a result of my heart attack … I suffered from shortness of breath,” … and that he had an “impaired ability to work long hours because of shortness of breath, dizziness (standing), [and] muscle cramps (walking).” … The evidence therefore, while establishing that Wallace had physical impairments, does not establish that the physical impairments substantially limited one of Wallace’s major life activities.
This result seems reasonable. Wallace was not “disabled” because his medical conditions, while real, did not have much of an effect on his day-to-day activities. Yet, under the ADA Amendments Act, this issue would likely have a different result. Under the ADAAA, major life activities do not only include day-to-day activities such as caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working, but they also include the operation of a major bodily functions, including the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions. Under the current iteration of the ADA, a heart attack, which affects the circulatory system and caused Wallace shortness of breath, would likely qualify as a disability.
Under the ADAAA, almost every medical condition will qualify as a disability. The focus in disability discrimination cases has shifted from whether an employee is legally “disabled” to whether they are “qualified” (whether they can perform the essential functions of the job with or without reasonable accommodation), and whether the employer reasonably accommodated the disability.
Yet, as the concurring opinion in Wallace aptly pointed out, Wallace still loses this case on the issue of whether he was a “qualified individual with a disability”:
Even if Wallace’s adverse health conditions were to constitute a disability, Wallace would also have to prove that he could safely and substantially perform the essential functions of the job in question in order to prove his disability claim against Mantych…. The hours of work an employer requires of an employee, unless otherwise limited by law or by contract, are functions of the job which are as essential to its performance as is the employee’s ability to perform the particular tasks the job involves. It is undisputed that Wallace is unable, due to his adverse health conditions, to work the number of hours per week that Mantych requires. There is no evidence that Mantych had agreed to allow Wallace to work the reduced number of hours per week to which his health condition now limits him. Therefore, Wallace cannot prove that he can substantially perform the essential functions of the job from which he was discharged, preventing a judgment against Mantych on Wallace’s claim for disability discrimination.
The result of this case may be the same under the ADA and the ADAAA, but the route to that outcome is very different. The fact that an employee such as Dan Wallace might qualify as disabled means that his employer must engage in the interactive process, determine an appropriate reasonable accommodation, and make that accommodation work. In other words, employers must be more attuned to employees’ medical conditions, because more employees will qualify for protection under the ADA. Because the ADA is partly a proactive statute, this increased coverage imposes increased responsibilities that employers ignore at their own risk.
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.
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
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 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.
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.
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.
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.
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.
