Telecommuting employees raise special wage and hour issues

At Overlawyered, Walter Olson asks whether telecommuting is the next wave of wage and hour litigation. He might have a point. Some estimate that as many as 50 million Americans work remotely at least part of the time. Because many of these telecommuters will be non-exempt, how employers track their hours and pay their wages has the potential to cause problems.
Pursuant to the Fair Labor Standards Act, non-exempt employees must be paid for all time worked, including overtime for hours in a week worked in excess of 40. Employers must also maintain a tracking system that accurately records this compensable work time. Because telecommuters work outside of the workplace, and often during odd hours, they present special problems for accurately tracking the amount of time spent working.

If your business is going to employ telecommuters, you should take appropriate measures—in a telecommuting policy or contract—to control the time spent working:

• Employers should clearly communicate to the employee the number of hours expected to be worked each week.
• Telecommuting employees must be required to accurately track all time spent working. Whatever the system used (pen and paper timesheets, Excel spreadsheets, timekeeping software, or electronic logins or other “punches”), employees must understand that they will only be paid for the amount of time reported.
• Because telecommuting employees are working without direct supervision, all submitted work should be reviewed by a manager or supervisor to ensure that the work performed correlates to the amount of working time reported. An employer cannot dock time or refuse to pay an employee for time spent working. However, an employer can take away an employee’s ability to telecommute (or otherwise discipline) if the employee proves to be irresponsible or abuses the telecommuting privilege.

Telecommuting may not be “the next big thing” in wage and hour litigation. It raises, however, enough unique wage and hour issues that inattentive employers who ignore these issues risk getting burned.

Time to play Medical Costs Price is Right

As many of you know, last month my son spent 19 days in the Cleveland Clinic. Now that he is home and, most importantly, healthy, I thought we’d have a little fun, while at the same time providing an editorial on the ridiculously high cost of American medical services. It’s time to play Medical Costs Price is Right.

Here are the rules:

1. Anyone who is 18 years of age or older, a legal U.S. resident, and has a valid email address is eligible to enter.
2. Current KJK employees and their immediate family members are not eligible to enter.
3. No purchase of anything (including legal services) is required to enter.
4. Your bid will be for the total, non-insurance adjusted, cost of a 19-day inpatient stay at the Cleveland Clinic, including all procedures, doctors, tests, and labs:
   • 19 days in the pediatric ward at the Cleveland Clinic Main Campus
   • 1 endoscopy (with general anesthesia)
   • 1 PICC line insertion (with general anesthesia)
   • Professional fees for gastroenterology, surgery, cardiology, and hematology
   • Emergency room fees
   • 3 x-rays
   • 1 ultrasound
   • 2 echocardiograms
   • 16 days of intravenous feedings
   • Laboratory charges for blood work
5. The closest bid that does not go over the total cost wins.
6. Bids will be accepted until March 31 at 11:59 p.m.
7. There are 3 ways to enter:
   • Post a comment with your guess to this blog post. I will not accept any anonymous comments as an entry.
   • Send a reply with your guess to @jonhyman on Twitter, using the hashtag #MedicalCostsPriceIsRight.
   • Post your guess on the wall of the Ohio Employer’s Law Blog Facebook Page, also using the hashtag #MedicalCostsPriceIsRight.
8. Each person is only allowed one entry total, no matter how the guess is submitted. I will disqualify anyone that submits more than one guess.
9. I will reject any bids that do not follow these rules.
10. The winning bid must provide a valid address within one week of my announcing of the winner. Otherwise, I reserve the right to select the next closest bid that did not go over the total cost.
11. If no bids are submitted that do not go over the total cost, I reserve the right to select the closest overall bid to the total cost.

What will the winner get?

A box of KJK-branded Pro V1s and a KJK-branded water bottle (I never promised a car).

Good luck and happy bidding.

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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.

Understanding the legal issues of the NFL labor problems

At 11:59 p.m. Friday night, the collective bargaining agreement between the NFL and the NFLPA expired, and the owners locked out its players. We’ve all heard about lockouts before, but what does all this mean? Gabriel Feldman, at the Huffington Post, provides the answer for those unaccustomed to the ins and outs of federal labor law:

A lockout is the “withholding of employment by an employer from its employees for the purpose of either resisting their demands or gaining a concession from them.” In other words, a lockout is when an employer refuses to let workers work, and therefore get paid, as a form of leverage. A lockout is prohibited if it is motivated primarily as an attempt to discourage union membership or interfere with employees’ organizational rights. Lockouts can occur before or after a bargaining impasse has been reached.

Mr. Feldman offers answers to 25 other labor law questions necessary to understand the NFL’s labor strife, including:

• What is decertification?
• What is the process for decertification?
• Why do the players have to break up their union to bring an antitrust suit?
• And, would the NFL owners be permitted to lock out Brett Favre, and only Brett Favre?

The article is mandatory reading for anyone looking to understand the basics of the complex issues behind the NFL’s ongoing and evolving labor woes.

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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 #168 (the Tiger blood … Winning … Whatever … edition)

My god, I tried to avoid Charlie Sheen this week. Yet, here’s my fourth Sheen-related post in the last four days. I guess you can’t avoid the inevitable, especially when there’s $100 million at stake. In fact, Sheen’s been a popular topic around the blawgosphere:

• Wait. Charlie Sheen Has Essential Duties? A Legal Look at His Termination Letters – from Daniel Schwartz’s Connecticut Employment Law Blog
• Charlie Sheen – from LaborRelated
• Employment Law Hits Hollywood – from the Manpower Employment Blawg
• Charlie Sheen and “Moral Turpitude” – from Koncision
• Get Ready for the Charlie Sheen Employment Litigation – from New York City Employment Lawyer
• All That’s Wrong With Social Media I Learned from Charlie Sheen – from Social Media Today
• Deadspin Publishes Charlie Sheen’s Phone Number – from The Not-So Private Parts

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

Discrimination

• Ensuring Your Wellness Programs Do Not Violate GINA – from Delaware Employment Law Blog
• Discrimination in Decisions About Near-Future and Far-Future Events – from Stephanie Thomas’s The Proactive Employer Blog
• What has the Supreme Court Done to Employer Investigations? – from Philip Miles’s Lawffice Space
• As The EEOC World Turns In 2011 – from Hunton Employment & Labor Law Perspectives™
• Supreme Court: Check before taking a supervisor’s word on discipline – from HR Cafe
• Creating A Split With the Second Circuit, The Sixth Circuit Approves Sick Leave Policies That May Reveal A Disability To A Supervisor – from Sixth Circuit Appellate Blog
• Workforce Management on sexual orientation at work – from David Yamada’s Minding the Workplace

Social Media & Workplace Technology

• OMG! Chrysler’s Twitter account drops the F-Bomb – from Eric Meyer’s The Employer Handbook Blog
• Judge Rules Facebook Won’t Be the New Frontier In Debt Collection – from Molly DiBianca’s Going Paperless
• Restrictive Social Media Policies Lead To a Better Union Case – from TLNT
• Judges use Facebook to research litigants – from Internet Cases
• Is it Really Illegal to Require an Applicant or Employee to Disclose her Password to a “Friends-Only” Facebook Page? – from Workplace Privacy Counsel
• Do You Check Facebook When Hiring? – from Nolo’s Employment Law Blog
• Why You Could Be Breaking The Law By Researching Job Candidates Online – from Business Insider
• Developing a Social Media Policy—Dos and Don’ts – from Labor & Employment Law Perspectives
• These Are The Emails Jim Tressel Sent While Being Really Serious – from Deadspin
• What the iPad 2 Means for Lawyers – from The Mac Lawyer

Labor Relations

• 10 Labor Relations Resources for HR – from The Human Race Horses
• Secretly taping the boss: Is there a problem? – from Michigan Employment Law Connection
• NLRB Explains Its Google Ads, Discontinuation of Practice – from Labor Relations Today
• National Right to Work Act Reintroduced in the Senate – from Washington DC Employment Law Update
• Is the Board Ready to Use this Union Access Case to Overturn Register Guard? – from Labor Relations Update
• The NLRB Solicits Amicus Briefs On Whether Witness NLRB invites briefs on witness statements – from LawMemo Employment Law Blog
• Union Myths – from Real Clear Politics
• Public Sector Employees Earn More than their Counterparts in the Private Sector – from LaborPains
• The Decertification Strategy for NFLPA – from Workplace Prof Blog

Wage & Hour

• Recordkeeping Under the FLSA – from Michael Haberman’s Omega HR Solutions
• Could You Be Accused of “Wage Theft”? – from Compensation Café
• The Legality Of Reducing Wage Rate To “Avoid” Overtime: The Supreme Court May Decide – from Wage & Hour - Development & Highlights
• Independent Contractor or Employee? – from HR Lawyer’s Blog

Litigation & Employee Relations

• The ins and out of tortious interference allegations after employees depart – from Work Matters
• Virginia Supreme Court Reverses Damages Award For Violation Of Nondisparagement Clause – from Laconic Law Blog
• It’s Not About the Law – from Jay Shepherd at Above the Law
• U.S. Chamber of Commerce Study Ranks States by Employment Regulations – from HR.BLR.com
• Would You Hire OJ? – from The HR Capitalist, Kris Dunn

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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.

I love it when I’m right: Charlie Sheen sues for disability discrimination

Hot off the presses, TMZ has a copy of the lawsuit Charlie Sheen filed against Chuck Lorre and Warner Brothers. And, as I discussed Tuesday, Sheen is alleging disability discrimination.

Sheen also alleges retaliation, in addition to various contractual theories. Let the fun begin!

Thanks to Eric Meyer (via twitter), for pointing me to this filing.

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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 review “significant regulations”; do you smell trouble?

According to the EEOC, it is “beginning a new, periodic retrospective review of its existing significant regulations to determine whether any such regulations should be modified, streamlined, expanded, or repealed, to make the EEOC’s regulatory program more effective and/or less burdensome in achieving its regulatory objectives.” Huh? Cutting through the government-speak, I think the EEOC is trying to say that it is looking to rewrite its regulations. Given the current political tenor of this agency, does this concern you? It certainly concerns me.

Do you have suggestions for the EEOC on why a regulation should be modified, streamlined, expanded, or repealed; data on the costs and benefits of a regulation; or how the EEOC could better achieve a regulation’s objective? If so, I suggest you email them to:

Public.Comments.RegulatoryReview@eeoc.gov

You can be sure that 1) employee advocates will be submitting their thoughts, and 2) the agency has its own agenda to further. Employers, make your voice heard in what may be a significant re-writing of the EEOC’s interpretation of Title VII, the ADEA, and other civil rights laws.

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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.

Charlie Sheen and the National Labor Relations Board

Do you remember Dawnmarie Souza? She was the employee on whose behalf the NLRB issued a complaint (which it later settled), claiming that the National Labor Relations Act protects a Facebook post a concerted activity. According to Time, the company fired Souza for “serious violations,” including “several incidents of allegedly rude behavior.” The company’s discovery of Souza’s Facebook post likening her boss to “various genital parts” was the last straw.

On Monday, CBS fired Charlie Sheen, in part because he made public disparaging comments about his boss. Charlie Sheen is a member of SAG. He also has his own “performance” problems. Should he file an unfair labor practice charge with the NLRB, based on his own protected, concerted activity—for example, calling his boss a “stupid, stupid little man and a pussy punk”; a “piece of  shit”; a “turd”; and a “clown”?

Or, is Charlie Sheen being able to sue his employer over these comments as ridiculous as Dawnmarie Souza being able to sue hers? Just saying.

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

Does CBS “regard” Charlie Sheen as disabled under the ADA?

Yesterday, CBS finally pulled the plug on Charlie Sheen. I go back and forth whether he’s legitimately off his rocker, or he’s pulling off a calculated publicity stunt. Either way, CBS had enough and officially terminated him. TMZ published CBS’s 21-page termination letter [pdf].

Sheen’s agreement provides for termination in the event of “Incapacity,” including “mental disabilities, which due to the unique nature of Performer’s Obligations, are not subject to reasonable accommodation and which render Performer unable to perform the essential duties of Performer’s position.” Here’s how CBS’s lawyers discussed the touchy issue of terminating an employee with an apparent mental illness.

The facts establish that there was a serious material change in Mr. Sheen’s attributes that rendered him unwilling or unable to perform his essential duties. As the lead actor in a successful television comedy, Mr. Sheen’s essential duties encompass more than just showing up and delivering lines. One essential duty is working cooperatively and creatively with the other persons critical to the production. Mr. Sheen went from an actor who performed those duties to an individual whose self-destructive conduct resulted in his hospitalization, his inability to work at all for a period and the rapid erosion of the cooperative and creative process necessary to produce the Show. Indeed,

Mr. Sheen’s shocking behavior has continued since production was halted, further confirming such incapacity and/or a serious health condition.

CBS disposed of the contractual argument, but has it opened itself up to a claim under the ADA?

The ADA (as amended by the ADA Amendments Act), not only covers employees with actual disabilities, but also employees that an employer “regards as” disabled. There is no doubt from reading the termination letter that CBS fired Sheen because it “regarded him” as having a mental impairment. The legality of this termination under the ADA will hinge on whether Sheen is a “qualified individual”—that is, can he perform the essential functions of his position with or without reasonable accommodation. CBS clearly believes the answer is “no.”

Given the amount of money at stake, a court or arbitrator will have the final say. I suspect, however, that given Sheen’s public tirades about his boss, coupled with his public displays of incoherence (real or calculated), he is going to have a tough row to hoe in litigation.

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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.

Follow these 6 easy steps to avoid harassment and retaliation liability

Do you want to avoid harassment and retaliation liability at your company? Here are six easy steps to follow:

1. Have a sexual harassment policy, which includes procedures for employees to complain about harassment.
2. Train all employees on the harassment policy.
3. Make sure your human resources manager knows the definition of sexual harassment.
4. Do not let a manager expose his genitals to female employees, and force one to place her hand on his private parts.
5. Do not require women to participate in a “kissing” or “smooching” club to receive the sales leads and accounts necessary to earn commissions.
6. Do not fire women who reject managers’ sexual advances and complain about them.

According to the EEOC, a Memphis company failed in each of these steps. The result—a $1.5 million verdict.

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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 #167 (the fable-ulous edition)

Earlier this week, the Supreme Court issued what I believe will end up being one the most significant employment decisions of the last decade—Staub v. Proctor Hospital. This case has to ability to gut summary judgment in any discrimination case (except age) in which a supervisor is accused of having a discriminatory animus. (And are there any discrimination cases in which a supervisor does not have some role in the adverse action?) Many of my blogging brethren have chimed in on this case. Here’s a survey of the 10 best I’ve read:

• With a Friend Like Justice Scalia ... Cat’s Paw Decision Not Very Employer Friendly – from Michael Fox’s Jottings By An Employer’s Lawyer
• US Supreme Court Holds Employers May Be Liable Under “Cat's Paw” Theory – from California Workforce Resource Blog
• U.S. Supreme Court UNANIMOUSLY green-lights even MORE discrimination claims – from The Employer Handbook Blog
• U.S. Supreme Court Allows “Cat's Paw” Theory of Liability in Discrimination Cases – from Daniel Schwartz’s Connecticut Employment Law Blog
• Employers Liable for Supervisor Bias – from Tim Eavenson’s Current Employment
• Supreme Court Upholds “Cat's Paw” Theory In Employment Discrimination Cases – from World of Work
• Cat’s Paw is In: Supreme Court Issues Unanimous Pro-Employee Decision in Staub v. Proctor – from New York City Employment Lawyer
• The Effect of a Cat’s Paw on Social Media and Employment Law – from Social Media Employment Law Blog
• Supreme Court Decides Cat’s Paw Issue in Staub v. Proctor Hospital. Part I — The Decision – from George’s Employment Blawg
• Opinion recap: “Cat’s paw” theory upheld – from SCOTUSblog

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

Social Media & Workplace Technology

• Sexting and Other Bad Career Moves – from Evil HR Lady, Suzanne Lucas
• Lawyer Fired For Comment Made on Twitter – from Molly DiBianca’s Going Paperless
• Gay Teacher Terminated For Blog Post on Same-Sex Relationship – from Joe’s HR and Benefits Blog
• Facebook and employers: new ways to get information about employees – from John Holmquist’s Michigan Employment Law Connection
• Social Media and Employment Law: Six Things You Need To Know – from Monster Thinking
• Md. Agency Suspends Facebook-Password Policy – from Delaware Employment Law Blog
• Who Owns Your Contacts and Communications? – from Social Media Today
• Update, Update, Update Your Document Retention Policies! – from Social Networking Law Blog
• On the temptation to declare “email bankruptcy” – from Bob Sutton
• Cosmic Law and social media – from Jay Sherherd’s Gruntled Employees
• Posting Patient Photos—The Newest Example of Social Media Implications for the Workplace – from Digital Workplace Blog
• What is a reasonable cost that should count as loss under the Computer Fraud and Abuse Act? – from Internet Cases

Labor Law

• Private vs Public vs Federal Unions: Weighing in On Wisconsin – from Michael Haberman’s Omega HR Solutions
• NLRB Proposed Rule Draws 6500 Comments, Controversy – from Vorys on Labor
• Poll Shows Majority Support Public Employee Unions and Collective Bargaining – from George’s Employment Blawg
• White House to NLRB: Cool the Rhetoric – from Workplace Prof Blog
• Are Unions Obsolete? – from Manpower Employment Blawg

Discrimination

• Training video made things worse, cost employer $930,000 – from Stephen Meyer’s HR Cafe
• We Fought the EEOC, and We Won – from Alabama Employment Law Report
• Must “Adverse Employment Action” be Tangible? – from Wyatt Employment Law Report
• What’s Wrong With “Diversity” Preferences For Whites? – from Discriminations

HR & Employee Relations

• March Mayhem Bracket For Employers: Biggest Workplace Headaches – from Fisher & Phillips’s Labor Letter
• Let the Madness Begin – from Employment Essentials
• Professionalism and HR – from Sindy Warren at the Warren & Hays Employment Law Blog
• The Workplace Bill of Rights by Workplace Fairness – from David Yamada’s Minding the Workplace
• An Alternative to Indemnification Language for Koncision’s Confidentiality Agreement – from Koncision
• The Key to the Defendant Apology: Say What You Mean, and Mean What You Say – from Litigation PostScript. Persuasion Strategies for Litigators
• Job Descriptions: Administrative Hassle or Best Friend? – from Restaurant Law Blog
• Workplace (aka “fake”) spouses—a lot of hype, but here’s how to avoid problems. – from Employment and Labor Insider

Wage & Hour

• Not all Home Depot Assistant Managers are Created Equal … or at least Similarly Situated – from The Wage and Hour Litigation Blog
• Court of Appeal Limits Employers’ Discretion to Set the Workweek/Workday – from What’s New in Employment Law?
• SCOTUS Denies Cert in Novartis FLSA Case – from Philip Miles’s Lawffice Space
• Warehouse Workers Allege Wage Theft, Demand Pay Stubs – from Workplace Fairness
• Federal Judge Finds Two Dollar General Assistant Store Managers To Be Exempt Executives – from Wage and Hour Law Update
• City of Columbus May Require Employees Returning from Sick Leave to Provide Doctor's Note – from Employer Law Report
• ABA’s 2010 Family and Medical Leave Act Report is Out – from Wisconsin Employment & Labor 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.

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.