WIRTW #143 (the “Are you ready for some football edition?”)

This weekend truly is one of the best sports weekends of the year. It’s opening Sunday for the NFL. Everyone’s 0-0 (even the Browns, who, for the record, I predict will be a very competitive 6-10 this season). For the fantasy football junkies out there, I recommend Happy New Year! Or, Happy First Day of (Fantasy) Football – from Daniel Schwartz’s Connecticut Employment Law Blog. As for my fantasy team, Adrian Peterson had a very pedestrian 19 carries for 87 yards last night. AP’s gotta pick it up if I’m going to make it back to the Superbowl this year.

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

Discrimination

• Is “The Big One” Too Big? The Wal-Mart Class Action Size – from The Proactive Employer

• Mark Hurd, HP & Oracle: Adventures in Employment Law – from Tim Eavenson’s Current Employment

• The Clash Between the “Disney Look” and Religious Customs – from The DIS Unplugged Disney Blog

• The Interactive Process Requires Employee to Consider Alternatives – from Tom Crane’s San Antonio Employment Law Blog

• The Eleventh Circuit and the Word “Boy” – from Workplace Prof Blog

• Actionable hostile work environment can be based upon a single action – from Maria Danaher at Employment Law Matters

• Can Employers Prohibit Employees From Expressing Their Religious Views in the Workplace? – from Christopher McKinney’s HR Lawyer’s Blog

Wage & Hour

• FMLA FAQ - Can We Require an Employee to See Our Doctor Before Returning to Work? – from FMLA Insights

• Renegotiating Union Contracts: I Got 99 Problems, Pay is Just One... – from Kris Dunn, The HR Capitalist

• A Closer Look at Occupation in Explaining the Gender Wage Gap – from Stephanie Thomas at Compensation Cafe

• Is PDA Use Relevant As To Exempt Employees? – from Wage and Hour Laws Blog

• Good News! The Sex Pay Gap Is Gone! – from Michael Haberman’s HR Observations

Social Media

• Appeals Court Rules Counsel May 'Google' Potential Jurors During Jury Selection – from Bruce Carton at Law.com - Inside Opinions: Legal Blogs

• Social Media in the Jury Box – from Molly DiBianca’s Going Paperless

• Trashing ex-employers – from Jen Weigel at the Chicago Tribune

• Should Employers Be Forbidden to Facebook You? – from Megan Friedman at Time Magazine

Background Screening

• Forging Criminal Background Checks Can Be Costly – from employeescreenIQ Blog

• Are felons achieving new status? – from Julie DelCour at the Tulsa World

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

Is organized labor finally making its resurgence?

Maybe its appropriate (or entirely a coincidence) that during the week in which we celebrate Labor Day, there have been so many stories in the news and in blogs discussing organized labor. Some proof, you ask?

• Board Decision Approves Stationary Bannering as Lawful Tactic in Secondary Boycotts – from the Washington DC Employment Law Update (discussing United Brotherhood of Carpenters and Joiners of America, Local Union No. 1506, in which the NLRB, in a partisan-line 3-2 decision, concluded that pro-union bannering, when conducted peaceably and independent of other, possibly coercive, conduct, is lawful).

• Obama NLRB Prepares To Eliminate Right to Secret Ballot for Union Organizing – from Mike Eastman at the Chamber Post (discussing the NLRB’s intent to “reconsider” Dana Corp., its 2007 decision which provided a limited window for secret-ballot decertifications following a card check recognition of a union).

• Organized Labor Targets Carwashes – from The Word on Employment Law with John Philips (discussing unions’ efforts to organize carwashes in Southern California).

• Big Labor’s Power Grab – from Mark Mix at the National Review, c/o npr.org (discussing unions’ efforts to overturn pro-management Bush-era NLRB decisions).

• Nostalgia For Unions – from E. J. Dionne at The New Republic, also c/o npr.org (yearning for labor unions in these tough economic times).

What does this all mean? Maybe nothing? More likely, organized labor has decided to stop waiting for President Obama to make good on certain campaign promises (like the Employee Free Choice Act) and take matters into its own hands by taking advantage of its majority on the NLRB. Businesses should prepare themselves for an upswing in organizing efforts, in addition to the possibility of a pro-union NLRB making decisions that reach outside of unionized workplaces to regulate the employer/employee relationship in general.

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

EEOC settlement provides really good practice points for combating harassment

Last week, the EEOC announced the settlement of the sexual harassment claims of 21 female janitorial workers against their employer, ABM Industries. The allegations were pretty horrific:

The EEOC asserted that the 21 class members were victims of varying degrees of unwelcome touching, explicit sexual comments and requests for sex by 14 male co-workers and supervisors, one of whom was a registered sex offender. Some of the harassers allegedly often exposed themselves, groped female employees’ private parts from behind, and even raped at least one of the victims, the EEOC said.

Worse yet, the lawsuit “charged that ABM failed to respond to the employees’ repeated complaints of harassment.” According to the EEOC, “Employers must implement strict policies and procedures to safeguard against such harassment, and take employee complaints seriously so that they not rise to the level of severity we saw in this case.”

The employer agreed to pay the class $5.8M, in addition to changes in how it handles workplace harassment. The agreed-to policy changes offer all employers some good lessons in how to proactively handle harassment:

• Designate an outside equal employment opportunity monitor to ensure the effectiveness of investigations, complaint policies and procedures, and assist in anti-harassment training to employees.
• Ensure that investigators of harassment complaints are trained thoroughly to investigate internal complaints of discrimination, harassment and retaliation 
• Establish a toll-free telephone hotline to receive complaints of harassment and retaliation.
• Provide anti-harassment training to employees in both English and Spanish to include a video message from the chief executive officer emphasizing zero tolerance for harassment and retaliation. 
• Conduct internal compliance audits at worksites.

Depending on the size of your organization, these specifics may not make sense. All businesses, though, should take the general lesson to heart. An anti-harassment policy is not worth the paper it’s printed on unless the company has a culture that not only abhors harassment, but takes all complaints seriously. Taking complaints seriously includes ensuring that all employees (no matter their native language or level of education) understand the harassment policy, that employees have more than one avenue to make complaints, that investigators are properly trained, and that the company regularly reviews its policies and procedures for compliance and effectiveness. No anti-harassment program is perfect, but designing one around these guidelines will greatly help in keeping you away from multi-million dollar lawsuits.

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

Do you know? FMLA medical certifications: if you don't ask, then you can't deny

In Branham v. Gannett Satellite Information (9/2/10) [pdf], the Sixth Circuit faced the issue of whether a negative medical certification (that is, one that says an employee is not limited in performing the essential functions of the job) bars FMLA leave if the employee presents an opposite certification during the same certification period. Under the FMLA's regulations, an employer must give an employee 15 days to prevent a medical certification for an unforeseeable leave. During that 15 day period, Deborah Branham presented Gannett an initial form from her doctor which stated that she could perform the essential functions of her job, and a second form which stated that she could not. While the latter would have qualified her for FMLA leave, Gannett took the position that the initial negative certification disposed of the issue for the entire leave, and it could ignore the second certification. The Sixth Circuit skirted this interesting issue, but in the process made an important point about employers' obligations in following the rules and asking for medical certifications.

The rules on medical certifications under the FMLA are fairly straight-forward. After an employee asks for FMLA leave, an employer may require that the employee support the request with a certification issued by the employee's health care provider. This request by the employer must be in writing and must detail the employee’s specific obligation to provide the certification and the consequences of failing to do so (such as the denial of leave). The request may be oral only if (1) the employee handbook or other written FMLA policy clearly provided that medical certification would be required, and (2) the employee sought FMLA leave some time in the previous six months and received written notice of the medical-certification requirement at that time. If an employer uses the FMLA forms drafted by the DOL, the written notice will take care of itself in most instances. Based on these rules, the court denied concluded that Gannett's denial of Branham's leave request violated the FMLA.

Branham satisfied her notification requirement on November 13, 2006, when she asked Buhler “about taking leave, because [she] still wasn’t feeling well and had numerous doctors’ appointments scheduled for November and December.” But Gannett never properly triggered the additional duty to provide a medical certification supporting her claim. The district court found that Gannett requested certification on November 13, the day on which Buhler told Branham over the phone to come to the office and sign a short-term-disability form to “see if she qualified for anything.” In her deposition, however, Buhler testified that “Michele and I never at any time discussed FMLA leave.” It is true that Gannett’s short-term-disability form doubled as its FMLA leave form, but it is clear that Buhler communicated to Branham no information about the FMLA certification requirement, the fact that such certification was due within fifteen days, or the consequences of failing to return an adequate certification.... We therefore must conclude that Gannett was not entitled to delay or deny leave to Branham on the basis of the certification requirement. 

In this case, Gannett's biggest mistake was using its own form (the short term disability form) for FMLA purposes. It should have used the DOL's suggested forms. Part B of form WH-381, entitled "Notice of Eligibility and Rights & Responsibilities" [pdf], states:

As explained in Part A, you meet the eligibility requirements for taking FMLA leave and still have FMLA leave available in the applicable 12-month period. However, in order for us to determine whether your absence qualifies as FMLA leave, you must return the following information to us by _________________. (If a certification is requested, employers must allow at least 15 calendar days from receipt of this notice; additional time may be required in some circumstances.) If sufficient information is not provided in a timely manner, your leave may be denied.

The form then has this check-box: "Sufficient certification to support your request for FMLA leave. A certification form that sets forth the information necessary to support your request ____is/____ is not enclosed." All an employer needs to do to satisfy its requirement to ask for the certification in writing is use this form, fill in the date by which certification must be returned, check the box asking for the certification, and provide a copy of form WH-380-E, Certification of Health Care Provider for Employee’s Serious Health Condition [pdf]. The rules are not complicated, but, as Branham v. Gannett Satellite Information illustrates, the penalties for not following them are punitive.

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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.

Happy Labor Day

http://www.gocomics.com/reallifeadventures/2010/09/06/

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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 #142 (“It’s the bitches that’ll get yas” edition)

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

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

6th Circuit re-defines walking time as working time under the FLSA

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.

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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.

You are what you wear—at least according to the 6th Circuit and “donning and doffing”

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.

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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? Challenging non-competition agreements

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:

1. Approach the old employer—either as part of severance negotiations or otherwise—and attempt to negotiate or buy your way out of the non-compete.
2. Work for the competitor and wait to get sued.
3. Preemptively sue your old employer seeking a declaration that the non-compete is invalid.

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.

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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.

Not another post on wage and hour class actions?

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.

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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 #141 (the creepy-crawly edition)

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

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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.

Wal-Mart seeks Supreme Court review of billion-dollar class action

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:

1. It has been pending for nine years, and yet the parties are still dealing with the preliminary procedural issue of whether this case will proceed as a class action.
2. The plaintiffs seek a nationwide class, to include every woman employed by Wal-Mart for the past decade, in any of Wal-Mart’s 3,400 separately managed stores, across 41 regions and 400 districts, in any of 53 departments and 170 different job classifications. In other words, there is not much similar about these women other then the fact that they all worked for Wal-Mart.
3. The potential class is more than 1.5 million women.
4. The potential damages are billions.

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:

• Dukes v. Wal-Mart certiorari petition – from Ted Frank at PointOfLaw Forum
• Dukes v. Wal-Mart Cert. Petition – from Workplace Prof Blog
• Wal-Mart appeals in job bias case – from SCOTUSblog

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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 worst feeling ever, and importance of candor

Imagine a sexual harassment EEOC charge which alleges that a corporate executive displayed pornographic images on his computer to a female subordinate. You interview the executive, in addition to everyone else at the company who could have seen the images; everyone denies they existed. In fact, the executive has a plausible explanation. The charging party is a disgruntled, terminated employee who may have accidentally received an email forward of a dirty joke, and is now exaggerating that one isolated incident to extort money through a bogus claim. You have no reason to disbelieve this executive and everyone else at the company. You respond accordingly in the company’s position statement to the EEOC, which finds no probable cause.

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.

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

Do you know? The Department of Labor updates its strategic plan for the next five years

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:

1. Prepare workers for good jobs and ensure fair compensation.
2. Ensure workplaces are safe and healthy.
3. Assure fair and high quality work‐life environments.
4. Secure health benefits and, for those not working, provide income security.
5. Produce timely and accurate data on the economic conditions of workers and their families.

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:

• Compliance and training key to victory in overtime lawsuit.
• Study of American working conditions presents opportunity for employers to tune up legal compliance.
• Department of Labor to step up enforcement; employers should step up self-audits.
• Make a list and check it twice – FLSA exemptions.
• Department of Labor investigations highlight important wage and hour compliance issues.
• Use a wage and hour audit to proactively head off claims.

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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.

Helping those who help themselves: Be wary of common law retaliation claims

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.

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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 #140 (the social media training edition)

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

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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.

Evidence of moonlighting and misuse of email system prove fatal to retaliation claim

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].

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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? Handbook disclaimers

Yesterday, I noted that employees often feign ignorance of employee handbooks. Here’s a textbook example.

In Steadman v. Sterilite Corp. (Ohio Ct. App. 7/19/10) [pdf], the employer’s handbook contained the following language:

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.

On Dustin Johnson and knowing the rules: A lesson for 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.

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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 real life example of the difference between the old ADA and the amended ADA

Two years after Mantych Metalworking hired Dan Wallace, he suffered a heart attack. He also had a history of back problems. Five years later, Mantych fired him, and he claimed disability discrimination. In Wallace v. Mantych Metalworking (Ohio Ct. App. 8/13/2010) [pdf] the court of appeals concluded that Wallace’s medical problems did not rise to the level of a disability worth of protection from discrimination:

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.

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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.