Are businesses really asking for age on employment applications?

I came across an article yesterday on The Huffington Post which says that many large retailers are requiring job applicants to disclose their ages as part of the application process. Are businesses really asking for age on employment applications?

While there’s nothing per se illegal about asking for age on a job application, why ask for certain information that’s illegal to consider? Simply, you should not ask for age, or for any information that suggests age: date of birth, year of high school or college graduation, or anticipated retirement age. The only age-related questions you should ask on job application is whether the applicant is age 18 or over and eligible to work. Anything more crosses the line, and will help a rejected candidate create an inference of discrimination. Why take that risk?

For more information on illegal questions during the hiring process, see Avoid hidden interviewing traps.

Do you want to know if your job application and other hiring processes are legal? Consider KJK’s proprietary (and free) HR and employment law audit.

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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.

Listen to your lawyer! (It might save you money)

Pure Energy sought an opinion from its labor and employment counsel whether its practice of paying its employees a day rate for all hours worked violated the Fair Labor Standards Act. Pure Energy, however, ignored the opinion of its attorney of the steps it needed to take for its date rate to pass muster under the FLSA. In Mumby v. Pure Energy Servs. (USA), Inc. (2/22/2011), the 10th Circuit concluded that the employer’s ignoring of its attorney’s advice constituted a willful violation of the FLSA:

Although consultation with an attorney may help prove that an employer lacked willfulness, such a consultation is, by itself, insufficient to require a finding in favor of the employer….

In fact, Pure Energy did not track its field employees' hours to ensure compliance with the FLSA or with the guidance provided… [A]ny overtime Pure Energy did pay was calculated using its erroneous “day rate” without regard for any weekly hours worked in excess of forty.

Pure Energy made no real changes to its compensation policy…. Indeed, without tracking the number of hours worked by each field employee, it was virtually impossible for Pure Energy to determine whether it was complying with [the] advice, let alone the requirements imposed under the FLSA.

Because the company sought, and then ignored, the advice of an attorney, the court concluded its violation was willful. The willful violation subjected the company to the FLSA’s three-year statute of limitations, as opposed to the non-willful two years, costing it an extra year of damages.

The moral of the story: If you hire an attorney, have the good sense to follow the advice you paid for.

[Hat tip: Overtime Law Blog]

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

There’s No Place Like Home

After 19 days, 2 procedures, 2 N/G tubes, 1 PICC line, 3 x-rays, 3 ultrasounds, dozens of needle sticks and blood draws, 1 blood transfusion, 16 IV feedings, more than 50 trips back and forth to the Cleveland Clinic, 38 sleepless nights between me and my wife, and too many doctors, nurses, and other medical professionals to keep track of, we brought our son home yesterday. He is home, happy, and, most importantly, healthy.

Thank you to everyone who took the time to share a thought—here, via Twitter, Facebook, or by email. You might not think it was a big deal, but every message I received meant a lot, and taught me a lesson on compassion and caring that I will never forget and plan on repaying at every opportunity. For starters, I’ll be donating blood to pay back the anonymous donor that made my son’s transfusion possible.

Finally, keep an eye on the blog, my Twitter feed, and my new Facebook page. Once I collect all of our medical bills, I’ll be running a contest to see who comes closest, without going over, to the total, unadjusted cost of a 19-day hospital stay at the Cleveland Clinic. A prize of a yet to be determined nature awaits.

Back to regularly scheduled employment law programming tomorrow, with a post on why you should listen to the advice of your employment attorney.

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

The “cat’s paw” lives: Supreme Court issues broad victory for employees in Staub v. Proctor Hospital

This morning, the Supreme Court issued its decision in Staub v. Proctor Hospital, which asked whether the “cat’s paw” is a valid theory of liability in discrimination cases. The “cat’s paw” seeks to hold an employer liable for the discriminatory animus of an employee who played no role in the decision, but nevertheless exerted some degree of influence over the ultimate decision maker.

Staub is a huge victory for employees. A unanimous opinion written by Justice Scalia whole-heartedly endorsed the “cat’s paw”:

We therefore hold that if a supervisor performs an act motivated by antimilitary animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable under USERRA.

The Court also declined to immunize employers who undertake their own independent investigation of the circumstances leading to the adverse employment action. Instead, the Court only excuses reliance on the biased report of a supervisor if the employer independently determines that the decision was entirely justified apart from the supervisor’s input:

Thus, if the employer’s investigation results in an adverse action for reasons unrelated to the supervisor’s original biased action (by the terms of USERRA it is the employer’s burden to establish that), then the employer will not be liable. But the supervisor’s biased report may remain a causal factor if the independent investigation takes it into account without determining that the adverse action was, apart from the supervisor’s recommendation, entirely justified.

While the Court limited its holding to USERRA, it pointed out that USERRA’s “motivating factor” causation standard is “very similar to Title VII.” It will be difficult for lower court’s to avoid this broad application of the cat’s paw in Title VII (and likely ADA) cases. The only hold-out will be ADEA cases, which, in light of Gross v. FBL Financial Services, Inc., requires “but for” causation.

I have two initial reactions to this opinion:

1. Staub is a broad, sweeping win for employees, which leaves employers with little protection against the discriminatory animus of those who play no role in the decision making process.
2. The Court’s holding hinges on ideals such as “intent” and “proximate cause,” which are almost always fact-based inquiries. Because it is very difficult for an employer to win summary judgment on these issues, the Court has turned nearly every “cat’s paw” case into a jury case—an expensive proposition for employers.

Staub v. Proctor Hospital [pdf] is available for download directly from the Supreme Court’s website via this link.

[Hat tip: Workplace Prof Blog]

Does your lawyer know Facebook?

Last week, Forbes.com’s privacy blogger, Kashmir Hill, asked her readers a very simple question, does your lawyer know how to use Facebook? Her conclusion, after scouring news stories about attorneys’ use of Facebook in jury selection: “If your lawyer isn’t Facebook and Google-search savvy, you’re at a disadvantage. So check those skills (along with doing your own online stalking) before hiring him or her.” It’s not only jury selection that clients should be concerned about, but also witness investigations, other informal background searches, and formal subpoenas and discovery requests.

Similarly last week, Gruntled Employees discussed the need for businesses looking for a social medial policy to hire lawyers who understand social media:

But more often than not, [employment lawyers] don’t know much about social media. Which is a problem. When I see an announcement for a lawyer seminar on social media, I check out the bios of the lawyers presenting to see what their social-media creds are. I look to see what their blogs are called, how many Twitter followers they have, and how active they are on LinkedIn…. And if they’re not active in social media, they're much less likely to understand what makes social media the human phenomenon that it’s become. Which means that they’re more likely to tell their corporate clients that they should fear social media, and that they need prohibitive policies….

In other words, just like you wouldn’t ask a dermatologist to perform heart surgery, you shouldn’t hire a non-tweeting lawyer to draft a social media policy.

While we’re on the subject of lawyers and social media, this is as good a time as any to mention that the Ohio Employer’s Law Blog has its very own Facebook Page. Please pop on over and give me a “like.” It will enable you to receive all of the blog’s posts on your Facebook wall, as well as other contents that supplements the blog (tweets, documents available for download, and other thoughts).

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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 #166 (the light at the end of the tunnel edition)

You might not know what the above is a picture of, but to me it’s a picture of me sleeping in my own bed every night, and having my family together for more than a couple of hours in a hospital room every day. It’s the canister into which son’s NG tube feeds, and, if you look really closely, you will see that the goo draining into it is clear. Clear goo means the bilious goo that had been pooling in his stomach has started to go somewhere else—down through his bowel— which means that we are (hopefully) rounding the final turn towards home. We’re not home yet (still maybe as much as another week or more), but we’re the closest we’ve been in the past 16 days.

I cannot put into words how much everyone’s emails and tweets of care and support have meant to me. The compassion of strangers often outweighs that of people we’ve known for years. And for that compassion I will forever owe everyone a debt of gratitude.

Here’s what I read this week:

Social Media & Workplace Technology

• Make Sure Your Lawyer Knows How To Use Facebook – from Kashmir Hill’s The Not-So Private Parts
• The March of Technology – from LaborRelated
• Want a Job? Give us Your Facebook Password – from employeescreenIQ Blog
• Maryland’s Division of Corrections Demands Applicants Provide Facebook Usernames and Passwords During Interviews – from Shear on Social Media Law
• Blogging ain’t dying among lawyers – from Kevin O’Keefe’s Real Lawyers Have Blogs
• Facebook for Jury Selection – from Rob Radcliff’s Smooth Transitions
• Should Business Owners Take a Cue From Attorneys? – from Wall Street Journal’s In Charge Blog

Labor Relations

• Is This the Teachers Unions Alamo or a Chance for Resurgence? – from Robert Schwartz writing at the Huffington Post
• Paul Secunda’s amazing coverage of the Wisconsin public employee labor battle – from Paul’s twitter feed
• NLRB Judge Orders Company to Reinstate Striking Workers, Resume Negotiations – from Joe’s HR and Benefits Blog
• The Battle Lines Are Being Drawn – from The Ohio Labor Lawyer
• Trade Unions and Social Media Policies: An Explosive Mixture – from Social Media Today
• NLRB Continues Aggressive Campaign – from Employer Law Report
• Continued Attacks on Employer Actions and No-Solicitation Policies – from Labor Relations Counsel
• Public Sector Bargaining Rights Battle Rages – from Vorys on Labor

Discrimination

• Should I Fight Or Settle: The Strategic Business Decision – from Daniel Schwartz’s Connecticut Employment Law Blog
• Was that a request for an ADA accommodation? Or just griping? – from by Stephen Meyer’s HR Cafe
• Plaintiffs’ Merits Brief Filed In Dukes – from Workplace Class Action Litigation
• Why isn’t Sex Discrimination Disappearing? – from Philip Miles’s Lawffice Space
• Evolving Technology and “Textual Harassment” – from New York City Employment Lawyer
• Gender Discrimination Or Choice? A Tale of Two Sisters – from Stephanie Thomas’s The Proactive Employer Blog
• Reverse Race Discrimination Claim Fails Because Employee Voluntarily Resigned – from Raising the (Missouri Employment Law) Bar
• Is HR Helping Employer Skirt Discrimination Laws? We Can Do Better – from TLNT
• Age Discrimination Case Rocks the BBC, Fueling International Debate about Discrimination in TV and Film – from Employment Lawyer Blog

HR & Employee Relations

• The Words Many Managers Are Afraid To Say – from the Harvard Business Review
• An Update on Why What Happens in the World is Important to HR – from Michael Haberman’s Omega HR Solutions
• Can an employee be fired for using medicinal marijuana? – from Eric Meyer’s The Employer Handbook Blog
• How Not to Discipline an Employee for Theft – from Workplace Prof Blog
• 6 Reasons You Shouldn't Quit Without Notice – from Evil HR Lady, Suzanne Lucas
• Superior Court Recognizes Another Exception to the Pennsylvania At-Will Employment Doctrine – from Pennsylvania Labor and Employment Blog
• Bringing Laughter Back Into Your Life – from Ohio Family Law Blog
• Doctor’s note for all sick calls? Here are 5 reasons I wouldn’t – from Employment and Labor Insider

Wage & Hour

• Is Your Unpaid Internship Illegal? – from Screw You Guys, I’m Going Home
• Should pharmaceutical sales representatives be paid overtime? It depends on where they’re located (for now) – from Overtime Advisor
• Picking off FLSA Plaintiffs – from Employment Class Action Blog
• Uh-oh: “Telecommuting: The Next Wave of Wage and Hour Litigation” – from Walter Olson’s Overlawyered
• Overtime Pay Violations Occur Each Time You Receive A Paycheck Without The Pay You Deserve – from Overtime Lawyer Blog
• The Use Of Independent Contractors and Immigration – from Rush on Business
• Fog Still Shrouds The Bridge To Justice – from Wage and Hour Laws Blog
• Mishandling FMLA Leave for Alcohol Treatment Causes Employer to Fall Off the Wagon – from FMLA Insights

Competition and Trade Secrets

• What Every CEO Should Ask the General Counsel About the Company’s Trade Secrets – from Trade Secrets & Non-Compete Blog
• What Happens If a Company Does Not Enforce Its Non-Compete Agreements? – from Legal Developments In Non-Competition Agreements
• Feast Your Eyes on Koncision’s New Severability Provision – from Kenneth Adams’s Koncision

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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.

Can a boss’s abusive conduct qualify as retaliation?

Title VII does not require that one suffer a job loss to claim retaliation. Instead, Title VII’s anti-retaliation provision protects against any conduct that would dissuade a reasonable worker from engaging in protected activity. Thus, for example, the mere threat of a termination—depending on the circumstances—could constitute an actionable adverse employment action for retaliation purposes.

In denying summary judgment to an employer, the court in EEOC v. Chrysler Group, Inc. (E.D. Wis. 2/17/11), considered not only whether the employer threatened termination, but also how the employer threatened termination:

[T]he manner in which Young delivered his message to each woman matters. If he was screaming and pounding his fists on the table while threatening termination, as Zahn and Hobbs testified, this scenario paints a much more hostile and intimidating atmosphere than if Young delivered his message in a normal tone of voice, as he contends he did.

What does this mean for employers? It could mean nothing. Or it could mean that if courts are examining the tone of threats, courts are beginning to become receptive to notions of bullying as actionable under existing laws.

Because Title VII is not a general civility code for the workplace, it only protects significant, as opposed to trivial, harms. If, however, courts are beginning to recognize threats without any follow-through as actionable, we are not that far of a leap from courts protecting general workplace bullying without any legislative prodding. This possibility should cause employers to be very worried.

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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.

Repeated calls from supervisor to employee on medical leave violates FMLA

What is the line between checking on a sick employee and harassing a sick employee to return to work early? Terwilliger v. Howard Mem. Hosp. (W.D. Ark. 1/27/2011) draws that line in a case that concluded that the employee was entitled to present her FMLA interference claim to a jury.

Regina Terwilliger worked as a housekeeper for Howard Memorial Hospital. On November 14, 2008, Terwilliger completed and submitted an FMLA request for leave for necessary back surgery. After the hospital approved her request, Terwilliger took her leave, underwent surgery, and returned to work after release by her doctor. During her recovery, and before her return to work, Terwilliger claimed that her supervisor, Kim Howard, contacted her weekly to inquire when she was going to return to work. During one phone call, Terwilliger claimed that she asked Howard if her job was in jeopardy, to which Howard replied that she should return to work as soon as possible. According to Terwilliger, she felt pressured by Howard’s calls to return to work early.

Terwilliger claimed that the hospital interfered with her statutory right to 12 weeks of FMLA leave by pressuring her to return to work after only 11 weeks. The district court agreed that a jury should decide that claim.

Interference includes discouraging an employee from using FMLA leave, … as well as manipulation by a covered employer to avoid responsibilities under FMLA…. To prove interference, an employee must show that the employer denied his or her benefits to which he or she was entitled under the FMLA….

Defendants argue that, because Plaintiff returned to work after her doctor had released her to return to work without any restrictions, she cannot claim that she was denied a benefit that she was entitled to under the FMLA. Defendants, however, are overlooking the fact that an interference claim includes the “chill theory.” … Interference occurs when an employer’s action deters an employee’s exercise of FMLA rights…. Here, Plaintiff had a right not to be discouraged from taking FMLA leave…. [T]he Court finds that a reasonable jury could conclude that Defendants interfered with Plaintiff’s exercise of her FMLA rights by discouraging or chilling her exercise of those rights.

It should go without saying that employers should not harass employees into returning early from FMLA leaves. But, this case is a good excuse to remind businesses that the FMLA has specific procedures in place to check on employees during FMLA leaves.

• If the employee’s medical certification indicates that the minimum duration of the serious health condition is more than 30 days, an employer must wait until that minimum duration expires before requesting a recertification.

• In all cases, an employer may request a recertification of a medical condition once every 6 months, even if the original certification is for a longer period of time.

• Otherwise, an employer may request recertification no more often than every 30 days, and only in connection with an absence by the employee, unless the employee requests a leave extension, the circumstances described by the previous certification have changed significantly, or the employer receives information that casts doubt upon the employee’s stated reason for the absence or the continuing validity of the certification.

In all cases, employers should avoid personal contact to check on the return-to-work status of an employee on an FMLA leave, and follow these timelines if a recertification of a serious health condition is necessary.

[Hat tip: FMLA Blog and FMLA Insights]

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

The Internet is a dangerous place for human resources

The Internet is a fabulous resource for businesses. For example, I could conduct a Google search for “social media policy” and fine some wonderful results, including an online database of 164 real-world examples. Because of the Internet’s easy access to information, it creates a strong temptation for businesses to do-it-themselves when it comes to policies and forms.

Not all websites, however, are created equal. Just because you find something on the Internet does not mean that its legal. Take, for example, Pre Employment Medical Questionnaire, which has at least 8 different questions that violate the ADA:

• Do you smoke?
• Do you drink alcohol?
• Are you under any medication?
• Are you under any medical supervision?
• Have you ever suffered from an ailment that resulted in an absence from work?
• Please indicate the total number of sick days you took out in the past year?
• Have you ever been admitted in hospital?
• Do you suffer from any medical condition that could hamper your sight, hearing, coordination or other sensory ability?

(For good measure, it also asks for employees’ dates of birth, which would constitute unlawful age discrimination, and height and weight, which could have a disparate impact based on sex).

The website says, “During the recruitment process most companies require to find out the medical history of all prospective employees.” Trust me, the only companies that ask for this information from prospective employees are those that want to find themselves on the losing end of a disability discrimination lawsuit. When searching the Internet for DIY policies and forms, do yourself and your business a favor and run them by employment counsel before using them. One 15 minute consultation could save you years in court and hundreds of thousands of dollars in legal bills.

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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.

Oh my god, they're really alive!

We found this when we returned to our little guy's room after a walk. We love the peds staff at the Clinic.

Patrice O’Neal on sexual harassment (NSFW)

Today is President’s Day (no, this post is not a dated Bill Clinton joke). The courts are closed. The banks are closed. There’s no mail. And, we’re still in the hospital with our son (who has stabilized), in need of a laugh or two. I saw this over the weekend on Comedy Central. Because the topic fits and it made me laugh really hard, I thought I’d share (with tongue planted firmly in cheek).

The video is definitely NSFW, so if you are working today you might want to wait until you get home tonight to press play. And if you’re easily offended you might just want to to skip the video altogether. Patrice is about as un-PC as they come. You’ve been warned.

Enjoy. I’m back tomorrow with more serious content about the risks of using the Internet as the source for your HR policies and forms.

Jokes.com
Patrice O'Neal - Harassment Discussion
comedians.comedycentral.com
Jokes Joke of the Day Funny Jokes

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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 #165 (the medical update edition)

So we’re on day 9 at the Cleveland Clinic, the only medical facility in the world where it’s actually a good think to say you’re at the Clinic. Our little guy seems to have stabilized. The juices flowing out of his stomach are ever so slightly less in volume and lighter in color, which suggests that the very large hematoma that is blocking one-third, and maybe as much as two-thirds or even all, of his small bowel, is starting to slowly subside. This is not to say that we are headed home anytime soon. He’ll need to be off the NG tube for at least 24 hours, and able to keep drink down without vomiting before they’ll even think about discharging him. It could be anywhere from another week to three weeks before he can again sleep in his Buzz Lightyear bed. In the meantime, we continue to watch his blood counts, which have been low. There was talk of a transfusion the past couple of days, but I think we’ve dodged that bullet. And, if there’s a bright side (which I usually try to find), we’re hoping the nourishment he’s getting through his PICC line will fatten him up some, since he’s a little guy to begin with.

Thank you everyone for your thoughts and prayers this past week. It means more than I can communicate.

Here’s what I read this week (trust me, I’ve had a lot of downtime staring at the hospital room walls):

Social Media & Workplace Technology

• Small Firms, Big Lawyers: Social Media and Breast Implants – from Jay Shepherd at Above The Law

• Using Social Media in Union Organizing – from Workplace Prof Blog

• Overlawyering and Social Media – from Legal Developments In Non-Competition Agreements

• Facebook Business Etiquette: Why You Shouldn’t Friend Your Boss – from CBS MoneyWatch

• A Teachable Moment: Why Dissing Students on Your Blog Isn’t a Good Idea – from TLNT

• Employees and Social Media: Empower and Reward them, or Fear Them – from Social Media Today

• Insurance For Social Media Users? – from Social Media Employment Law Blog

• Social Media Posting Gets Firefighter Fired – from Alabama HR Law

• Yes, you CAN discipline employees who abuse social media – from The Employer Handbook Blog

• Could Your Firm’s E-Mail Policy Run Afoul of the Federal Wiretap Act? – from EDD Blog Online

• Eighth Circuit declares RAZR a computer under federal law – from Engadget Mobile

• Juror Study Shows More of a “BlackBerry Effect” Than a “CSI Effect” – from Ride The Lightning

Discrimination

• Screening Out Unemployed Job Seekers? You May Be Breaking the Law – from the Evil HR Lady, writing at BNET

• The Cases Companies Are Watching: The Cat’s Paw Cases – from Employment & the Law

• Harassment in the hot tub: even bizarre cases require a measured response – from Donna Seale’s Human Rights in the Workplace

• Supreme Court Upholds “Relative” Retaliation Claim; Avoids Setting “Bright Line” Rule — Part II, Assessing Thompson Decision’s Significance – from George's Employment Blawg

• New EEOC Budgetary Request To Congress Portends Increased Governmental Litigation In 2011/2012 – from Workplace Class Action Litigation

• Examining Questions of Disparate Impact – from Stephanie Thomas’s Proactive Employer Blog

Wage & Hour

• New Bill Would Raise Minimum Wage for Tipped Employees – from Maryland Employment Law Developments

• Did Employer's Constant Phone Calls to Employee Violate FMLA Rights? – from Wisconsin Employment & Labor Law Blog

• Did supervisor's offhand remark amount to approval of FMLA leave? – from Stephen Meyer’s HR Cafe

• The WARN Act – Ignorance of the Law is Not a Defense! – from CPEhr

• Fog Still Shrouds The Bridge To Justice – from Wage and Hour Laws Blog

• Ninth Circuit Issues Strong Rebuke to Department of Labor, Upholds Outside Sales Exemption for Pharmaceutical Sales Representatives – from Wage & Hour Counsel

• 9th Cir.: Notwithstanding DOL’s Position Otherwise, Pharmaceutical Reps (PSRs) Are “Outside Sales” Exempt – from Overtime Law Blog

• You Learn Something New Everyday – from Michael Haberman’s Omega HR Solutions

• Dick’s Sporting Goods Settles Wage And Hour Violation Case For $15 Million – from Overtime Lawyer Blog

• Wage Hour Issues For New Companies: A Puzzlement – from Wage & Hour - Development & Highlights

Labor Relations

• NFL v. Players Association - NLRB Complaint – from Philip Miles’s Lawffice Space

• NLRB Continues Aggressive Campaign – from Employer Law Report

• The Battle Over Public Sector Collective Bargaining Begins – from Vorys on Labor

• House Subcommittee Addresses Direction of the NLRB – from Washington D.C. Employment Law Update

• Amendment to Defund National Labor Relations Board Fails House Floor Vote – from Seth Borden’s Labor Relations Today

HR and Employee Relations 

• Smoke & Mirrors - Beware of the “Newest Trend” on Smoker-Free Workplaces in Connecticut – from Daniel Schwartz’s Connecticut Employment Law Blog

• More Employers Resorting to No-Nicotine Hiring Policies – from World of Work

• Health-Care Employers Who Don’t Hire Smokers – from Molly DiBianca’s Delaware Employment Law Blog

• Do You Still Hire Smokers? – from You’re the Boss Blog

• Top Ten Employment Laws You Think Exist – That Don’t – from Screw You Guys, I'm Going Home

• Fred Has a Very Bad Day (Termination Checklist and Guide) – from World of Work

• Lack of A Background Check May Leave An Employer Liable For Negligent Hiring – from Minnesota Labor & Employment Law Blog

• Employees In A Pickle Over Office Lunches – from Workplace Diva

• Alleged Rapist Case Another Black Eye for CORI Criminal Background Check – from employeescreenIQ 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.

Out of work? Out of luck. EEOC hold meeting on use of employment status as screening tool

As I reported yesterday, the EEOC held its public meeting on the use of the exclusion of unemployed persons from applicant pools, a practice which it calls "emerging." As I expected, the EEOC is using this meeting to explore whether the use of employment status has a disparate impact on certain racial and ethnic minorities, such as African-Americans, Hispanics, and Native Americans.

According to the testimony of Algernon Austin, Director of the Program on Race, Ethnicity, and the Economy of the Economic Policy Institute, "any practice which disadvantages currently unemployed workers relative to similar employed workers will likely have a disproportionate negative impact on people of color." The Commission also heard testimony from Colorado School of Law Profession Helen Norton, who considered various defenses employers could raise under the anti-discrimination laws to a claim of disparate impact. Professor Norton considered possible claims of job-relatedness and business necessity, such as current employment as a signal of job performance, current employment as a proxy for relevant experience, and as a tool to reduce the number of applications received. With little explanation, she rejected each possible defense.

The EEOC did take testimony from two advocates for employers, James Urban, an attorney with Jones Day, and Fernan Cepero, Vice President for Human Resources The YMCA of Greater Rochester and representative of the Society for Human Resource Management. Mr. Urban relied on his experience to cast doubt on the legitimacy of this issue as a real problem:

At end, under the widespread practice that I have seen employers follow, the simple fact that the applicant is or was unemployed does not operate to disqualify the applicant. The reason the employer may decline to hire the applicant will be the underlying reason the applicant became unemployed, and typically it is job-related. In sum, it is my experience and belief that there is not a widespread practice among employers to disqualify applicants on the basis of unemployment. I submit to you that the anecdotal examples contained in a media reports over the past year or so regarding such circumstances are, when viewed in the broad scope, isolated incidents.

Mr. Cepero elaborated further, challenging that the blanket exclusion of the unemployed is not a good HR practice, and runs contrary to the best interest of companies that simply look to fill jobs with the best people available:

Employers, in SHRM’s experience, whether operating in the currently challenging economy or in more robust times, are focused on finding the right people for the job, regardless of whether or not they are currently employed. Our members recognize that any type of blanket exclusion raises concerns under Title VII. What’s more exclusionary policies are poor business practices because they prevent organizations from accessing some of the best available knowledge, skills and abilities in a given labor force.

This public meeting was fascinating. The EEOC is looking for systemic discrimination in new and unique places. Just because something might be bad business, however, does not mean it is discriminatory. Nevertheless, employers who use blanket screening tools such as employment status should be aware that the EEOC may be watching. Employers would be wise to document the job-relatedness and business necessity for all screening tools to be prepared if the EEOC appears on your doorstep.

For more information about yesterday's meeting, the EEOC has published the bios and written testimony of each of its presenters.

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

EEOC to examine the treatment of unemployed job seekers

Later this morning, the EEOC will hold a public meeting to examine employers’ practices of excluding currently unemployed persons from applicant pools. Presumably, the EEOC is considering whether using current unemployment status as an applicant screening tool has a disparate impact based on race.

As a management-side attorney, my natural inclination is to write this story off as the EEOC looking for another way to hamstring the ability of companies to use their best judgment in making personnel decisions. Then, I considered the following data, provided by the Center for Economic and Policy Research:

If the unemployment rate for blacks is nearly double that for whites, and Hispanics nearly 50% higher, can one argue in good faith that a disparate impact does not exist? I am not a statistician, but the impact of this data looks significant to me. Is the real question, then, not whether unemployment status has a disparate impact, but whether using current employment status is job-related for the position in question and consistent with business necessity? I can envision lots of legitimate uses for employment status as a screening factor for lots of types of jobs.

I am very curious to the read the speakers’ comments from today’s EEOC meeting to understand their thoughts on the legitimacy of using this criterion as a screening factor. I am sure I will have more to share tomorrow after digesting the notes from today’s EEOC meeting.

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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.

New York Times on workplace smoking bans

Last week, the New York Times reported on a growing trend in the medical profession: hospitals and other health care providers that refuse to hire smokers:

More hospitals and medical businesses in many states are adopting strict policies that make smoking a reason to turn away job applicants, saying they want to increase worker productivity, reduce health care costs and encourage healthier living. The policies reflect a frustration that softer efforts—like banning smoking on company grounds, offering cessation programs and increasing health care premiums for smokers have not been powerful-enough incentives to quit.

The Cleveland Clinic, for example, will not hire any smokers. Its website also offers a good example of a nonsmoking hiring policy [pdf]. It also has banned the sale of any non-diet sodas anywhere on its campus. It has no problem, though, selling McDonalds, doughnuts, and hubcap sized cookies (which are delicious) in its cafeteria, so explain that logic to me.

For her part, the Evil HR Lady believes that these policies make for bad human resources:

Companies should focus on offering incentives for quitting. Smokers should have to pay higher health insurance premiums. But, if they ban people who smoke entirely, they are missing out on some great people, who made a big mistake at 13.

As for me, I’m ambivalent as to whether it is good policy or bad policy to screen out smokers from your hiring pool. I’m against these policies for another reason—they may constitute unlawful disability discrimination. As I wrote more than a year ago:

[T]he “regarded as” prong of the new ADA is sufficiently broad to possibly encompass actions taken against employees pursuant to employer anti-smoking policies.... Employees can claim that anti-smoking policies violate the ADA. Addiction is a protected disability. Diseases related to or caused by smoking (cancers, lung diseases, asthma, and other respiratory conditions, for example) are also protected disabilities. Employees will claim that an adverse action taken pursuant to an anti-smoking policy is being taken because the employer regards the employee as disabled. Adverse actions taken against employees because of smoking should now be viewed as high risk, at least until courts begin weighing in on this controversial issue.

So, readers, I turn the floor over to you. A poll in Crains New York is running 54% to 46% against smoker discrimination. Does your workplace have an anti-smoking policy? Are you for them or against them, and why?

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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 special circle of hell is reserved for lawyers that don’t extend professional courtesies

I write this post to vent, not to indict. I therefore withhold the names of the guilty.

For those that do not follow me on twitter, I’ve been dealing with an ill child for the past few days. What started as a routine endoscopy turned into an extended stay at the Cleveland Clinic after he developed a hematoma of the small bowel as a rare, but possible, side effect of the biopsy. After the scariest four days of my and my wife’s lives, he appears to be on the mend, although we have another couple of weeks before he is fully healed and home. From the bottom of my heart, I thank everyone for the well wishes these past days.

I was supposed to be in court this morning on a show cause hearing in what has been a very contentious case. On Friday, I left messages for all three opposing lawyers to explain that because of a family medical emergency I could not make the hearing, and to ask for their consent to a continuance. No matter how hard-fought the case, I would never dream that any attorney could refuse such a request under these circumstances. None of them even had the common courtesy to return my call.

I’ve long believed that Dante saved a special circle of hell for lawyers that do not extend common professional courtesies. Last Friday’s experience confirmed this suspicion.

WIRTW #164 (the you give love a bad name edition)

In honor of Valentine’s Day, Vault.com published the results of its annual office romance survey. The highlights:

• 59% have participated in an office romance
• 11% think office romances are never acceptable
• 20% think any office romance is acceptable
• 34% think employees of different levels should not engage in office romances
• 26% have dated a subordinate, while 18% have dated a superior
• 33% have had a tryst in the office, while only 4% admit to having been caught in the act (those poor 4%)

For more on the risks and dangers of office romances, I recommend Employers: Think Your Competition is Tough? Watch Out for the Valentine’s Day Card (from Daniel Schwartz’s Connecticut Employment Law Blog) and Do You Love Love Contracts? (from Manpower Employment Blawg).

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

Discrimination

• Some Practical Facts About the Americans with Disabilities Act (ADA) and the ADA Amendments Act (ADAAA) – from Employment Essentials

• What to do when a disabled employee requests an accommodation at work – from The Employer Handbook Blog

• 500,000 reasons to worry about retaliation claims – from Jay Shepherd’s Gruntled Employees

• Gay Man Fired For Complaining Of Harassment Can Bring Retaliation Claim – from Atlanta Employment Lawyer Blog

• Can They Ask That? Your Rights In Job Applications – from Screw You Guys, I’m Going Home

• Stupid Manager Tricks: Pregnancy Discrimination – from HR Cafe

• Using prospective employee’s credit reports in hiring – from Employment Law Bits

• Sexual Harassment Training: A Must-Do for Employers – from CPEhr

• Failure To Hire Was Not Racially Discriminatory Where Employer Had Established Policy Against Applicants With Theft Convictions – from California Public Agency Labor & Employment Blog

• Family Responsibilities Discrimination Quiz – from George’s Employment Blawg

Social Media & Workplace Technology

• NLRB Regional Director Discusses “Facebook Firing” Case With Morning Show – from Labor Relations Today

• The NLRB-Facebook Firing Case: Four Things Employers Need To Know – from TLNT

• Influence in Social Media: How to Find the Top Bloggers – from Social Media Today

• Egypt, Twitter and your Employment Screening Program – from employeescreenIQ Blog

• Your Employees Think They Are Smarter Than You – from The HR Capitalist, Kris Dunn

• Facebook user had standing to challenge subpoena seeking his profile information – from Evan Brown’s Internet Cases

• Nothing Says “Bad Faith” Like Throwing a Laptop off a Building – from Bow Tie Law’s Blog

• Are electronic gadgets promoting or undercutting work-life balance? – from David Yamada’s Minding the Workplace

Labor Law

• New NLRB Website – from Workplace Prof Blog

• NLRB Majority Announces New Theory of Employer Liability: the “Preemptive Firing” – from Labor Relations Counsel

• NLRB Actions to be Reviewed by Congressional Committee – from EFCA & Labor Law Reform Blog

• At will and the NLRB: Filling a void? – from Michigan Employment Law Connection

• NLRB Upholds Practice of “Bannering” – from Washington Labor & Employment Wire

HR & Employee Relations

• Holding Back Your Star’s Hair While They Puke: HR Lessons from The Social Network – from Fistful of Talent

• The Do’s and Don’ts of Employee Handbooks – from World of Work

• Arguing Is Pointless – from Harvard Business Review

• Wield the axe wisely – from Work Matters

• Workplace Violence Is Not Part of the Job - A Nursing Phenomenon – from Workplace Fairness

• Employee Performance Evaluations: The Do’s and Dont’s – from Minnesota Labor & Employment Law Blog

Competition & Trade Secrets

• Putting the Computer Fraud and Abuse Act to Work for Employers – from Molly DiBianca’s Delaware Employment Law Blog

• District Court Holds That Computer Forensic Investigation Costs Satisfy “Loss” Requirement of Computer Fraud and Abuse Act – from Trading Secret

• Enforce that Non-Compete! – from Rob Radcliff’s Smooth Transitions

• Why You Need a Non-Compete, Non-Solicitation, or Confidentiality Agreement for EVERY Key Employee – from Bottom Line Business Insights

• Trade Secret Theft: The China Syndrome – from Fair Competition Law

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

The asshole defense to harassment claims

Fortunately or unfortunately, not all upsetting or even mean-spirited conduct in the workplace is actionable. In the absence of an employee’s membership in a protected class, participation in a protected activity, or a clear public policy that prohibits the employer’s conduct, an employee cannot maintain a claim for harassment merely because his employment has become unpleasant or undesirable.

In other words, as an Ohio appellate court recently pointed out in Kimmel v. Lowe’s Inc. (quoted above), there is no law against general incivility in the workplace. Merely because the law does not provide a remedy against someone for being an asshole does not mean that you, as an employer, need to tolerate it. That decision, though, is an organizational one, not a legal one.

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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.

Would you rather?

Career Overview’s list of the 25 most difficult jobs in the world caught my eye. So, to you, my readers, I pose the following question: Would you rather clean sewers in Calcutta (#6), or work as a porn theater janitor (#24)?

I love being an attorney. Even though it’s hard work, I am grateful everyday that I am able to earn a living this way.

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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.

Avoid “kitchen sink” pleading to maintain credibility

Ramadan v. MetroHealth Med. Ctr. (Ohio Ct. App. 1/13/11) is a medical malpractice case, which is an odd fit for a blog about employment law. It teaches, though, a universal lesson about the importance of selective pleading, and not merely throwing everything against the wall and seeing what sticks.

Briefly, Mai Ramadan’s husband died in the operating room during surgery for injuries he suffered while setting his wife on fire. She then sued for the hospital for medical malpractice and loss of consortium. On appeal, she argued that the trial court wrongly admitted evidence about the arson. The court of appeals ruled that because she brought a claim for loss of consortium, the jury was entitled to hear evidence about the quality of her marriage and the events that led to the injuries:

In the instant case, plaintiff argues that evidence of the circumstances that caused the fire and resulting injuries is irrelevant to plaintiff’s medical malpractice claim…. [P]laintiff did not limit her case to a claim of medical negligence. Plaintiff chose to also pursue a claim for loss of consortium, which required proof of damages.... Accordingly, evidence regarding plaintiff’s relationship with Ramadan is relevant to rebut her claim for loss of his “companionship, cooperation, aid, and affection.” Tragically, this evidence included that Ramadan abused plaintiff, ultimately setting her on fire.

To bring this full circle to the world in which we live – employment law – consider these words of caution from Moore v. Avon Prods. (N.D. Calif. No. C 06-03425 10/4/07) about how scattershot litigation undermines one’s credibility:

Simply put, Moore has failed to come forward with any evidence that Avon’s stated reasons for firing him are pretextual. Indeed, Moore’s kitchen-sink approach to his discrimination claims only serves to highlight the extent to which his claims are mutually inconsistent and unsupported by the facts. Was he discriminated against because he was disabled? Because of his age? Because of his sex? Because of his race? Or because of his religion? While Moore urges the Court to answer “all of the above,” on the basis of the evidence before the Court, it appears the correct answer is “none of the above.”

Many take the approach that when litigation in concerned, the more the merrier. As these examples show, sometimes what you don’t argue is more important than what you do argue.

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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.