Reading the tea leaves: The Dukes v. Wal-Mart oral argument

Today, the Supreme Court heard oral argument in Dukes v. Wal-Mart (transcript available here). Dukes will determine the propriety the certification of the largest sex-discrimination class action ever—a nationwide class of 1.5 million employees. I've previously covered the background of this case. If you have any doubts about the potential significance of Dukes, consider that 66 uninvolved businesses and lobbying groups filed 28 different briefs with the Court advocating for one side or the other. I’m not sure of the record for these filings, but Dukes has to be close.

According to Bloomberg Businessweek, “The suit, citing what are now dated figures from 2001, contends that women are grossly underrepresented among managers, holding just 14 percent of store manager positions compared with more than 80 percent of lower-ranking supervisory jobs that are paid by the hour.” According to Wal-Mart, however, the certified class “includes too many women with too many different positions in its 3,400 stores across the country. [I]ts policies prohibit discrimination and that most management decisions are made at the store and regional levels, not at its Bentonville, Ark., headquarters.”

In pre-gaming today’s oral argument, the Los Angeles Times not only framed the issues but also the importance of this case:

The court’s ruling could be the most far-reaching decision on job bias in more than a decade, according to experts on both sides. A win for [the plaintiffs] could open the door for the broader use of statistics to prove job discrimination—and not just on behalf of women, but also for minorities or persons with disabilities.

However, a win for Wal-Mart could deal a death blow to nationwide job-bias suits by ruling that employees who work in different stores and hold different jobs do not have enough in common to be a class.

Reading the tea leaves, I predict a resounding Wal-Mart victory at the Supreme Court. It is no surprise that given the political makeup of the Court, Justice Kennedy is the swing vote in close cases. As Justice Kennedy goes, so goes the majority. Thus, the following exchange between Justice Kennedy and the plaintiff’s lawyer signals that employees’ string of victories in employment cases may be coming to an end:

   Q: It’s not clear to me: What is the unlawful policy that Wal-Mart has adopted, under your theory of the case?

   A: Justice Kennedy, our theory is that Wal-Mart provided to its managers unchecked discretion in the way that this Court’s Watson decision addressed that was used to pay women less than men who were doing the same work in the same – the same facilities at the same time, even though – though those women had more seniority and higher performance, and provided fewer opportunities for promotion than women because of sex.

   Q: It’s – it’s hard for me to see that the – your complaint faces in two directions. Number one, you said this is a culture where Arkansas knows, the headquarters knows, everything that’s going on. Then in the next breath, you say, well, now these supervisors have too much discretion. It seems to me there’s an inconsistency there, and I’m just not sure what the unlawful policy is.

Suffice it to say that if the key vote on the Court does not fully understand the plainitffs’ argument, Wal-Mart is feeling pretty good about its chances right now.

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

Ohio House considering comp time bill (HB 61)

One of the biggest wage and hour mistakes a company can make is assuming that it is legal to pay comp time in lieu of overtime for any hours employees work in excess of 40 in a work week. Make no mistake, with the exception of state and local governments, it is illegal to pay comp time as a replacement for overtime wages.

Ohio House Bill 61, currently under consideration, is trying to change this rule for Ohio’s small businesses. HB 61 would allow workers to bank up to 240 hours of comp time per year. At the end of a year, employers would have to pay out overtime wages for any unused comp time. Covered workers would have the right to chose between comp time and overtime pay. Employers would be prohibited from requiring workers to elect comp time, in addition to threatening, intimidating, or firing workers who choose overtime wages.

Here’s the catch: this bill only applies to those small businesses covered by Ohio’s Fair Wage Standards Act but not covered by the Federal Fair Labor Standards Act—those that have gross annual gross sales between $150,000 and $499,999.99. Nevertheless, according to PolitiFact Ohio, this bill has the potential to reach at least 10,000 Ohio small businesses.

HB 61 is a significant move in the right direction to making Ohio a more business-friendly environment. By allowing small businesses the ability to offer comp time to employees, Ohio’s small businesses will be able to provide workplace flexibility that currently does not exist and that employees covet. This benefit will help Ohio attract and maintain the small businesses we need as the backbone of our economic recovery.

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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 5 most interesting things about the ADAAA Regulations

Last Friday, the EEOC published its long-awaited (and hotly debated) regulations implementing the Americans with Disabilities Act Amendments Act (ADAAA) [pdf]. The blawgosphere has lit up with extensive summaries. Instead of doing the same, I thought I’d share with my readers what strikes me as the five most interesting things I’ve found in these regulations.

     1. Broad Coverage. In case there is any doubt in anyone’s mind, the purpose of the ADAAA is to make it easier for employees seeking the ADA’s protection to establish a disability within its meaning. In other words, employers, the EEOC, and courts are supposed to interpret the definition of disability “broadly.” As a result, ADA cases will no longer focus whether an employee qualifies as disabled, but instead on the merits of the challenged employment decision. Notwithstanding the breadth of these amendments, groups such as the U.S. Chamber of Commerce and SHRM (registration required) are applauding the EEOC for the pro-business changes incorporated into the regulations.

    2. Individualized Assessments for Medical Conditions. The regulations abolish any notion that certain medical conditions will always qualify as disabilities. Instead, the regulations call for an “individualized assessment” of whether a certain condition “substantially limits a major life activity.” For many conditions, this assessment should be simple and straightforward. For example, deafness, blindness, intellectual disability, partially or completely missing limbs, mobility impairments requiring use of a wheelchair, autism, cancer, cerebral palsy, diabetes, epilepsy, HIV infection, multiple sclerosis, muscular dystrophy, major depressive disorder, bipolar disorder, post-traumatic stress disorder, obsessive-compulsive disorder, and schizophrenia will usually, but not automatically, qualify as disabilities.

     3. Handling of Episodic Conditions and Ameliorative Effects. The current effects of a disability are not the only factors that one considers in determining whether a medical condition is substantially limiting. Impairments that are episodic or in remission—including cancer, epilepsy, hypertension, asthma, diabetes, major depressive disorder, bipolar disorder, and schizophrenia—qualify as disabilities if substantially limiting when active. Additionally, mitigating measures—those that eliminate or reduce the symptoms or impact of an impairment—do not factor into the “substantially limiting” calculus. These mitigating measures include medication, medical equipment and devices, prosthetic limbs, low vision devices (except ordinary eyeglasses or contact lenses), hearing aids, mobility devices, oxygen therapy equipment, use of assistive technology, reasonable accommodations, learned behavioral or adaptive neurological modifications, psychotherapy, behavioral therapy, and physical therapy.

     4. Most Adverse Action Claims Going Forward Will Be “Regarded As” Claims. The ADAAA does not change the statute’s three-pronged approach to defining disability:

• a physical or mental impairment that substantially limits one or more major life activities (an “actual disability”)
• a record of a physical or mental impairment that substantially limited a major life activity (a “record of disability”)
• when a covered entity takes an action prohibited by the ADA because of an actual or perceived impairment that is not both transitory and minor (“regarded as” disabled).

What has changed, however, is the agency’s approach to how these definitions factor into claims brought by employees. There is no rule that an employee must use a particular prong when challenging an employer’s actions. However, because an employer is not required to provide a reasonable accommodation for a “regarded as” disability, an employee claiming a denial of a reasonable accommodation must bring the claim as an “actual disability” claim or a “record of” claim. While an employee can bring an adverse action claim under any of the three definition, the EEOC believes that they should be brought under the “regarded as” prong because of its ease of coverage.

     5. Coverage for Temporary or Short-Lived Impairments. The ADAAA substantially expanded the circumstances in which employers may be liable under the “regarded as” prong by removing the requirement that an employee prove that the perceived impairment substantially limits a major life activity. The only exception to the “regarded as” prong is for “transitory and minor” impairments. “Transitory and minor” is an affirmative defense that employers must prove. It is only a defense, however, to claims brought under the “regarded as” prong. It is not a defense to actual disabilities or a record of disability.

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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 #170 (the “Come On Down” edition)

There is still one week left to enter Medical Costs Price Is Right. The bids so far:

• $10,000
• $62,000
• $64,250
• $92,750
• $117,684.34
• $192,000

The official rules, along with a picture of the exiting prize package are here. Remember, there are three ways to enter:

1. Posting a comment to the original blog post.
2. Send a reply with your guess to @jonhyman on Twitter, using the hashtag #MedicalCostsPriceIsRight.
3. Post your guess on the wall of the Ohio Employer’s Law Blog Facebook Page, also using the hashtag #MedicalCostsPriceIsRight.

Happy bidding!

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

Discrimination

• Sexual Harassment 2.0: Damn I’d Like To Tag That... – from Fistful of Talent
• “Grace Period for ADA Modifications Proposed in Congress” – from Overlawyered
• 19-Days Off for Hajj as a Religious Accommodation – from Philip Miles’s Lawffice Space
• Job Applicant Not Hired by Private Employer Because of Bankruptcy Has No Discrimination Claim Under Bankruptcy Code – from Labor & Employment Law Perspectives
• “Showdown on Wal-Mart sex-discrimination case: Supreme Court ruling could open the door for broader use of statistics to prove job bias” – from Howard Bashman’s How Appealing
• Non-Decision-Maker Bias & Discrimination Liability Under “Cat’s Paw” Theory in Supreme Court’s Staub v. Proctor Hospital Decision. Part II — Commentary – from George's Employment Blawg
• 4th Circuit Rules for Employee in Same-Sex Harassment Case – from Workplace Prof Blog
• Mrs. Palsgraf and the cat’s-paw doctrine – from Work Matters
• People With Criminal Records “Need Not Apply” – from fyiscreening
• Supremes Pretty Consistently Oppose Retaliation – from Screw You Guys, I’m Going Home
• American Idol Contestant Claims in Bias Suit He Was Told to ‘Gay It Up’ – from ABA Journal Daily News

Employee Relations & HR

• The Monty Python Guide to Being a Better Boss – from BNET
• Steps for Effective Discipline – from Michael Haberman’s Omega HR Solutions
• Fired in Real Time: The Perp Walk – from Workplace Fairness
• Preventing Workplace Violence: What’s Your Business’ Plan? – from Joe’s HR and Benefits Blog
• Ricky Gervais on Not Having a Real Job – from Harvard Business Review
• Why Workplace Bullying Should Be Legal – from the Evil HR Lady, Suzanne Lucas
• Los Angeles Times piece on workplace bullying and the Healthy Workplace Bill – from David Yamada’s Minding the Workplace
• Who Needs Background Checks with Applicants Like These? from employeescreenIQ Blog

Social Media & Workplace Technology

• FACT: Employers can sue employees for social networking – from The Employer Handbook Blog
• Social Media Spotlight: Feds’ Latest Attack on Computer-Use Policies – from Labor Relations Institute
• What is a photocopier? – from Walter Olson’s Overlawyered

Wage & Hour

• 7th Circuit Provides Further Guidance Regarding an Employee’s Obligation to Provide Notice of FMLA Leave – from Wisconsin Employment & Labor Law Blog
• Supreme Court Holds that a Verbal Complaint Constitutes “Filing” Under the FLSA in a 6-2 Majority (Kagan, J., not participating) – from Fitzpatrick on Employment Law
• Where FMLA Bonding Leave is at Issue, Unmarried Parents Have More Generous Leave Rights – from FMLA Insights
• Family Dollar FLSA Litigation Update – from Fair Labor Standards Act Law
• Labor Pains – from Corporate Counsel
• Do higher wages make you work harder? Do lower wages make you slack off? – from Slate Magazine

Labor Relations

• Tell Us Something We Didn’t Know from LaborPains.org
• NLRB Hints At Broader Agenda In Witness Statement Case – from Labor Relations Update
• NLRB On Concerted Activity – from Workplace Prof Blog
• NLRB Provides Representation Case Data, Allows Submission of Supplemental Briefs in Specialty Healthcare – from Seth Borden at Labor Relations Today

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

BREAKING NEWS: EEOC releases its final regulations interpreting the ADA Amendments Act

Today, the EEOC made available to the public its final regulations interpreting the Americans with Disabilities Amendments Act (ADAAA). The regulations will become official upon their formal publication in tomorrow’s Federal Register. The EEOC is providing a website that collects links to the final regulations, a Q & A on the regulations, a Q & A for small businesses, and a fact sheet discussing the regulations.

I am going to take the weekend to read the regulations, and will share my thoughts and analysis on Monday. In the meantime, Daniel Schwartz, at his Connecticut Employment Law Blog, reports that SHRM has advised its members “that they were pleased with several changes from the draft version.” There is at least some hope that the final regulations will not be as onerous on businesses as originally feared.

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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.

How soon is too soon to fire a complaining employee?

More than three year ago, the 6th Circuit concluded that where an adverse employment action occurs very close in time after an employer learns of a protected activity, the temporal proximity between events is significant enough to constitute evidence of a causal connection for the purposes of satisfying a prima facie case of retaliation. Yesterday, in Hill v. Air Tran Airways [pdf], the same court used a three-day gap between a complaint of discrimination and a termination to reverse a trial court’s grant of summary judgment in a retaliation case:

Although prior to the incident on April 10, 2007, Hill had not formally complained about Thornton in over five months, it is undisputed that Hill complained about Thornton only a few days before the termination. Hill complained to Hughes about Thornton on April 10, 2007, the day of the last incident with Thornton and a few days before Hill’s termination on April 13. Hill also complained about Thornton in an email to Hughes on April 10, the same day Hughes recommended Hill’s termination. Although these complaints were informal, they are relevant to an assessment of temporal proximity.

No employee is bulletproof, and employers should not shy away from firing a deserving employee merely because the employee complained about discrimination. Indeed, some employees, seeing the writing on the wall, complain in an effort to save their jobs or create a lawsuit. However, if you are going to terminate an employee close in time to the exercise of protected activity (and three days is pretty close), you should be prepared for the retaliation lawsuit that is likely to follow.

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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.

File this one away: Supreme Court continues its trend of protecting complaining employees from retaliation

Kasten v. Saint-Gobain Performance Plastics asks a very simple question: does the word “file” in the Fair Labor Standards Act’s anti-retaliation provision only refer to written complaints, or does it also cover oral complaints? Yesterday, by a 6-2 majority, the Supreme Court concluded the latter, resolving a split among the federal appellate courts and, yet again, opening employers to more expansive liability for retaliation.

The Court spent nearly half of its analysis discussing the merits of various definitions of the word “file,” only to conclude that “the text, taken alone, cannot provide a conclusive answer to our interpretive question. The phrase ‘filed any complaint’ might, or might not, encompass oral complaints.” It instead reached its conclusion that the FLSA’s “antiretaliation provision cover[s] oral, as well as written, ‘complaint[s]’” based on policy concerns:

Why would Congress want to limit the enforcement scheme’s effectiveness by inhibiting use of the Act’s com­ plaint procedure by those who would find it difficult to reduce their complaints to writing, particularly illiterate, less educated, or overworked workers? …

To limit the scope of the antiretaliation provision to the filing of written complaints would also take needed flexi­bility from those charged with the Act’s enforcement. It could prevent Government agencies from using hotlines, interviews, and other oral methods of receiving com­ plaints. And insofar as the antiretaliation provision cov­ers complaints made to employers…, it would discourage the use of desirable informal workplace grievance procedures to secure compliance with the Act….

The Court concluded that the method of communication of a complaint is irrelevant to whether it qualifies as protected activity. A complaint is protected, whether oral or written, if it is “sufficiently clear and detailed for a reasonable employer to understand it, in light of both content and context, as an assertion of rights protected by the statute and a call for their protection.”

This case merely brings the FLSA’s anti-retaliation provision in line with most, if not all, other statutes. Employers simply need to be aware that they take must all complaints seriously, whether communicated verbally or in writing.

The takeaway that is significant for employers, however, is just how difficult oral complaints are to handle. Oral complaints often place employers in the difficult position of having to prove a negative—that is, that the employee did not complain. To combat this problem, employers should consider establishing a protocol that all complaints must be documented, whether by the employee making the complaint or the individual receiving it. Provided that this protocol is consistently and uniformly followed, an employer will at least have the benefit of an inference that an oral complaint was not made if no written record exists.

As always, I’m happy to share the thoughts of my fellow blawgers:

• BREAKING: SCOTUS Holds that Oral Complaints Receive Retaliation Protection Under FLSA – from Philip Miles’s Lawffice Space
• Oral Complaints under FLSA are Shielded from Retaliation, Supreme Court Rules; Impact in Connecticut? – from Daniel Schwartz’s Connecticut Employment Law Blog
• When Your Employees Verbally Complain, You Better Listen! – from Stephanie Thomas’s The Proactive Employer Blog
• File this Supreme Court decision under “R” for RETALIATION – from Eric Meyer’s The Employer Handbook Blog
• Employees are protected from retaliation for making verbal complaint under the Wage and Hour Laws – from Business, Employment and Real Estate Law in Ohio
• Kasten v. Saint-Gobain Performance Plastics Corp., U.S., No. 09-834, 3/22/11 – from LaborRelated (which includes a great cartoon illustrating the case)
• Kasten v. Saint-Gobain - Supreme Court Rules in Favor of Employees in FLSA Complaint Case – from HR Lawyer’s Blog
• SCOTUS: Oral complaints can qualify as “filed” for FLSA purposes – from Work Matters
• Employers Cannot Fire Workers Who File Oral or Written FLSA Complaints, U.S. Supreme Court Holds – from Joe’s HR and Benefits Blog
• Supreme Court Rules that Oral Complaint Can Support FLSA Retaliation Claim – from Workplace Prof Blog
• Supreme Court Rules Oral Complaints Of Wage Violations Are Protected Under FLSA – from World of Work
• USSCt: Oral Complaints Are Covered Under the Fair Labor Standard Act’s Anti-Retaliation Provision – from Alaska Employment Law
• Oral Complaint Protected From Retaliation Under FLSA – from Hawaii Labor and Employment Law
• Supreme Court Defines When an Employee Complaint is a “Complaint” – from TLNT
• Supreme Court Decides FLSA Retaliation Case based upon Oral Notice – from Alabama Employment Law Report

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

BREAKING NEWS: FLSA anti-retaliation provision covers oral complaints, per SCOTUS

This morning, the Supreme Court held that the FLSA’s anti-retaliation provision includes oral, in addition to written, complaints.

• A copy of the opinion in Kasten v. Saint Gobain Performance Plastics is avaiable for download here.
• You can read my prior thoughts on this case here.

I’ll have analysis of this opinion tomorrow, including what it means for employers.

[Hat tip: Lawffice Space]

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

6th Circuit disables the “cat’s paw” in ADA cases (for now)

Earlier this month, in Staub v. Proctor Hospital, the Supreme Court upheld the cat’s paw doctrine in discrimination cases. While Staub was a USERRA case, at the time I pointed out the likely broad-reaching implications of the holding:

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.

It took less than three weeks for the 6th Circuit to gut this holding in ADA cases. In Lewis v. Humboldt Acquisition Corp. (6th Cir. 3/17/11), Ohio’s federal appellate court upheld this circuit’s use of a “but for” causation standard in ADA cases. Because this circuit judges ADA cases under a “but for” standard, Staub’s application of the cat’s paw to discrimination statutes using a “motivating factor” standard has no application.

Employers should not get too excited about this victory. The 6th Circuit cautioned that its reading of the ADA’s causation standard is very much in the minority, and invited an appeal to the entire circuit to revisit (and likely overrule) the issue:

The ADA prohibits discrimination “on the basis of” disability.... Of the ten circuits that have considered the contours of this causation standard, eight currently apply a “motivating factor” (or a “substantial cause”) test; that is, a plaintiff must prove that his disability was only a motivating factor of the adverse employment action in order to prevail.... The current law in the Sixth Circuit, however, is that a plaintiff must prove that his disability was the “sole reason” for the adverse employment action....

“A panel of this Court cannot overrule the decision of another panel. The prior decision remains controlling authority unless an inconsistent decision of the United States Supreme Court requires modification of the decision or this Court sitting en banc overrules the prior decision.” ...

Unless that holding is overruled by the full Sixth Circuit sitting en banc or is undermined by an inconsistent decision from the U.S. Supreme Court, it remains good law in this circuit.

For more on the implications of the Lewis decision on the continuing viability of the cat's paw in 6th Circuit ADA cases, I recommend my fellow bloggers at the Employer Law Report.

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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.

Quicken Loans beats multi-million dollar overtime claim

The Department of Labor may not be the most hospitable place for employers these days. Federal juries, however, can prove to be just the opposite. Nearly a year ago, the DOL issued a game-changing Administrator’s Interpretation that mortgage loan officers are not exempt under the Fair Labor Standards Act. Last Thursday, a federal jury concluded that a class of 350 specific mortgage loan officers employed by Quicken Loans are exempt administrative employees under the FLSA.

Here’s the jury’s verdict form:

What does this mean?

1. The jury’s conclusion that the mortgage brokers are exempt is the complete opposite of the DOL’s conclusion in its March 2010 Administrator’s Interpretation. In other words, while employers should be wary of what the DOL is doing in this area, its words is not the gospel.
2. Even though the jury concluded the plaintiffs were exempt, they took the time to fill in an unnecessary “0” on the line asking how many average hours the plaintiffs worked in a week. In other words, the jury simply did not believe the plaintiffs’ story. While lawyers are trained on the law, cases are won and lost on their facts.

The Detroit Free Press quotes Quicken Loans founder and Chairman Dan Gilbert, “It was never about money for us. It was always about right and wrong.” Crains Detroit Business estimates that the defense verdict saved Quicken Loans between $4 million and $30 million in damages for unpaid overtime. Sometimes, it absolutely pays to fight these battles.

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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 #169 (the madness edition)

If you wonder why office productivity sinks like a rock for the next two weeks, look no further than all of your employees checking their brackets while clogging up your computer network watching live college basketball feeds. Three of my fellow bloggers shared their thoughts this week on March Madness’s effect on the workplace:

• March Madness and the Workplace – from Philip Miles’s Lawffice Space
• March Madness in the Office – from Evil HR Lady
• An Employer’s FMLA Nightmare? Hooters Offers Fake “Doctor’s Notes” to Skip Work During NCAA Tourney – from FMLA Insights

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

Discrimination

• When sexting 64 times in 2 1/2 hours ISN’T sexual harassment – from Eric Meyer’s The Employer Handbook Blog
• New Bill Bans Discrimination Against Unemployed – from Stephanie Thomas’s The Proactive Employer Blog
• From Cats Paw to Proximate Cause: A Short Trip? – from Workplace Prof Blog
• “Notorious Nine” mistakes by employers in dealing with the EEOC – from Employment and Labor Insider
• Must You Allow Telecommuting as an ADA Accommodation? – from HR Daily Advisor
• EEOC Holds Hearing on Employment of Individuals with Intellectual and Psychiatric Disabilities – from Washington D.C. Employment Law Update
• Service Animals Limited to Dogs and Some Miniature Horses Under New ADA Rules – from World of Work
• ADA and Drug Addiction: The Ninth Circuit Provides Guidance – from Delaware Employment Law Blog
• The Cost of Employment Laws – from Mark Toth’s Manpower Employment Blawg
• EEOC Provides Insight Into Its Increase in Charges Filed – from Labor & Employment Law Perspectives
• Back to basic on the defense – from Work Matters

Labor Relations

• Union-Controlled NLRB Approves Union Thuggery in Union Elections – from LaborUnionReport.com
• Secret Ballot Protection Act Introduced in House – from Seth Borden at Labor Relations Today
• Questioning Dress Code Was Protected Activity, NLRB Holds – from Joe’s HR and Benefits Blog
• The Problem with Unions – from Maryland Employment Law Developments
• NLRB General Counsel Issues Memorandums Targeting Backpay Mitigation and Calculation – from Labor Relations Counsel
• Dress codes: protected, concerted activity and the non union employer – from Michigan Employment Law Connection
• Women bear brunt of union-busting – from Politico

Social Media & Workplace Technology

• Moms feel stress, guilt from work emails, texts at home – from Eve Tahmincioglu at Careers on MSNBC.com
• Tweets That Will Get You Fired – from The Not-So Private Parts
• Can an Employee Be Terminated for Simply Surfing the Internet? – from TLNT
• Who Owns My Social Media Contacts and Posts? – from Screw You Guys, I’m Going Home
• Will Tweets Destroy the NFL and NFLPA CBA Negotiations? – from Shear on Social Media Law
• Now this is how you use a corporate blog! Chrysler does it right after Twitter F-bomb – from Social Media Today

HR & Employee Relations

• Court: Failure to Follow Training Program Does Not Give Rise to Breach of Contract Claim – from Daniel Schwartz’s Connecticut Employment Law Blog
• Candidate Friendly Background Check Practices – from employeescreenIQ Blog
• Emailed Policy Updates for Noncompetes - Not A Best Practice – from Trade Secret / Noncompete Blog
• Is It Legal For An Employer To Charge A Potential Employee For A Background Check? – from fyiscreening.com
• Drug and Alcohol Testing of Employees in the Workplace – from Minnesota Labor & Employment Law Blog
• Protecting Trade Secrets Through Employee Surveillance: Risky Business – from Trade Secrets & Non-Compete Blog
• Tips for Dealing with Workplace Bullying – from Wisconsin Employment & Labor Law Blog

Wage & Hour

• Daylight Savings Time Has FLSA Implications: Employers Beware – from Wage & Hour - Development & Highlights
• Knock, Knock: We Are The Government And We Are Here To Help (Especially If You Want To Sue Your Employer) – from Employment Essential
• Supreme Court Affirms Second Circuit Court's Ruling in Wage and Hour Case: Enormous Implications for the Pharmaceutical Industry – from Employment Lawyer Blog
• Seventh Circuit Upholds Denial of FMLA Leave To Employee Who Ignored Employer's Telephone Calls – from Employer Law Report
• Ninth Circuit Defines FMLA Interference Claim – from What's New in Employment Law?
• Correctly Treating Travel Time As Hours Worked Under Fair Labor Standards Act (FLSA) Regulations – from George’s Employment Blawg
• Give Moms a Break: Anticipating Final Regulations On Break Time for Nursing Mothers – from Washington Workplace 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.

What does St. Patrick have to do with human resources?

Legend tells us that in the 5th century, St. Patrick banished all snakes from Ireland. In honor of the day that celebrates Ireland’s patron saint, consider banishing the following metaphorical snakes from your HR practices:

• Illegal questions on employment applications, such as age, medical conditions, or workers compensation histories.
• Irregularities in pre-hiring procedures, such as unlawful background checks, medical inquiries, and medical exams.
• Overly broad policies in employee handbooks, such as anti-union no-solicitation policies or policies that ban discussions of wages and other workplace terms and conditions.
• FMLA policies that do not comply with the law’s recent regulatory changes.
• Absent technology and social media policies.
• Harassment training done less frequently than ever other year.
• Misclassified employees (non-exempt as exempt, and employees as independent contractors).
• Managers and supervisors that have not been trained in the handling, discipline, and documentation of problem employees?
• Missing EEO, DOL, and other mandatory employment law postings.
• Key employees that are not locked down with appropriate confidentiality, no-solicitation, and/or non-competition agreements.

While there may never have been snakes in Ireland, we at least know that they haven’t bothered anyone on the Emerald Isle since the time of St. Patrick. Do yourself a favor by ensuring that these employment law snakes do not bother your business again.

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.