NLRB to permit “sweetheart” contracts

Imagine a union comes to you claiming to have signed authorization cards from a majority of your employees and offers you the following proposition. Instead of holding a secret ballot election, you recognize the union based on the signed cards. In exchange, the union will give you a sweetheart contract—a pre-negotiated contract with favorable terms and conditions. Here’s the catch. The contract has to contain a neutrality clause—a promise by the company to remain neutral in future organizing campaigns, forego secret ballot elections at any other facility, and recognize the union based upon a presentation of an authorization card majority at any other facility.

In Dana Corp. (10/6/10) [pdf], the NLRB sanctioned this practice as lawful under federal labor laws, and rejected a challenged by a group of anti-union employees that their employer had illegally colluded with the union:

The ultimate object of the National Labor Relations Act … is “industrial peace.” [I]t is well settled, consistent with those policies, that an employer may voluntarily recognize a union that has demonstrated majority support by means other than an election, including … authorization cards signed by a majority of the unit employees. Courts have endorsed voluntary recognition and deemed it “a favored element of national labor policy.” The Board should hesitate before creating new obstacles to voluntary recognition….

Categorically prohibiting pre-recognition negotiations over substantive issues would needlessly preclude unions and employers from confronting workplace challenges in a strategic manner that serves the employer’s needs, creates a more hospitable environment for collective bargaining, and—because no recognition is granted unless and until the union has majority support—still preserves employee free choice.

Just because you can agree to this “sweetheart” relationship with a union does not mean that you should. As the NLRB noted, “In practice, an employer’s willingness to voluntarily recognize a union may turn on the employer’s ability to predict the consequences of doing so.” An employer’s willingness to voluntarily recognize a union will also turn on its ability to predict the outcome of a secret ballot election. Currently, unions win 65.6% of secret ballot elections. Before you agree to take a union up on its voluntary recognition offer, you need to make an educated guess on whether your company falls within the one-out-of-three that wins a union election. If so, reject the union’s offer and opt for the election. Otherwise, you might be hedging your bets when you don’t have to.

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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 #157 (the naughty or nice edition)

Peter the Elf graces our home every year between Thanksgiving night and Christmas Eve. He’s my family’s Elf on the Shelf. If you don’t have kids (or don’t celebrate Christmas), the Elf on the Shelf (available at Amazon and other fine retailers) is Santa’s eyes and ears. Each night after the kids go to bed he flies back to the North Pole to report to Santa on whether the kids are being naughty or nice. Each morning, before the kids awaken, he returns, perched in a different spot. The children can talk to Peter, but he is not allowed to talk back. But, if they touch Peter, he loses his Christmas magic and cannot fly back to the North Pole to tell Santa how good they’ve been (although I guess if they’ve been naughty they have nothing to lose).

My daughter (age 4½) added these words of wisdom about Peter in deciding to get dressed in her bedroom instead of our family room: “I don’t want Peter to see me naked. Then I’ll definitely get rocks for Christmas.”

Employers, were you naughty or nice in 2010? There’s still time to get on my nice list by clicking over to the ABA Blawg 100 and casting your vote for the Ohio Employer’s Law Blog.

Here are two great holiday-related posts I read this week:

• Twas the Night Before Christmas -- Non-Compete Style – from Trade Secrets & Non-Compete Blog

• A Festivus for the Rest of Us, or at Least for This Guy – from Lowering the Bar

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

Discrimination

• People are Special – and not always in a good way – from Rob Schwartz’s Fairness Matters

• It couldn’t POSSIBLY be harassment... or could it? – from Stephen Meyer’s HR Cafe

• Duty of Loyalty vs. Opposing Discrimination – from Workplace Prof Blog

• Disciplining a harassment complainant: tread carefully but it can be done – from Warren & Hays Employment Law Blog

• Weighing In On Wal-Mart – from Stephanie Thomas at Compensation Cafe

• The sound of accommodation: do you hear what I hear? – from Donna Seale’s Human Rights in the Workplace

• An Obvious Add to Your Harassment Training Platform: Top Ten Lists of Hotness – from Kris Dunn, The HR Capitalist

• Jamie Errico sues over alleged ban on wearing crucifix to work – from the New York Post

• Employer’s Remarks About Employee’s Miscarriage and Pregnancy Allow Discrimination Claim to Move Forward – from Wisconsin Employment & Labor Law Blog

Social Media

• Is it Ever a Good Idea to Friend Subordinates or, for Teachers, Students? – from Daniel Schwartz’s Connecticut Employment Law Blog

• Does Updating a Facebook Page Violate a Non-Compete? – from HR Daily Advisor

• What You Wish Your Lawyer Had Told You About Social Media – from Social Media Law Update

Privacy & Technology

• “Why Companies Don't Deserve Personal Privacy Rights” – from Howard Bashman’s How Appealing

• “1984” Big Brother in the Workplace? – from Minnesota Labor & Employment Law Blog

• The internet and the ‘end of privacy’ – from CNN

HR & Employee Relations

• Bad Background Checks Equal Bad Hiring Decisions – from employeescreenIQ Blog

• “Have you been denied a job based on your Criminal History?” – from Walter Olson’s Overlawyered

• If Labor Law is so Unfair, Why Then.... – from Michael Haberman’s HR Observations

• Whistleblower-Palooza – from Philip Miles’s Lawffice Space

• Sheer Dress Code Awesomeness – from Evil HR Lady

• Garlic and Onions? Just Say No, Swiss Bank Says in New Dress Code – from Joe’s HR and Benefits Blog

• ‘Hostile Makeover’ Pits Employer Against Employee Concerning Unhealthy Habits – from ABA Journal Daily News

• Focus on Workplace Flexibility – The Rise of Older Workers and Caregivers – from Corporate Voices for Working Families

• Death to the write-up? – from Work Matters

Wage & Hour

• Supreme Court May Weigh in on When Employers Can Take Advantage of the “Fluctuating Workweek” Method for Calculating Overtime – from Wage & Hour Defense Blog

• States, feds crack down on firms using ‘contract workers’ – from USAToday

• Employer can require compliance with call-in policy, even during FMLA leave – from Employment Law Matters

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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.

University of Minnesota sidesteps minimum wage violations for “volunteer” employees

Have you seen the amazing video of the roof the Metrodome collapsing last weekend?

In need of a temporary home to host this Monday night’s game, the Vikings turned to the University of Minnesota. The problem, though, is that the University’s stadium is under five-foot snow drifts. To clear the field and seating bowl, the University asked for volunteers to work around the clock. ESPN is now reporting that the University will pay any shovelers, which is a very smart move on the school’s part.

The FLSA requires people who perform any work to be paid for all time spent working. Requiring anyone to perform work without pay violates this law. There is no such thing as a volunteer employee. All work hours must be paid hours, at least at the minimum wage (with the limited exception of bona fide interns).

It looks like the University received some sage legal advice before letting any “volunteers” lift any shovels. It is also an excellent example of how spending a few minutes consulting with your attorney could save you a few years of time having your attorney litigate for you.

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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 recognizes reasonable expectation of privacy in commercially-stored emails

Earlier this year, in Quon v. Arch Wireless, the Supreme Court dodged the question of whether one has a reasonable expectation of privacy in electronic communications. Yesterday, in U.S. v. Warshak (6th Cir. 12/14/10) [pdf], the 6th Circuit answered the question, at least as it pertains to one’s commercially-provided email account.

Warshak involves the criminal convictions of the distributors of the male enhancement herbal supplement Enzyte. Some the evidence used to convict Steven Warshak came from the government’s warrantless seizure of his emails account. Although the 6th Circuit affirmed the use of the emails in Warshak’s trial, the court, for the first time, recognized that individuals enjoy an objectively reasonable expectation of privacy in their commercially-stored email accounts:

Since the advent of email, the telephone call and the letter have waned in importance, and an explosion of Internet-based communication has taken place. People are now able to send sensitive and intimate information, instantaneously to friends, family, and colleagues half a world away. Lovers exchange sweet nothings, and businessmen swap ambitious plans, all with the click of a mouse button. Commerce has also taken hold in email. Online purchases are often documented in email accounts, and email is frequently used to remind patients and clients of imminent appointments. In short, “account” is an apt word for the conglomeration of stored messages that comprises an email account, as it provides an account of its owner’s life….

Email is the technological scion of tangible mail, and it plays an indispensable part in the Information Age. Over the last decade, email has become “so pervasive that some persons may consider [it] to be [an] essential means or necessary instrument[ ] for self-expression, even self-identification.” … It follows that email requires strong protection under the Fourth Amendment….

Unlike Quon, Warshak is not an employment case. Nevertheless, it provides insight into court’s views of email and personal privacy. And, it gets the issue right. Employers should continue to take heed if they pry into employees’ personal (i.e., non-employer-provided) email accounts. Courts will likely continue to err on the side of protecting employees’ privacy rights in their own personal emails, and will likely take a long, hard look at businesses that invade that privacy.

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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? ABA/DOL’s Bridge to Justice (or, Bridge Over Troubled Referrals)

A couple of weeks ago, the American Bar Association and the Department of Labor’s Wage and Hour Division announced an unprecedented collaboration called “Bridge to Justice.” It is an ABA-approved attorney referral system to connect those who file wage and hour complaints with the DOL to attorneys who will handle cases the DOL is not interested in pursuing. Here’s the quick and dirty, courtesy of the DOL’s website:

Beginning on December 13, 2010, when FLSA or FMLA complainants are informed that the Wage and Hour Division is declining to pursue their complaints, they will also be given a toll-free number to contact the newly created ABA-Approved Attorney Referral System….

In addition, when the Wage and Hour Division has conducted an investigation, the complainant will now be provided information about the Wage and Hour Division’s determination regarding violations at issue and back wages owed. This information will be given to the complainants in the same letter informing them that the Wage and Hour Division will not be pursuing further action, and will be very useful for attorneys who may take the case. The Wage and Hour Division has also developed a special process for complainants and representing attorneys to quickly obtain certain relevant case information and documents when available.

Did I read that right? Will the DOL be providing the complaining party and the referred attorney “relevant case information and documents?” The DOL explains, in a short FAQ about its new attorney referral system:

Q: How does the ABA-Approved Attorney Referral Document Request process work?

A: A complainant who has received the toll-free number to the ABA-Approved Attorney Referral System after a Wage and Hour Division investigation will also receive a form to request the most relevant documents from her case file. These documents include the complainant’s own statement, the Wage and Hour Division’s back wage computations for the complainant, and copies of any documents the complainant provided to the Wage and Hour Investigator. The Wage and Hour Division will provide these documents expeditiously. The form also allows the worker or authorized attorney representative to request the case narrative from the file; however, it explains that requesting the narrative will delay the Wage and Hour Division’s response because it must be redacted. The letter sent to the complainant with notification of the Wage and Hour Division’s decision to not pursue the case will also include information about the violations found and back wages owed to the complainant.

In other words, the DOL will provide employees and the referred attorneys a roadmap to filing a lawsuit: the complainant’s statement, the nature of any violations found to have occurred, back wage computations, and the DOL’s own internal narrative.

It used to be that if the DOL declined to pursue a charge, there existed a better than average chance the claim would die. Now, lawyers will be lining up to receive a referral, along with a connect-the-dots claim. If this referral program doesn’t scare employers into conducting a proactive and comprehensive wage and hour audit to prevent these referral from taking place, nothing will.

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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.

Prepare for the long hard winter and update your severe weather policy

Today is Cleveland's second big snowstorm in less than a week. I, along with myriad other workers around the greater Cleveland area, are going to have a devil of a time getting into work today. How does your business handle inclement weather? Last winter, I outlined some ideas for businesses to consider during weather events. Have a look and see how my tips compare to your own policies. And, please, drive safely.

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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 #156 (the Guantánamo edition)

The story of the week is courtesy of the legal humor blog (and fellow ABA Blawg 100 honoree—don’t forget to vote) Lowering the Bar, which reports on the Utah Supreme Court’s reinstatement of an employee’s tort claims against his employer. The allegations are that the employer used waterboarding and other forms of physical punishment as motivational techniques:

Basically, Hudgens alleges that Prosper encouraged the use of, let’s say, “enhanced employee motivational techniques,” specifically, waterboarding. Hudgens alleged that at the time of the incident, his supervisor was already known for what the court called “questionable management practices”:

“Specifically, when an employee did not meet performance goals, [the supervisor] would draw a mustache on the employee using permanent marker or he would remove the employee’s chair. Additionally, he would patrol the employees’ work area with a wooden paddle, which he would use to strike desks and tabletops.”

Where do I sign up to work for that supervisor?

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

Discrimination

• The new (and very activist) Obama EEOC – from Walter Olson’s Overlawyered

• Family Responsibilities Discrimination (FRD): The Next Big Field in Employment Law? – from Daniel Schwartz’s Connecticut Employment Law Blog

• Religion at Work – from Suzanne Lucas, the Evil HR Lady

• Hospital Sued Over English-Only Rule – from Joe’s HR and Benefits Blog

• Dollar Value of Employment Cases – from Tom Crane’s San Antonio Employment Law Blog

• Steak and sex: Fleming’s settles male-on-male harassment claim – from Sindy Warren at the Warren & Hays Employment Law Blog

• Male sexual harassment is on the rise. Does your policy include both sexes? – from Employment Law Bits

• GINA and Family Medical History: A Summary of Practical Concerns for Employers – from New York Labor and Employment Law Report

• Credit Check Lawsuit Signals Potential New Wave of Class Actions – from Workplace Privacy Counsel

Social Networking & Technology

• Discovery Granted: Give Opposing Counsel Your Facebook Password – from Philip Miles’s Lawffice Space

• The Trouble With LinkedIn Recommendations: Confidentiality – from Molly DiBianca’s Delaware Employment Law Blog

• Why WikiLeaks Matters More (And Less) than You Think – from HBR.org

• Tailoring A Social Media Policy: The NFL Example – from Rob Radcliff’s Smooth Transitions

• Employee Handbooks Not Relevant to Whether Computer Use Was Unauthorized Under CFAA (Accenture v. Sidhu) – from Legal Developments In Non-Competition Agreements

• Best Buy’s Boss on the Lessons of Social Media – from BusinessWeek

• The Top Ten Things You May Not Know About Social Media – from CAI News

• Discharge is Upheld for Facebook Postings by Employees in France – from TLNT

• Copy Machine May Be Storing Your Confidential Records – from HR Daily Advisor

• Ohio sets social-networking rules for judges – from James Nash at the Columbus Dispatch

• An Early New Year’s Resolution – Create A Social Media Policy – from Michigan Employment Law Connection

Employee Relations

• Can you fairly lay-off teachers? – from Rob Schwartz’s Fairness Matters

• EmployeeScreenIQ’s Top Background Screening Trends for 2011 – from employeescreenIQ Blog

• Holiday Party Horror – from Michael Haberman’s HR Observations

• Tips for terminating employees – from Michael Maslanka’s Work Matters

• Shh! Companies Spying On Sick Workers – from Workplace Diva

• Sick Leave and the FMLA: Should You Call Off Your Call-in Policy? – from Case In Point

• Boss had lots of documentation, but was he just papering the file? – from Stephen Meyer’s HR Cafe

• The Top 100 Movie Quotes for HR Pros: #90 is Dirty Harry: “Personnel? That's for A@@*LE$!!!” – from Kris Dunn, The HR Capitalist

Trade Secrets and Competition

• Noncompete cases not slowed by economy, legislation – from Jay Shepherd’s Gruntled Employees

• Trade Secret Statistics – from Fair Competition Law

• Roy’s Analysis of Quirky Question # 164; Who Owns Employees’ Ideas? – from Quirky Questions

• Top Ten Non-Compete and Trade Secret Concerns for Inhouse Lawyers and the Companies They Represent – from Trade Secrets & Non-Compete Blog

• Walmart Obtains Delaware Injunction Barring Former Exec From Working For CVS – from Delaware Non-Compete Law Blog

Labor Relations

• Video: Walt Disney World Union Workers Release ‘MouseTrapped 2010’ for Public Viewing – from StitchKingdom

• NLRB Upholds Dana Corp. Voluntary Recognition Agreement – from Workplace Prof Blog

• NLRB Dismisses “The Other” Dana Corp. Complaint; Finds Pre-Recognition Agreement Lawful – from Labor Relations Today

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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 places burden on a disabled employee to propose a reasonable accommodation

Despite the breadth of the 2009 amendments to Americans with Disabilities Act, not all disabled employees receive the benefit of the Act’s protection. Instead, the Act only protects those employees who are “qualified,” that is, able to perform all of the essential functions of the job with or without reasonable accommodation. If necessary to determine the appropriate reasonable accommodation, the ADA’s regulations require an employer to “initiate an informal, interactive process with the qualified individual with a disability in need of the accommodation. This process should identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations.”

Whose burden is it, however, to propose a reasonable accommodation to account for an employee’s disability? According to Jakubowski v. The Christ Hosp., Inc. (12/8/10) [pdf], the burden falls squarely on the employee.

Dr. Martin Jakubowski suffers from Asperger’s syndrome, a severe and sustained impairment in social, occupational, or other important areas of functioning, with a marked impairment in the ability to regulate social interaction and communication. Following his diagnosis, the hospital terminated his employment. Before the termination, the hospital met with Dr. Jakubowski to discuss various accommodations for his poor communications skills, all of which he rejected. Because he did not propose another accommodation, the hospital met its burden to engage in the interactive process, and he could not proceed on his discrimination claim:

Jakubowski contends that Christ Hospital did not act in good faith because it did not offer him a remediation program similar to the one offered to the previous, unnamed resident who exhibited similar deficiencies. Importantly, Jakubowski did not request a remediation program at the accommodation meeting with Christ Hospital….

Christ Hospital … met with Jakubowski to discuss his proposed accommodations, and told him that the hospital lacked sufficient resources to comply. [It] also offered to help him find a pathology residency because it would involve less patient contact…. Because Christ Hospital met with Jakubowski, considered his proposed accommodations, informed him why they were unreasonable, offered assistance in finding a new pathology residency, and never hindered the process along the way, we agree that there is no dispute that Christ Hospital participated in the interactive accommodation process in good faith.

The ADA does not require an employer to offer a disabled employee the most reasonable accommodation, or the employee’s preferred accommodation. Instead, it only requires the employer to offer a reasonable accommodation, one which enables the employee to perform all of the essential functions of the job. If an employer meets this burden, the employee cannot complain that the employer rejected a proposed accommodation that did not address all essential functions, or failed to implement an accommodation that the employee did not propose.

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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.

Does Justice Alito read my blog? Dissecting the oral argument in Thompson v. North Am. Stainless

Thompson v. North Am. Stainless is near and dear to my heart. This post marks the 8th I’ve written covering this important 6th Circuit retaliation case. Yesterday, the Supreme Court heard oral argument on the issue of whether Title VII prohibits an employer from retaliating by inflicting reprisals on a third party (such as a spouse, family member, or fiancé) closely associated with the employee who engaged in such protected activity but who engaged in no protected activity of his or her own. The oral argument transcript is available for download [pdf] from the Supreme Court’s website.

When the 6th Circuit originally recognized a cause of action for associational retaliation (before the en banc reversal that led to the Supreme Court appeal), I worried, “How close is close enough?”

In Thompson, the relationship was a fiancée. It is safe to assume liability will also extend to action taken against spouses. What about boyfriends and girlfriends? How long do you have to date to be protected from retaliation? The same protection also will probably extend to parents and children. What about siblings? Grandparents? Cousins? 3rd cousins twice removed? In-laws? Friends? Carpoolers? The people you share your lunch table with? The person you sat next to in 3rd grade? How close is close enough for an employer to intend for its actions to punish the exercise of protected activity? Do employers now have to ask for family trees and class pictures as part of the orientation process?

While I’m not so vain as to think that Justice Alito reads my blog (just in case, hello, Your Honor), the theme of the slippery slope resonated heavily in his questioning of Mr. Thompson’s attorney:

That’s what's troubling to me about – about the theory. Where it’s a fiancée, it’s – that’s a relatively strong case, but I can imagine a whole spectrum of cases in which there is a lesser relationship between those two persons, and if – if –­ if – unless there’s a clear line there someplace, this theory is rather troubling. …

Can you help – can you help provide where the clear line is? Does it go – does it include simply a good friend? Does it include somebody who just has lunch in the cafeteria every day with the person who engaged in the protected conduct? Somebody who once dated the person who engaged in the protected conduct? Are these all questions that have to go to a jury?

Justice Alito continued to hammer this theme when questioning the attorney arguing for the Justice Department:

Put yourself in the – in the shoes of an employer, and you – you think – you want to take an adverse employment action against employee A. You think you have good grounds for doing that, but you want – before you do it, you want to know whether you’re potentially opening yourself up to a retaliation claim.

Now, what is the employer supposed to do then? They say, … now we need to see whether this person who we’re thinking of taking the adverse employment action against has a … “close relationship” with any of those people. So what do you do? Do you call everybody in from the company and you say, now, is – you know, was – are these people dating? Did they once date? Are they good friends? What are you supposed to do?

Despite this Court’s perception as pro-business, it has proven itself to be a favorable venue for retaliation claims. This Court's pro-employee, anti-retaliation bent should hold form in this case. Notwithstanding Justice Alito’s (and my) concerns, reading the tea leaves I predict Thompson will be a victory for the employee. I cannot see this Court permitting an employer to fire an employee whose fiancée claims discrimination. There should be at least five Justices who will craft a standard workable enough to avoid Justice Alito’s slippery slope.

I don’t expect any bright lines to be drawn. Since Burlington Northern, it is clear that actionable retaliation includes any adverse action that is “harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination.” I expect the Court to conclude that this test encompasses associational retaliation; we will be litigating the degree of closeness and its impact on the “reasonable employee” in future retaliation cases.

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

Do you know? Wrongful terminations for attorney consultations

Because Ohio employees working without a contract are at-will, an employer does not need a reason—good, bad, or otherwise—for termination. Yet, do you know that an at-will employee who consults with an attorney may find himself or herself protected from termination? Ohio, like most states, prohibits employers from terminating employees in circumstances that jeopardize a clear and well-defined public policy. Ohio courts conclude that an employee’s consultation with an attorney is worthy of such protection.

Chapman v. Adia Servs., Inc., is the most oft cited case in support of this rule:

[W]e hold that it is repugnant to the public policy of this state for employers to terminate employees for exercising their right to consult a lawyer. The courthouse door must be open to the people of Ohio, and it is not ajar when citizens may be fired for entering.

Other cases have extended this protection to employees who threaten to consult with an attorney and to employees who inquire about an employer’s policy regarding employees who sue the employer.

Employers should treat employees who consult with an attorney or threaten to consult with an attorney the same as they would any employee who engages in any other legally protected activity—with care, diligence, and fairness.

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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.

BREAKING NEWS: Supreme Court agrees to hear appeal in Dukes v. Wal-Mart

This morning, the Supreme Court agreed to hear the appeal of the class certification of the largest employment discrimination lawsuit ever filed in this country, Dukes v. Wal-Mart. Greg Stohr at Bloomberg News provides details. You can also read my previous thoughts on this historic appeal.

This appeal will not only impact the more than 1.5 million potential class members who seek billions of dollars in damages, but it also has the potential to shape the future of employment class action litigation for years to come. Keep watching this blog for future updates on the landmark Dukes case as it continues to wind its way through the Supreme Court.

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

Ohio democrats look to go down swinging

In boxing its called a puncher’s chance. As long as you’re on your feet, you always have a chance to knock out the other guy. You might get knocked around for 11 rounds, but as long as you can throw a solid punch in the 12th, you can always win the fight.

This is what the democrats in the Ohio House are trying to do. In last month’s election, the republican tide swept away their control of Ohio’s House. Next month, their half of Ohio’s legislature, along with the Governor’s mansion, will join Ohio’s Senate as republican-controlled. On their way out, the current House majority is going down swinging.

Tomorrow, the Ohio House will hear testimony, and possibly vote, on three long-standing pieces of legislation:

• HB 470 – which would create a new protected class for people who smoke tobacco. For my prior thoughts on this bill, see Bill seeks to snuff out discrimination against smokers.

• HB 488 – which would create a new protected class for women who are lactating, in addition to requiring that employers provide lactating employees reasonable, unpaid time each day to permit the expression of breast milk. I’ve also previously written about this legislation. Because of the recent federal mandate for workplace lactation breaks, this legislation is irrelevant.

• HB 523 – which would create a uniform definition of “employee” in Ohio’s minimum wage, wage payment, and workers’ compensation laws. This statute would broadly define an “employee” as “an individual who performs services for compensation for an employer.” Critically, it presumes anyone who falls under this broad definition is an “employee” and would require the employer to prove otherwise. It also creates a stringent enforcement scheme, which includes a private cause of action, civil penalties, and criminal penalties for misclassifications. Of these three pieces of legislation up for consideration, this is the most significant and has the widest implications for Ohio businesses.

Unlike the weary, late-round boxer, the Ohio democrats have no chance of winning any of these battles. They could win the round by passing one or more these bills, but each would certainly die in the republican-controlled Senate.

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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 #155 (the two-drink-maximum edition)

I was not the only one this week commenting on the legal risks of office holiday parties:

• The Office Holiday Party - Alcohol-Induced Stupidity Can Lead to Serious Sexual Harassment Claims – from Daniel Schwartz’s Connecticut Employment Law Blog

• How To Avoid Holiday Party Pitfalls (and Liability) – from World of Work

• Your Career: Surviving the office holiday party – from msnbc.com

• Time to Get Your “Drink On” at the Office Holiday Party! – from Fistful of Talent

• Behave at Office Holiday Parties – from Lawyerist

If you’re planning on voting for me at the ABA’s Blawg 100, please do so before you indulge too much at your office party and forget to vote at all.

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

Discrimination

• The FMLA, the ADA and retaliation – from Michael Maslanka’s Work Matters

• 3d Circuit: Untimely Failure-to-Promote Claim Is Not Saved by Ledbetter Fair Pay Act – from Molly DiBianca’s Delaware Employment Law Blog

• Supreme Court May Clarify Use Of “Me Too” Evidence Of Employment Discrimination – from Hunton Employment & Labor Law Perspectives™

• A Room with a View – The Costly Consequences of Ignoring a Small Request for Accommodation – from Wyatt Employment Law Report

• Employers and the newly expanded ADA – from Overlawyered

• Record Gender Discrimination Class Action Settlement And Fee Award Given Final Approval – from Workplace Class Action Litigation

• I’m Harassed By Your Affairs With Others: A New Legal Threat Emerges (Gender Plus)... – from Kris Dunn, The HR Capitalist

• Lawsuit Alleges Hiring Discrimination Due to Credit Background Checks – from employeescreenIQ Blog

• 10 Tips For Avoiding GINA Violations – from Workplace Privacy Counsel

• Disparate Impact Suit - Credit Checks – from Michael Fox’s Jottings By An Employer’s Lawyer

• Documentation is Key to Surviving OFCCP Audit – from New York Labor and Employment Law Report

• BIG LIES: “The check's in the mail,” and “I can fire you for a good, bad, or no reason” – from Employment and Labor Insider

• Job Descriptions and the ADA: Are Those ‘Essential Functions’ Really Essential? – from Case In Point

• Combining Romance and Work, Can Lead to Demotion or Even Termination From Employment – from Minnesota Labor & Employment Law Blog

Wage & Hour

• Wal-Mart Stores v. Dukes: Will SCOTUS grant certiorari? – from LawMemo Employment Law Blog

• Workplace Flexibility and the Military – from Workplace Prof Blog

• Verizon FMLA settlement may exceed $6 million – from The FMLA Blog

• Steeped-Up Independent Contractor Enforcement Initiatives Coming Down The Pike Full Steam – from Wage & Hour - Development & Highlights

• ESPN Zone Closure Prompts Lawsuit by Laid Off Workers – from Maryland Employment Law Developments

• You Be The Judge: Did the boss or the worker close FMLA door? – from HR Cafe

• Leon Rodriguez to Be Nominated for the Top Job at the Wage and Hour Division – from Wage & Hour Counsel

DOL/ABA Partnership

• The DOL’s Holiday Gift for the Plaintiff’s Bar – from FMLA Insights

• DOL/ABA Lawyer-Referral Program Threatens More FLSA Litigation – from Wage and Hour Laws Blog

• USDOL + ABA = Trouble? – from HR Observations

• DOL-Private Bar Collaboration for Workers with Employment Complaints – from EFCA & Labor Law Reform Blog

• The DOL’s Lawyer Referral Arrangement with ABA Not Likely to Help Employers or Employees – from Iowa Employment Law Blog

• White House Task Force Announces DOL-ABA Partnership to Facilitate Wage and Hour Challenges – from Washington D.C. Employment Law Update

Social Networking & Technology

• When the iPad Is the Only Computer Your Employees Need—or Want – from BusinessWeek

• When It Comes To Smartphones, Employers Better Watch Out – from Workplace Diva

• Blackberries, iPhones and Androids: Do SmartPhones Belong in Meetings? – from Suzanne Lucas, “The Evil HR Lady,” writing at bNet

• “Cyber Monday”: Myth Or Must-Day For Online Shopping? – from NPR

• Managing the Workplace in the Age of Social Media – from CPEhr

• How Grinchy Should Employers Be About Online Shopping? – from Manpower Employment Blawg

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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 few thoughts on background checks

The New York Times’s You’re the Boss blog ran a piece yesterday discussing background checks of prospective employees. It focuses on a case study of one company that recently decided to run a background check on every new employee after accepting a conditional job offer. I thought I’d share a few thoughts I took away from the article.

1. It is not practical or cost-effective to run a background check on every applicant you are considering hiring. Because of information that could be revealed and the risk of a taint of discrimination, it is also not advisable to use a background check as part of the selection process. The best practice is to use background checks like medical exams and drug screens—as a final vetting after a conditional job offer is made. In a perfect world, no employee should be allowed to start working until after the background screen clears, although the needs of a particular business to have an employee start immediately may win out.

2. The need to screen employees will vary from company to company based on the nature of the business. Not every company will have to screen every employee. If you are not going to screen every employee, though, you should at least screen all employees in the same job. Consistency will eliminate any perception that you are selectively screening candidates based on a protected class.

3. Businesses should be very careful with the use of publically available information on the Internet (e.g., Google and Facebook) to conduct informal background searches. For one thing, the information is difficult to verify and may not be truthful. Also, an Internet search could reveal protected information—such as an employee’s membership in a cancer survivors’ group—that you, as an employer, do not and should not want to know. Internet searches of job candidates, however, do have value, but should only be used as one part of a background screening protocol, and with measures in place to limit the discovery of protected information.

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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.

Have we reached the end of civility?

A recent column in the New York Times had an interesting take about the decreased level of civility in our society and its effect on the workplace. The author’s thesis is that technology has caused a decline in civility over the last 10 years, which has impacted the workplace:

[A]s we’re all aware, the 21st century has brought with it new variations on rudeness. Answering texts during a luncheon. Tapping on BlackBerrys instead of listening to a speaker—or a child’s recital. Shooting off hostile e-mail anonymously. But is this decline in manners real? And when considering this, should we separate the outward symbols of politeness from general civility? It’s a complicated but important issue that has a surprising economic impact. Christine Pearson, a professor of management at Thunderbird School of Global Management in Arizona, said her research over the last decade had shown that many workers left jobs because of continuing incivility but rarely reported that as the reason.

Professor Pearson researched 9,000 managers and workers for her book, The Cost of Bad Behavior: How Incivility Is Damaging Your Business and What to Do About It. She concluded that incivility is rampant on the job. She cited examples such as rudeness, ignoring requests for help, ignoring a colleague passing in the hall, gossiping behind colleagues’ backs, and borrowing supplies without asking.

I’ve written about courtesy and civility before, and will leave you with two additional thoughts:

1. Whether this is a real workplace problem or not, it cannot hurt to try to be a little nicer to each other. Behavior models start at the top. If an organization is run by intimidation and scare tactics, then it should come as no surprise when managers and supervisors think they need to motivate their teams by yelling, harassing, sniping, and snubbing. It should also come as no surprise when employees respond with the incivility of litigation.

2. Social media has downgraded the level of discourse in our society. If recent statistics cited by Mashable are to be believed, 1 out of every 4 U.S. Internet pageviews occurs on Facebook. It is not a stretch to concluded that this increased connectedness and familiarity with each other has led to more informality and less civility. The ability communicate in 140 character bursts does not require truncated discourse. (You can find me on twitter @jonhyman).

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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? EEOC reports record charge filings for 2010

The EEOC recently published its fiscal year 2010 FY 2010 Performance and Accountability Report. Given the state of the economy, its findings are not all that surprising. The EEOC reported a record number of discrimination charge filings, 99,922, its highest total in the agency’s 45-year history. What is surprising, however, is what the EEOC is doing with all these charges—it’s closing files.

Despite the record number of filings, the EEOC resolved 104,999 charges, leaving it with an inventory of 86,338 at the end of its fiscal year. While that number seems high, it’s less than a 1% increase from the end of FY 2009. By way of contrast, the EEOC’s pending inventory increased nearly 16% from FY 2008 to FY 2009. In other words, the EEOC is resolving cases—whether by mediation and settlement, litigation, or dismissals and right to sue letters.

Here’s what the EEOC has to say about the cause of this record number of filings:

This surge in charge receipts is due in part to the expanded statutory authorities that EEOC has been given with the ADA Amendments Act (ADAAA) of 2008; the Genetic Information Nondiscrimination Act (GINA) of 2008; and the Lilly Ledbetter Fair Pay Act of 2009 (the Ledbetter Act). We also attribute the rise in charge receipts to EEOC becoming more accessible, making charge filing easier and providing better, more responsive customer service. Our internal Intake Information Group expanded the agency’s availability by phone and e-mail. Additionally, in the last four years, the EEOC has concentrated on revamping its charge intake services, expanding walk-in hours, and issuing a plain language brochure to assist potential charging parties in understanding their rights and the EEOC charge process. Individuals can now contact the agency by phone, by mail, by e-mail, by going to the EEOC website, or by visiting EEOC field offices.

These record filings have resulted in record recoveries. In FY 2010, the EEOC secured more than $319.3 million for more than 18,898 people through administrative enforcement activities—mediation, settlements, conciliations, and withdrawals with benefits. This figure represents the highest level of monetary relief ever obtained by the Commission, and a $25.2 million increase from FY 2009. Of this record recovery, $85 million came from the resolution of 285 lawsuits brought by the EEOC.

What does all this mean for employers? The EEOC is no longer an agency where charges go to die. Employers can expect more thorough investigations, quicker resolutions, and more aggressive enforcement. If you are charged with discrimination with the EEOC, you should take it seriously; the EEOC 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.

Announcing the ABA Blawg 100 – and a shameless request for your vote

Today, the ABA Journal announced that it has selected the Ohio Employer’s Law Blog as one of the top 100 legal blogs for 2010. I am truly humbled. The ABA’s blog directory has more than 3,000 registered blogs. To have been selected as one of the 100 “best and brightest law bloggers” by the American Bar Association leaves me speechless.

Here’s my Oscar moment. It really is an honor just to have been nominated. You can, however, navigate over to the ABA’s website and vote for me as the top Labor & Employment blog of 2010. You need to be registered at abajournal.com to vote. Congratulations to the other 99 honorees, and especially the other four selected in the “In Labor” category, all of whom are deserving.

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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.

7 tips for a safe workplace holiday party

I spent my collegiate summers earning money working in a warehouse in Philadelphia. It was an employment lawyer’s dream. One employee thought the best way to motivate his black co-workers was to hide buckets of fried chicken around the warehouse. Another, upset that he did not get a big enough raise, hanged our boss in effigy in front of a mural of a swastika that read, “Die Cheap Jew.” And, there was an infamous holiday party during which an intoxicated employee attempted to sexually assault the boss’s wife on the dance floor.

According to an Kay Spector, writing in the Cleveland Plain Dealer over the weekend, 21% of companies are planning not to have a holiday party this year, the lowest number in 30 years. I am not one of the employment lawyers who think that holiday parties pose too large of a risk to be held. In fact, I believe that year-end parties are an excellent source of workplace morale, provided that employers and employees use some common sense in planning and attending. Here’s 7 tips for employers and employees to consider as we enter the workplace holiday party season:

• Normal work rules and standards apply to holiday parties. As a subtle reminder, consider holding an anti-harassment refresher in anticipation of the party.
• Review your insurance policies for alcohol-related exclusions. 
• When scheduling your party, consider that employees are less likely to indulge on a work night than a Friday or Saturday. 
• Remind employees to drink responsibly and plan ahead for safe transportation. Help employees by limiting consumption via drink tickets, offering plenty of non-alcoholic options, and providing designated drivers, cab vouchers, or hotel rooms for those unfit to drive home.
• Have trained and experienced bartenders, and emphasize that they should not over-pour drinks, or serve guests who appear intoxicated or underage.
• Designate one or more managers or supervisors to refrain from drinking and monitor the party for over-consumption.
• Close the bar an hour or more before the party ends.

Cheers!

WIRTW #154 (the thankful edition)

In her preschool class last week, my daughter had to share what she was thankful for. Her classmates gave the standard responses—parents, grandparents, siblings, maybe a pet or two. Her answer—Peter Pan. Good to know where my wife and I stand in her corner of the universe.

Here’s what I’m thankful for (at least as my blog is concerned):

• I’m thankful for the nearly 600 subscribers who think enough of what I have to say on a daily basis to have my thoughts delivered to their feedreaders or inboxes.

• I’m thankful for the more than 8,000 different visitors each month who find me via a Google search, a link, Twitter, or some other way, who stop by to read my thoughts and musings.

• I’m thankful for all of my blogging and tweeting colleagues—many of whom I now consider friends—with whom I have shared ideas and links, and engaged in interesting debates.

• I’m thankful for all of the reporters who have used me a source (and spelled my name correctly).

• I’m thankful for my partners, who, when they were the partners, provided me the freedom to start what at the time was a novel project.

• Finally, I’m thankful for my wife, who often puts up with my late-night typing because I have a thought I want to finish for the next morning.

Have a great Thanksgiving and long holiday weekend. I’ll see everyone back on Monday, when we start the stretch run to my annual list of the year’s top 10 labor and employment law stories.

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

Discrimination

• “Legal” Drugs and the ADA, Part III – from Workplace Prof Blog

• EEOC Granted Wide Latitude in Age Subpoena Enforcement – from Workplace Class Action Litigation

• How to Survive the ADAAA: Seven Best Practices for Employers – from Employment and Labor Insider

• Followup and Resources from Where We Live’s Discussion on Gender Wage Gap – from Daniel Schwartz’s Connecticut Employment Law Blog

• “Good parenting” in an age of work-family imbalance – from Work and Family Blog

• Paycheck Fairness Act: Good Riddance – from the Evil HR Lady (writing at BNET)

• Answer to Question of the Week: Body Art – from Mark Toth’s Manpower Employment Blawg

• If you provide public accommodations, beware discriminating against people with disabilities – from Employment Law Bits

• In Defense of the EEOC? No, Just a Reminder About Pancakes – from Michael Fox’s Jottings By An Employer’s Lawyer

Wage & Hour

• What Are YOU Doing About Wage and Hour Compliance? – from Stephanie Thomas at Compensation Cafe

• Baltimore Workers File Class-Action Suit Over ESPN Zone Closure – from Workplace Fairness

• Labor Department Partners With ABA in Lawyer Referral Program – from ABA Journal Daily News

• Care In Drafting Pay Documents Is Essential – from Wage and Hour Laws Blog

Social Networking & Technology

• Nearly Half of CIOs Plan to Restrict Cyber Holiday Shopping from Joe’s HR and Benefits Blog

• CIOs See Smartphones as Data Breach Time Bombs from Ride The Lightning

• Mining Facebook Pages of Police-Officers-To-Be – from Molly DiBianca at the Delaware Employment Law Blog

• Facebook Accounts for 25% of All U.S. Pageviews – from Mashable

• Computer Fraud & Abuse Act: Court Rejects Argument That Employer’s Corporate Policies Can Make Employee Access “Unauthorized” Under the CFAA – from Trade Secrets & Non-Compete Blog

Non-Competition Agreements

• Honoring a competitor’s non-compete? – from Rob Radcliff’s Smooth Transitions

• “Head-Start” Rule Applies to Damages, As Well As Injunctions – from Kenneth Vanko’s Legal Developments In Non-Competition Agreements

Miscellaneous

• NLRB Seeks Briefs in Case Alleging Discriminatory Denial of Union Access to Employer Property – from Seth Borden’s Labor Relations Today

• Are You Working Over the Thanksgiving Holiday? – from Harvard Business Review

• The Importance of Small Businesses – from Michael Haberman’s HR Observations

• How to make an open-door policy a reality – from Work Matters

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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 voluntariness of release agreements

The facts that led to the severance agreement in Gascho v. Scheurer Hosp. (6th Cir. 11/19/10) [pdf] are what make employment law an interesting way to make a living. The legal issues surrounding the enforceability of a severance agreement, however, are what make this post worth reading.

Mary Ann Gascho, the plaintiff, was a 35-year employee of Scheurer Hospital. For the last 18 years of her employment, she was also married to the hospital’s President and CEO, Dwight Gascho. Dwight, it turns out, was having an affair with one of the hospital’s Vice Presidents. Around the time Mary Ann began to suspect her husband’s infidelities, he began physically abusing her. After Dwight admitted the affair and demanded a divorce, Mary Ann confronted the VP, calling her, among other things, “the whore next door.” That confrontation led to Dwight firing his wife. Cooler heads prevailed, however, when the hospital’s HR Director, Greg Foy, converted the termination into a three-day suspension. That suspension dovetailed into an FMLA leave.

Following the leave, the hospital offered Mary Ann a separation package. Foy presented her the agreement, explained and summarizing its key provisions, recommended that she hire a labor-law attorney to review the document, and told her that she would have 21 days to sign the agreement and seven days to change her mind if she did sign it. There was no physical harm or threats of physical harm between the day she was fired and the day she signed the agreement. Her husband, though, did use various methods of persuasion to try to convince her to sign, including lashing out and yelling at her. After consulting with her children, Mary Ann ultimately signed the agreement.

When she sued the hospital a year later for discrimination, the district court dismissed her claims as barred by the separation agreement. The 6th Circuit agreed, examining the following five factors to determine whether the release was “knowing and voluntary”:

1. Plaintiff’s experience, background, and education.
2. The amount of time the plaintiff had to consider whether to sign the waiver, including whether the employee had an opportunity to consult with a lawyer.
3. Clarity.
4. Consideration.
5. The totality of the circumstances.

1. Mary Ann’s experience, background and education. The court concluded that a nurse—with more than three decades of experience and who rose to a management position—could comprehend the meaning and effect of a settlement agreement.

2. Time to consider the waiver and opportunity to consult an attorney. The hospital gave Mary Ann 21 days to review the agreement and seven days to change her mind after signing it. While Title VII does not have a statutory requirement for waivers, the 21 days mirrors the OWBPA’s requirements for waivers of federal age discrimination claims. “This congressional policy in a related civil rights statute bolsters the conclusion that a 21-day consideration period and a seven-day reconsideration period suffices to establish a legitimate waiver.” That timeline gave Mary Ann ample opportunity to consider the agreement and consult with an attorney.

3. The clarity of the waiver. The waiver “releases and forever discharges [Scheurer] Hospital … from any and all claims of any nature … based on any fact, circumstance or event occurring or existing at or before [Mary Ann’s] execution of this Agreement. [It] includes all claims whatsoever … including … claims under …Title VII of the Civil Rights Act of 1964.” According to the Court, “One does not need a law degree to grasp the import of these terms.”

4. Consideration for the waiver. In exchange for the waiver, the hospital offered Mary Ann a year’s salary plus other benefits, which was more than sufficient consideration.

5. Other relevant circumstances. Mary Ann claimed that she was under duress to sign the agreement. The court disagreed:

All bargaining, whether to buy a house, to take a job or to settle a dispute, comes with implicit economic and psychological pressures—that if the one party does not take the offer, it may go to someone else…. The better the offer, indeed, the greater the implied fiscal threat, creating the possibility that a claim of duress grows stronger the more generous the offer. 

That Gascho worried about having to file a lawsuit (and winning it) if she opted not to accept the settlement offer is precisely the kind of pressure anyone (not independently wealthy) would face in this context…. “No legal system can accept an assertion that ‘this contract was signed under duress because my only alternative was a lawsuit.’ That would eliminate settlement—and to a substantial degree the institution of contract itself.” …

Over one month had passed since the last act of physical violence…. Gascho had plenty of time to consider the agreement, plenty of time to rescind the agreement after signature and plenty of time to consult a labor attorney, as one hospital executive (Greg Foy) recommended she do. She spoke with several people before she signed the agreement, including friends and trusted family members (e.g., her children), and none of them advised her not to sign it. It is difficult to square these circumstances with the notion that Gascho’s husband coerced her to sign the agreement.

Like Mary Ann Gascho, anyone is free to challenge the knowing and voluntary nature of a release. As this case shows, however, it is very hard for employees to win these challenges.Courts treat settlement agreements as sacrosanct. If you resolve a case with an employee and obtain a signed agreement with a release that meets these criteria, you can ordinarily rest comfortably that you are free from future lawsuits brought by that employee.