Employees aren’t the only ones who have to watch what they post: Social media as retaliation

If you do a search of my archives you’ll find a slew of posts about employees whose posts on social media sites came back to bite them—either in recruiting, terminations, or litigation. A story in yesterday’s Pittsburgh Tribune-Review illustrates that employers are also at risk for the reckless use of social media. The article discusses an EEOC complaint alleging that a manager used the company’s Facebook page to post threatening messages in retaliation for a prior harassment complaint.

It is becoming increasingly clear that communication is communication, whether spoken, in writing, in a email, in a text message, or posted on a social media website such as Facebook. Fairly consistently, courts are ignoring the vessel used to communicate the message. If a message is retaliatory, it will be treated the same, whether told to an employee or posted on a Facebook page.

Other than retaliation, what are some of the other legal risks should employers be aware of concerning social media?

• Harassment
• Defamation
• Disclosure of confidential or proprietary information
• Commentary on on-going litigation

How can employers guard against these risks? Proactive training. Businesses that fail to properly train all employees about the risks of the reckless use of social media are acting recklessly themselves.

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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 KJK’s Next Employment Law Breakfast Briefing: Managing Employee Medical Issues Under the ADA

You are invited join KJK’s employment lawyers for our next Breakfast Briefing: Managing Employee Medical Issues Under the Amended Americans With Disabilities Act.

Perhaps no issue confounds and confuses employers more than employee medical issues. The 2009 amendments to the Americans With Disabilities Act have only served to complicate matters for businesses. Now, the ADA covers most employees with medical issues. As a result, it is incumbent upon employers to stay up to date on their obligations to accommodate this unique class of employees. Join KJK’s employment lawyers for a free breakfast to discuss the following issues and learn how to proactively avoid ADA claims from increasingly litigious workforces:

1. What qualifies as a “disability” under the current ADA?
2. What are employers’ obligations to reasonably accommodate disabled employees?
3. How does the ADA interact with the other key laws that concern employee medical issues: the FMLA and workers’ compensation laws?
4. What does it mean to “regard” an employee as disabled, and why is this subset of the ADA so dangerous?

Date: Tuesday, April 12, 2011

Time: 8:00-8:30 Continental Breakfast / 8:30-9:30 Presentation / 9:30-10:00 Q&As

Place: The Club at Key Center, 127 Public Square, Cleveland

Cost: Free (including parking)

If you are interested in attending this free seminar, or for more information, please contact Andrea Hill, (216) 736-7234 or ach@kjk.com, by April 7, 2011.

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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.

Rash action could lead to false conclusions in dealing with employee problems

The mall was packed Saturday afternoon. The fact that we had a few inches of snow on the ground did not help the parking situation. I drove around for more than 10 minutes looking for a close parking space so the cold walk wouldn’t impact my two-year-old son’s asthma. I finally eyed a great spot, only to have it stolen by a woman who ignored my turn signal while she zoomed up the aisle the wrong way. I’d normally curse loudly from the safety of my car and move on, but on that day I took a stand. I parked behind her car, waited for her to get out, rolled down my window, and confronted her over her lack of parking lot etiquette. Surprisingly, she apologized, asked me to pull forward so she could back out, and surrendered the spot. We exchanged courtesies and went about our ways. When I came out from the mall, I found a note tucked under my wiper blade. It read, “ASSHOLE.” I can only assume that the note was left by someone in the line of traffic behind me who, not having witnessed the entire transaction, assumed that I had stolen their space.

There is a good lesson in this story for employers. Don’t act rashly when dealing with employee complaints or problems. Employers should only take action after a full investigation into all of the facts and circumstances. When an employee complains about something, you only are getting half of the story (at best). If you act based on that half, you are jumping to a conclusion, the correctness of which might as well be a coin flip. You cannot have any confidence in the ultimate conclusion until you conduct a complete and unbiased investigation, which includes interviewing all witnesses, reviewing all documents, and considering all versions of events.

There was an asshole in the parking lot on Saturday, but it wasn’t me. It was the person who left the note without knowing how I ended up taking that spot. Don’t make the same mistake and shortchange your employees by jumping to rash decisions and failing in your duty to fully and completely investigate all employee complaints.

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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.

Unstable employees, direct threats, and the ADA

I opened my email this morning to find the following question from fellow blogger The Evil HR Lady:

As you probably know, I’m an avid reader, even though I’ve never lived in Ohio, although I have been to two weddings there, so that must count for something.

I've been reading about Jared Lee Loughner--the Arizona shooter and came across the e-mails written by a class member who thought Loughner was dangerous here: http://voices.washingtonpost.com/44/2011/01/jared-loughners-behavior-recor.html?hpid=topnews

My question for you, the employment lawyer, is given ADA protections, if I notice an employee becoming increasingly unstable, what can I do about it?

I’d love to read your thoughts on this.

Instead of responding directly, I thought I’d share my thoughts with everyone.

The ADA contains a specific exception for employees who pose a “direct threat.” The statute defines “direct threat” as “a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation.” The ADA’s regulations require that the determination that an individual poses a direct threat must be “based on an individualized assessment of the individual’s present ability to safely perform the essential functions of the job.” Employers must base this assessment on either “a reasonable medical judgment that relies on the most current medical knowledge” or “on the best available objective evidence.” In making this determination, employers should rely on the following four factors:

1. The duration of the risk;
2. The nature and severity of the potential harm;
3. The likelihood that the potential harm will occur; and
4. The imminence of the potential harm.

Palmer v. Circuit Court of Cook County (7th Cir. 1997) succinctly explains the Hobson’s choice employers face when deciding whether to retain a potentially violent employee. Since I can’t say it any better, I’ll just quote from the opinion:

The [ADA] does not require an employer to retain a potentially violent employee. Such a requirement would place the employer on a razor’s edge—in jeopardy of violating the Act if it fired such an employee, yet in jeopardy of being deemed negligent if it retained him and he hurt someone. The Act protects only “qualified” employees, that is, employees qualified to do the job for which they were hired; and threatening other employees disqualifies one….

It is true that an employer has a statutory duty to make a “reasonable accommodation” to an employee’s disability, that is, an adjustment in working conditions to enable the employee to overcome his disability, if the employer can do this without “undue hardship.” … But we cannot believe that this duty runs in favor of employees who commit or threaten to commit violent acts…. The retention of such an employee would cause justifiable anxiety to coworkers and supervisors. It would be unreasonable to demand of the employer either that it force its employees to put up with this or that it station guards to prevent the mentally disturbed employee from getting out of hand.

To sum up and answer the question posed, employers faced with a legitimate and potentially dangerous employee need not wait for the powder keg to explode. Instead, employers can treat the employee as a “direct threat” and separate the individual from employment.

A few additional practical points to consider:

1. Prior to the termination, obtain written statements from co-workers, supervisors, and managers documenting all threatening behavior.

2. The severity of threat is proportional to the duration of the risk. In other words, the more real the risk the less amount of time you have to allow it in your workplace.

3. Typically, I’m opposed to security escorts of terminated employees. The termination of an employee who poses a direct threat for violence is the exception.

4. Consider carrying out the termination as late in the work day, and work week, as possible. This timing will create and artificial cooling-off period and help limit the risk that the employee returns to do harm.

5. Put the local police department on notice. Also consider a private security detail for a period of time until you are reasonably certain the employee is not going to return to cause harm.

Finally, my thought and prayers are with everyone in Tucson as they mourn, fight for their lives, cope with what happened, and start the healing process.

WIRTW #159 (the welcome to the party edition)

While it gets harder each week to keep up with the goings-on in the blogosphere, I’m always happy to welcome another to the table. This week, Philadelphia attorney Eric Meyer launched The Employer Handbook, which he promises will provide “clear and concise summaries of the employment-law landscape in PA, NJ and DE.” Eric, welcome, I look forward to reading and sharing links on future Fridays.

Here’s the rest of what I read this week (and last week):

2011 Predictions & Thoughts

• Learning From History: Employment Litigation Trends in 2010 and Preparing for 2011 – from Stephanie Thomas’s The Proactive Employer

• This Year in Employment Law, 2011 Edition - The Year of ... – from Daniel Schwartz’s Connecticut Employment Law Blog

• 84% of employees plan to look for a new position in 2011 – from Philip Miles’s Lawffice Space

• A 2011 Human Resources Forecast – from Michael Haberman’s Omega HR Solutions

• HR resolutions for the New Year part one, part deux – from Sindy Warren at the Warren & Hays Employment Law Blog

• Top Five Non-Compete and Trade Secret Issues to Watch for in 2011 – from Trade Secrets & Non-Compete Blog

• What's Ahead in Discrimination Litigation for 2011? – from Iowa Employment Law Blog

• Policies, Practices and More: An FMLA “To Do” List for 2011 – from FMLA Insights

• 2011: Implementing the NO IDIOT RULE – from Fistful of Talent

HR & Employee Relations

• Cleveland Cavaliers Give Homeless Man a Second Chance – from employeescreenIQ Blog

• Employment Background Checks: What They’re Really Looking For – from the Evil HR Lady, Suzanne Lucas

• Is Creditworthiness a Protected Characteristic? Yes, says EEOC – from Molly DiBianca’s Delaware Employment Law Blog

• Applicant Filed for Bankruptcy: Can You Refuse to Hire? – from Mindy Chapman’s Case In Point

• 10 Things Your Boss Won’t Tell You – from Smartmoney

• What It Takes to Be a Great Employer – from Harvard Business Review

• Another reason managers and executives should avoid gossip – from Work Matters

• How Executive Candidates Can Deal With a Lie on Their Resume – from The HR Capitalist, Kris Dunn

Social Media & Technology

• Eleventh Circuit Holds That It is a Federal Crime For an Employee To Use His Employer’s Computer For “Non Business Reasons” After Receiving Clear Instruction From Employer Not to Do So – from How Appealing

• Perils of social media and the law : Don't check your common sense at the door – from Real Lawyers Have Blogs

• Facebook most searched term, visited site of 2010 in U.S. – from Boy Genius Report

• Too Much Information: When Social Media Spills Into The Workplace – from TLNT

• Discovery of Social Networking Sites – from Electronic Discovery Law

Discrimination

• Calling a Female Colleague “Sweet Baby” Sounds Like Sexual Harassment at ESPN – from Minnesota Labor & Employment Law Blog

• 7th Circuit Rules Medical Evidence Not Necessary in Disability Discrimination Claim – from Wisconsin Employment & Labor Law Blog

• 7th Circuit: Medical Testimony Not Needed to Establish Substantial Limitation in a Major Life Activity Under the ADA – from HR Lawyer’s Blog

Wage & Hour

• Recording Overtime Over Defendant-Employer’s Objections Not Protected Activity Under 29 U.S.C. § 215 – from Overtime Law Blog

• Fifth Circuit Holds Insurance Adjuster Is Exempt Administrative Employee – from Wage and Hour Law Update

• Fifth Circuit Holds that FLSA Action Is Improper Forum for Employer to Seek Set-Off Against Wage and Overtime Claims – from Texas Employment Law Update

• Nature Of DOL’s “Right To Know” Remains Largely Unknown from Wage and Hour Laws Blog

• Denial of Class Certification By Court Is Based On Need For Individual Assessment: The Key To The Defendant’s Success – from Wage & Hour - Development & Highlights

Trade Secrets & Employee Competition

• Difference In Degree of Competition Between Wedding Photographers Results In Denial of Injunction – from Legal Developments In Non-Competition Agreements

• Employers - Ask potential candidates if they signed a non-compete! – from Rob Radcliff’s Smooth Transitions

• TRO Entered Where Owner Of Trade Secrets Made “Substantial” Efforts To Maintain Confidentiality – from Trading Secrets

• DOJ Pursues Antitrust Claims Against Companies That Agree With Competitors Not to Recruit One Another's Employees – from Trade Secrets and Noncompete Blog

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

Federal court takes on the word “n***er” in a reverse race discrimination case

The n-word has been discussed a lot in the media this week, with the announced sanitization of Huckleberry Finn. (Are Roots and To Kill a Mockingbird next? But I digress.) In Burlington v. News Corp. (12/28/10), a Philadelphia federal judge has ordered that a jury must decide whether it is acceptable for a black employee, but not a white employee, to use that word in the workplace. The opinion also contains a lengthy narrative (excerpted below) discussing the larger implications of the differential use of the word between white America and black America.

This case involves the firing of a white television news anchor over his non-pejorative, context-appropriate, use of the n-word during a newsroom meeting. Thomas Burlington, who is white, claims race discrimination because the station did not discipline, let alone fire, three black employees who used the same word in similar meetings in similar contexts. The court agreed that Burlington’s different treatment justifies a jury trial on the issue:

Plaintiff’s use of the word elicited a severely negative reaction, brought the meeting to a close before he could explain himself, and was followed by his immediate suspension, while Jervay’s use of the word elicited only Defendants’ defense of his actions. Plaintiff is white. Jervay is African American. Management’s inability to explain why Jervay was allowed to use the word while Plaintiff was not permits the inference that their races influenced the decision, and that a similarly situated African American employee was treated more favorably than Plaintiff under similar circumstances.

The court also took on society’s conventional use of the controversial word:

Justice Holmes observed that “[a] word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used.” This is certainly so with this particular word. Merriam-Webster notes in the usage section of its definition of the word that “[i]ts use by and among blacks is not always intended or taken as offensive, but … it is otherwise a word expressive of racial hatred and bigotry.” … Professor Kennedy, an African American, made the observation that

many people, white and black alike, disapprove of a white person saying “nigger” under virtually any circumstance. “When we call each other ‘nigger’ it means no harm,” [rapper] Ice Cube remarks. “But if a white person uses it, it’s something different, it's a racist word.” Professor Michael Eric Dyson likewise asserts that whites must know and stay in their racial place when it comes to saying “nigger.” He writes that “most white folk attracted to black culture know better than to cross a line drawn in the sand of racial history. Nigger has never been cool when spit from white lips.” …

When viewed in its historical context, one can see how people in general, and African Americans in particular, might react differently when a white person uses the word than if an African American uses it.

Nevertheless, we are unable to conclude that this is a justifiable reason for permitting the Station to draw race-based distinctions between employees. It is no answer to say that we are interpreting Title VII in accord with prevailing social norms. Title VII was enacted to counter social norms that supported widespread discrimination against African Americans…. To conclude that the Station may act in accordance with the social norm that it is permissible for African Americans to use the word but not whites would require a determination that this is a “good” race-based social norm that justifies a departure from the text of Title VII.

The n-word is one of the English language’s most volatile words. Few others spark as much debate or as much rancor. We should all be able to agree that it has no place in the workplace. Yet, as this case illustrates, Title VII does not allow for double standards. If you intend to punish its use by white employees, you cannot condone its use by black employees.

I swore I wasn’t going to write about Brett Favre; then he got sued

Earlier this week, two former employees of the New York Jets sued their former employer and Brett Favre for sexual harassment. The message therapists allege that Favre made unwanted sexual advances during his tenure with the Jets in 2008. The lawsuit comes on the heels on the NFL’s fine against Favre for not cooperating with its investigation of similar allegations made by former Jets television host Jenn Sterger. Because others have covered the issues of the dangers of text messaging in harassment prevention and litigation (Philip Miles’s Lawffice Space, for one), I have a different take on this story.

The timing of the lawsuit—on the heals of the NFL’s closure of the Sterger investigation and its $50,000 fine of Favre—is more than suspicious. In their complaint, the plaintiffs try to explain the nearly 2½ year gap between the alleged harassment and the lawsuit:

   30. The plaintiffs have refrained from filing suit in the misguided hope that the NFL would take some meaningful action against defendant Favre for his improper behavior with Ms. Scavo, Ms. Sterger and others.

   31. Unfortunately, instead of taking any meaningful action, the NFL, after an alleged extensive investigation, which according to the media used former FBI agents and other extensive resources, provided no meaningful report, made no findings, waited until the regular football season was basically over and Favre was retiring from football and then reached the inexplicable and rather shocking conclusion that Favre did not violate any league policies regarding conduct in the workplace but rather merely failed to cooperate.

   32. The NFL imposed what is a relatively meaningless fine of $50,000 after probably spending a hundred times that amount on its alleged investigation and public relations attempt to derail any inquiry which would determine what occurred and to institute procedures to prevent the type of behavior Favre was accused of in the future.

   33. Since the NFL took no action, the plaintiffs had no choice but to commence their own legal action to be permitted to work in their chosen profession without being harassed, to recover the damages they had suffered and hopefully, maybe someday, to deter players in the NFL from acting inappropriately with other women who are required to come into contact with football players within the scope of their work and to encourage other women who are harassed by professional athletes in the workplace to come forward without fear of retribution.

I have no idea whether Favre propositioned the plaintiffs for a three-way encounter, just like I have no idea whether the pictures of Favre’s maleness that have surfaced online are genuine. The truth lies somewhere in between the allegations and the text messages. But, it certainly doesn’t help the plaintiffs’ cause that, according to Good Morning America, they refused to cooperate with an earlier NFL investigation concerning “media reports that Favre had made passes at two massage therapists who worked for the New York Jets.” It also doesn’t help their cause that their lawsuit looks like a money grab, piggy backing off the high publicity Jenn Sterger investigation.

I am not arguing that a gap of years between harassment and a lawsuit means that the harassment did not happen. I am, however, questioning the motives of the individuals bringing it to light via a lawsuit 2½ years later. Ultimately it will be up to a jury to determine the extent to which the timing undermines the plaintiffs’ credibility. It would be a shame if that timing ends up clouding the truth.

(Photo by Lisa Yarost, available on Flickr)

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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.

2011: A Rehiring Odyssey

According to CNN, 2011 is going to be the year that American businesses start hiring again:

After three years of economic pain, a growing number of economists think 2011 will finally bring what everyone's been hoping for: More jobs and a self-sustaining recovery.... [E]conomists forecast between 2.5 million and 3 million jobs being added to U.S. payrolls in 2011, about triple the gains likely to be recorded in 2010 and what would be the best one-year jump since the white hot labor market of 1999.

If your business is planning to contribute to these 3 million new jobs, here are some issues for you to think about as you locate and hire the best available candidates to rebuild your workforce:

• Are you going to hire anew from the outside, or rehire former employees?

• Where are you recruiting from and what is your applicant pool?

• When is the last time you read, and revised, your employment application?

• Should you conduct reference or background checks, and how will you do so non-discriminatorily?

• If you are going to check backgrounds, will you use online tools like Facebook and Google?

• Are you asking lawful and non-discriminatory interview questions?

• Will you conduct any applicant testing, such as personality tests, and if so, are they legally timed?

• Do you require medical exams or drug/alcohol tests, and if so, are they legally timed and administered?

• What are the terms and conditions of employment? Offer letters? Non-competition agreements? Confidentiality agreements?

• When is the last time you reviewed and retooled your employee handbook?

There is no magic wand that you can wave to hire the most qualified and productive workforce. How you answer these questions, however, will help ensure that the process you use in restocking your workforce exposes you to the least amount of legal 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.

My New Year's resolution is... Patience

According to the Williston Herald, the ancient Babylonians made the first New Year's resolution more than 4,000 years ago. They believed that one should spend the first day of the new year "reflecting on personal past errors and planning to resolve them to improve the self during the following year." After spending the last 11 days with my kids (who I love dearly), I decided that my resolution for the new year would be patience. In the spirit of my own path to self-improvement, I thought I'd share a few thoughts on how employers can be more patient, and, in the process, improve relations with their employees and limit the risk of lawsuits.

1. Patience with the chronic complainer. Every workplace has that employee -- the one who, at the drop of hat, lodges a complaint about something. It might be a co-worker, it might be a boss, it might be the quality of the free coffee, or it might be the thermostat setting. Employers should exercise caution with this employee. A drop of patience might avoid the retaliation lawsuit when the chronic complaint turns into protected activity.
2. Patience with the habitually absent. Most workplaces have rules about absences. I've counseled enough employers to know that most take those rules very seriously. An employee who is habitually absent, however, might not be irresponsible. He or she might be dealing with a medial issue that is causing the absenteeism or tardiness. A modicum of patience with this employee might avoid the creating of an FMLA or ADA quagmire.
3. Patience with wage and hour laws. Anyone who reads my blog regularly knows that I take wage and hour compliance very seriously. I am reasonably confident that I could walk into any business in America and uncover at least one wage and hour violation. The laws are simply too complex for any employer to execute them perfectly, at least without careful and constant guidance from an experienced practitioner. A little patience in the area of wage and hour compliance, however, will go a long to way to avoiding a costly DOL audit or class action lawsuit.
4. Patience. Two years ago, I wrote about what I call the Golden Rule of Employee Relations: "If you treat your employees as you would want to treated (or as you would want your wife, kids, parents, etc. to be treated), most employment cases would never be filed, and most that are filed would end in the employer's favor." I think if we try to be a little more patient in all situations, we would face less strife and fewer lawsuits.

Happy New Year everyone. What's your resolution?

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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.

Top 10 Labor & Employment Law Stories of 2010: Numbers 2 and 1

2. Social Networking. Mark Zuckerberg made the top of Time Magazine's annual list, but could only reach number two on mine. Last year’s top story fell a spot to number two this year. Nevertheless, 2010 was  huge year for social networking. In 2010, courts addressed the discovery of social media in employment disputes, the NLRB took up whether social media policies violate federal labor laws, and employers continued to harness social media as a screening tool for job applicants. Do you want to harbor a guess on whether this story will be near the top of 2011's list too?

 

1. Activist Federal Agencies. President Obama’s labor and employment legislative agenda may be a been a big dud, but that has not stopped the EEOC, the NLRB, and especially the DOL (and here, and here, and here, and here) from picking up the torch and running with it. And, as we've seen over the last couple of weeks, as big as story has been in 2011, it is poised to be even bigger in 2011. Employers, be afraid. 

 

There you have it—the top 10 labor and employment stories of the past year. Everyone have a safe and happy new year. I’ll be back on January 3 with fresh content.

 

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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.

Top 10 Labor & Employment Law Stories of 2010: Numbers 4 and 3

Our next two stories impact women during and immediately after pregnancy.

4. Lactation Breaks. One of the lesser heralded provisions of the Patient Protection and Affordable Care Act (better known as the Health Care Reform Bill) is section 4207, which provides reasonable break time for nursing mothers. All employers with 50 or more employees (and most with less than 50 employees) are required to provide nursing mom’s as many unpaid breaks as needed, in a private space other than a bathroom, to express breast milk.

3. Pregnancy Leave Rights. In June, the Ohio Supreme Court clarified that Ohio’s pregnancy discrimination statute does not require that employer provide pregnant women greater leave rights than other employees. Two months later, the 6th Circuit likely took away part of this gift by holding that pregnancy-related impairments that are not part of a “normal” pregnancy qualify as an ADA-protected disability.

(And thank you everyone for your votes in the ABA Blawg 100 -- today is the last day for voting)

 

 

 

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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.

Top 10 Labor & Employment Law Stories of 2010: Numbers 6 and 5

Numbers 6 and 5 on our list takes up employee privacy rights and employee disability rights.

6. The Intersection of Privacy and Technology. Quon v. Arch Wireless may not have resolved the issue of employee privacy rights in employer-owned equipment, but it at least framed the scope of the debate: “Cell phone and text message communications are so pervasive that some persons may consider them to be essential means or necessary instruments for self-expression, even self identification. That might strengthen the case for an expectation of privacy. On the other hand, the ubiquity of those devices has made them generally affordable, so one could counter that employees who need cell phones or similar devices for personal matters can purchase and pay for their own. And employer policies concerning communications will of course shape the reasonable expectations of their employees, especially to the extent that such policies are clearly communicated.”

5. Courts Begin to Apply the ADAAA, and No Employer is Safe. The ADA Amendments Act went into effect almost two years ago, on January 1, 2009. Because it is not retroactive, however, its effects are only just starting to be seen in the courts. 2010 was the year that courts began to apply the amended law’s expansive definition of “disability.” The result—virtually no medical condition is safe from being considered a disability protected by the ADA.

(Only today and tomorrow to get your votes in. Thank you to everyone who's voted in the ABA Blawg 100)

 

 

 

 

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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.

Top 10 Labor & Employment Law Stories of 2010: Numbers 8 and 7

The next two stories on the yearly run-down both involve goings-on at the EEOC.

8. The EEOC Declares Open Season on Background Checks. Do you conduct background checks on employees before hiring them? If so, you might be in the EEOC’s crosshairs, as the agency targets credit histories and criminal histories and screening tools. Congress got in the action as well, considering legislation to ban the use of credit information in employment.

7. The EEOC Issues Its GINA Regulations. Last month, the EEOC finally published its long-awaited regulations interpreting the employment provisions of the Genetic Information Nondiscrimination Act. Given the breadth of the regulations, I expect genetic information discrimination to be a growing trend in 2011.

(Only three days left to vote - ABA Blawg 100)

 

 

 

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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.

Top 10 Labor & Employment Law Stories of 2010: Numbers 10 and 9

We start this year’s review not only by looking back at the past year, but also by looking forward to two stories that will dominate the headlines next year.

10. The Year of the Class Action. In May, a federal jury awarded a class of 5,600 Novartis female sales reps and entry-level managers $250 million to remedy systemic discrimination against women of child-bearing age. That huge verdict notwithstanding, what made 2010 the year of the class action was the Supreme Court’s agreement to hear the appeal of the multi-billion dollar Dukes sex discrimination lawsuit against Wal-Mart.

9. The Supreme Court’s Employment Law Docket. In the last quarter of 2010, the Supreme Court heard oral argument in three employment cases: Kasten v. St. Gobain (which will decide whether a purely oral complaint triggers the FLSA’s anti-retaliation provision), Staub v. Proctor Hosp. (which will decide the viability of the Cat’s Paw in discrimination cases), and Thompson v. N. Am. Stainless (which will decided whether Title VII prohibits an employer from retaliating by inflicting reprisals on a third party closely associated with the employee who engaged in such protected activity but who engaged in no protected activity of his or her own).

(Don't forget to vote - ABA Blawg 100)

 

 

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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 #158 (the Merry Christmas edition)

As has become my year-end tradition, next week I will countdown the top 10 labor and employment stories of the year. I do this for two reason: 1) I think it’s important to look back at the last year to understand where we will go next year, and 2) I always take the week between Christmas and New Year’s off to spend with my family.

As my holiday gift to everyone, enjoy David Bowie and Bing Crosby’s Little Drummer Boy, faithfully (and hilariously) recreated by Will Ferrell & John C. Reilly. Merry Christmas everyone.

(If you’re a last minute shopper and are still searching for the perfect gift for me, there are still 7 days left to vote for the top labor & employment blog at the ABA’s Blawg 100).

As a special note this week, thank you to Molly DiBianca and her Delaware Employment Law Blog for including me on her list of the top 100 employment law blogs. I encourage everyone to jump over to Molly’s blog (a fellow Blawg 100 honoree) to find the most comprehensive list of labor and employment law blogs around.

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

Background Checks

• Newly Aggressive EEOC Sues Over Credit Checks – from John Zappe at ere.net

• EEOC Targets Another Employer for Credit Checks – from Nick Fishman at employeescreenIQ Blog

• EEOC sues over employer use of credit record in hiring – from Walter Olson’s Overlawyered

• Credit History Use Hurt African Americans, EEOC Lawsuit Alleges – from Joe’s HR and Benefits Blog

• EEOC Getting Tough On Employer Use of Credit Reports – from George’s Employment Blawg

• E.E.O.C. Sues Kaplan Over Hiring – from Steven Greenhouse at the New York Times

• Criminal Conduct Does Not Always Lead To Termination From Employment – from Minnesota Labor & Employment Law Blog

• Bankruptcy Discrimination in Hiring – from Philip Miles’s Lawffice Space

Discrimination

• Self-Righteousness and Diversity – from Rob Schwartz’s Fairness Matters

• Gender Pay Equity in 2011: The Devil Is In The Details – from Stephanie Thomas at Compensation Cafe

• Superpowers and the ADA – from Law and the Multiverse

• Too Hot v. Not: The Rest of the Story – from Iowa Employer Law Blog

• Women Still Pay a Big Price for Motherhood – from BNET

• New EEOC Rules Require U.S. Employers To Revise Procedures for Acquiring and Using Medical Information – from Employment Law Watch

• Disability Discrimination Case Asserted By Bank Teller With Epilepsy – from Atlanta Employment Lawyer Blog

• 11th Circuit Examines Religious Discrimination – from Alabama Employment Law Report

• I’ll have one more for the road – from The Word on Employment Law

Social Media & Technology

• What Can Google Books Data Search Tell Us About Employment Law Trends? – from Daniel Schwartz’s Connecticut Employment Law Blog

• How To Choose A Social Media Lawyer – from Shear on Social Media Law

• Smartphones in the enterprise: A changing landscape – from Computerworld

• Dealing with the unexpected as smartphones pervade the workplace – from Infoworld

• Cup Only Half Full for Victims of Data Security Breach – from BLEG Blog

• New York Jets’ Rex Ryan Needs to Take His Feet Out of His Mouth and Address Foot-Fetish Gate – from Shear on Social Media Law

• Online Dating, Tweets & Early Discovery – from Bow Tie Law’s Blog

Wage & Hour

• DOL’s Regulatory Agenda Shows Heavy Focus on Workplace Safety – from Washington D.C. Employment Law Update

• DOL’s Regulatory Agenda – from DOL’s Work in Progress

• Payroll Company Not an “Employer” for Wage Hour Purposes – from What’s New in Employment Law?

• OSHA Declares Texting While Driving A Workplace Hazard – from Hunton Employment & Labor Law Perspectives™

• Payroll Processor Not A Joint Employer – from The FLSA

• Trial Tactic Of Introducing Exemption Defense Disallowed: A Valuable Lesson For Employers – from Wage & Hour - Development & Highlights

HR & Employee Relations

• Bobby Petrino’s Deal Contains Only In-Term Non-Compete – from Legal Developments In Non-Competition Agreements

• Profanity as a Leadership Tool? – from Michael Haberman’s HR Observations

• Bed Bugs in the Workplace: How to Handle a Growing, Creepy HR Issue – from TLNT

Miscellanous

• NLRB Extends Right to Unionize to Group of Intermittent Employees – from Labor Relations Counsel

• The pro-business Supreme Court myth – from PointOfLaw Forum

• What to do if You’re Sued – from Matthew Gibson’s Wills and Wealth

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

DOL shares its preliminary interpretations on lactation breaks

Typically, December is a slow month for litigators. Courts stop calling juries. We all take vacations. Typically, the closer we get to Christmas the slower it gets, except, apparently, for the federal agencies in Washington. Yesterday, the NLRB published its proposed posting regulations, and the Department of Labor published its preliminary interpretation of the recent federal lactation break mandate.

Here are the DOL’s preliminary thoughts on employers’ obligations to lactating women:

• Paid or unpaid breaks? Employers are not required to compensate nursing mothers for breaks taken for the purpose of expressing milk. However, lactation breaks are covered by the same rules that govern other work day breaks. If the employer permits short breaks, usually 20 minutes or less, the time must be counted as hours worked and paid accordingly. Additional time used beyond the authorized paid break time could be uncompensated.

• What is a reasonable break time? Employers should consider both the frequency and number of breaks a nursing mother might need and the length of time she will need to express breast milk. The DOL believes that most women will need to take 2 to 3 breaks per 8 hour shift, each lasting between 15 and 20 minutes. These guidelines, however, are just that, and will vary from woman to woman depending on specific circumstances and needs.

• What is an appropriate lactation space? An employer has no obligation to maintain a permanent, dedicated space for nursing mothers. Any space temporarily created or converted into a space for expressing milk or made available when needed by a nursing mother is sufficient, provided that the space is shielded from view, free from intrusion from coworkers and the public, and suitable for lactation. The only room that is not appropriate is a bathroom. The DOL also believes that an employee’s right to express milk includes the ability to safely store the milk.

• What qualifies as an undue hardship for employers with less than 50 employees? The difficulty or expense must be “significant,” which is a stringent standard that employers will only be able to meet in limited circumstances.

• Is there a relationship between lactation breaks and the FMLA? No. The DOL does not believe that breaks to express breast milk can be considered FMLA leave or counted against an employee’s FMLA leave entitlement.  

The DOL is accepting public comment on these preliminary interpretations until February 22, 2011. Anyone may submit comments either electronically at www.regulations.gov, or by mail to Montaniel Navarro, U.S. Department of Labor, 200 Constitution Avenue, NW., Room S-3502, Washington, DC 20210.

This issue will remain hot in 2011 as we await the DOL’s final comments and as employers continue to figure out how to make these new obligations work in their specific workplaces.

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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.

When did we all stop accepting responsibility?

A woman in California has filed a class action lawsuit against McDonald’s. She claims that McDonald’s temps kids to eat unhealthily by promoting their fattening food with Happy Meal toys. I know you may this hard to believe, but, yes, parents, if you feed you kids too many Happy Meals, they may get fat. If a court agrees with this lawsuit, the parents who use McDonald’s as a crutch to feed their kids will be absolved of any responsibility for the resulting obesity. Yet, is it just the cheap cardboard box and tchotchke toys, or does the obesity result from parents that are either too busy or too lazy to feed their kids healthy foods? Or, do parents that permit their children to lounge around the house watching TV and playing video games beget overweight kids? Yes, too much fast food can make you fat. But, not only is it not the only reason kids become overweight, I’d venture to guess it is not the main reason either.

We have become a society that refuses to accept responsibilities for our faults. I see it all the time in employment cases. The insubordinate employee is convinced that her race/sex/age/disability was the reason behind her termination. The chronically late employee is convinced that he is being retaliated against despite his unreliability. The overly sensitive employee shrieks that one harmless email is a pattern and practice of lascivious harassment. One theme that resonates over and over in cases I defend is a refusal to accept responsibility. Yes, employers do discriminate, and retaliate, and harass. More often than not, however, businesses simply try to do right by their employees. Yet, if you believe all of the lawsuits that are filed, corporate America is one giant group of bigots and employees are never responsible for their own unemployment.

As we approach the new year, let’s all make it a resolution in 2011 to start taking responsibility for our own faults and shortcomings. It may decrease the number of lawsuits I am called on to defend, but it will make us a more credible society.

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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.

Merry Christmas employers—NLRB proposes posting of federal labor rights for ALL covered employees

Today is National Look on the Bright Side Day. I’m having a hard time, though, finding the silver lining in the latest news to come from the NLRB. The agency is proposing that all employers that are potentially covered by the National Labor Relations Act (which is virtually all private-sector employers except for agricultural, railroad, and airline employers) notify employees of their rights under that Act. According to the NLRB's press release: “[M]any employees protected by the NLRA are unaware of their rights under the statute. The intended effects of this action are to increase knowledge of the NLRA among employees, to better enable the exercise of rights under the statute, and to promote statutory compliance by employers and unions.”

The posting would be similar to that which the DOL has mandated for federal contractors. The proposed posting would state that employees have the right to act together to improve wages and working conditions, to form, join and assist a union, to bargain collectively with their employer, and to choose not to do any of these activities. It also would provide examples of unlawful employer and union conduct and instructs employees how to contact the NLRB with questions or complaints.

The NLRB is accepting public comments on this proposed rule for the next 60 days. Comments can be either submitted electronically to www.regulations.gov, or by mail or hand-delivery to Lester A. Heltzer, Executive Secretary, NLRB, 1099 14th Street NW, Washington DC 20570. I urge business

In the meantime, I will continue to try to look on the bright side.

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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? Employee alcohol testing

Under the ADA, an employer is prohibited from making disability-related inquiries and requiring medical examinations of employees unless if the inquiries are job-related and consistent with business necessity. In September, the EEOC filed suit against Pittsburgh-based U.S. Steel, claiming that it violated these rules by requiring random alcohol testing of probationary employees.

According to the EEOC’s Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees, the ADA differentiates between drug testing and alcohol testing. The ADA does not regulate the drug testing of employees because drug tests do not qualify as medical examinations. Blood, urine, and breath analyses to check for alcohol use, however, are considered medical examinations regulated by the ADA. Employers are permitted to maintain and enforce rules prohibiting employees from being under the influence of alcohol in the workplace. Employers are also permitted to conduct alcohol testing pursuant to such a rule if they have a reasonable belief that an employee may be under the influence of alcohol at work.

Random testing is just that, random. It is not tied to any reasonable belief about the employee’s on-the-job use of alcohol. I can make a very compelling argument that in any safety-sensitive position alcohol testing is job-related and consistent with business necessity. Nevertheless, and regardless of the circumstances, employers who intend to subject employees to alcohol testing should be mindful of these rules. Those that test without first consulting with employment counsel risk incurring the EEOC’s wrath.

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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.

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.