Are your employees recording you?

ABCNews asks if your employees are secretly recording workplace events to gather evidence for future discrimination and other lawsuits:

Labor experts and employment lawyers say that as cell phones and other digital devices have become more common, employees have gotten increasingly savvy about using high-tech tools to record what they consider discriminatory or inappropriate activity at the office, often in secret….

Katrina Patrick, a Houston employment lawyer…, estimates that more than half of the workers who come to see her bring audio or video recordings, photos, or electronic messages to the first meeting. “Everyone walks around with our cell phones, and our cell phones are armed with all sorts of cameras and recording devices,” she said. “I am actually more surprised when there isn't digital evidence than when there is.”

What’s more, these surreptitious recordings are lawful in Ohio, which permits audio recordings in which only one party—the person with the hidden device—knows about the recording. While Ohio is in the majority on this issue, beware in other states, 12 of which require the consent of all parties. The Reporters Committee for Freedom of the Press provides a good summary of these various state laws.

Just because Ohio law permits these recordings does not mean that you have to allow them in your workplace. What steps can you take to protect yourself and your business against these covert tactics?

• Have policies prohibiting these secret recordings.
• Remind employees before every meeting that recordings are prohibited.
• Act, swiftly, decisively, and consistently if you learn that employees have broken these rules.
• Lastly, assume that employees and job applicants are recording every workplace interaction and act accordingly.

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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.

Considerations for a pet-friendly workplace

At BNET, Laurie Tarkan answers the question of why you should take your dog to work:

• Improved staff morale and worker productivity. People don’t mind working longer hours when they don’t have to run home to walk their dogs.
• Increased camaraderie among employees. They’re a great ice breaker and can get conversations going between people who might otherwise not feel they have much in common.
• Happier employees result in enhanced job performance.
• Increase in sales reported by store owners who take their dogs to work
• Dogs can serve as a crime deterrent.

If you are going to allow for a pet-friendly workplace, however, do not ignore the legal risks: the ADA, property damage, bite risks, and workers who just don’t like dogs.

Before you open your workplace up to your employees’ pets, cover your bases with a workplace pet policy. “How do I do that,” you ask? Luckily, I’ve covered this issue before. Click through for the six points you should cover with your employment counsel before making your workplace pet-friendly.

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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 #174 (the Good Friday edition)

Ricky Gervais is a hero to all of us who live in the world of employment law or human resources. He created David Brent, the most inappropriate boss ever, on the original British version of The Office. David Brent begot Michael Scott, his U.S. counterpart and the second most inappropriate boss ever. I bring this up because last week, the Wall Street Journal published An (Atheist) Easter Message from Ricky Gervais. Ricky’s point is that being a good person doesn't necessarily equate to being a good Jew or Christian or Muslim or whatever:

It’s not that I don’t believe that the teachings of Jesus wouldn’t make this a better world if they were followed. It’s just that they are rarely followed…. God or not, if I could change one thing for a better world, it would be for all mankind to adhere to this little gem: “Let he who is without sin cast the first stone.” I assure you, no more stones would ever be thrown.

As we celebrate Passover and Easter, Ricky’s thoughts are good ones to take to heart. Two of my fellow bloggers weighed on the issue of religion in the workplace this week:

• Passover & Easter: A Time to Reflect on Religious Discrimination Issues – from Daniel Schwartz’s Connecticut Employment Law Blog
• Religion in the Workplace: 5 Devilish Employer Mistakes – from Employment and Labor Insider

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

Social Media & Workplace Technology

• Social Networks: New Hotbed for Hiring Discrimination Claims – from Computerworld
• Social Media Research May Expose Discrimination Claims – from David Carr at InformationWeek’s The Brainyard
• Can a lawyer respond to comments on their blog without creating an attorney client relationship – from Real Lawyers Have Blogs
• Social Media Signals of an Employee Departure – from Rob Radcliff’s Smooth Transitions
• A Facebook Harassment Consideration – from Philip Miles’s Lawffice Space
• Inside Straight: Social Media Policies – from Mark Herrmann at Above the Law
• Social-Media & Legal Ethics – from Molly DiBianca’s Going Paperless
• Cool or Creepy? Your iPhone and iPad Are Keeping Track of Everywhere You Go, And You Can See It – from Kashmir Hill’s The Not-So Private Parts
• Your smartphone is tracking you, and you said it was okay – from Boy Genius Report

Discrimination

• EEOC Sanctioned On Another Class-Wide Case – from Employment Class Action Blog
• Paycheck Fairness Act Not “Magic Bullet” – from Stephanie Thomas at Compensation Cafe
• Paycheck Fairness Act Not The Answer – from The ChamberPost
• Wal Mart to Pay $440,000 To Settle Allegations It Tolerated Harassment of Mexican-American Employees – from Joe’s HR and Benefits Blog
• Don’t use unemployment as a proxy when it's a poor predictor – from Michael Maslanka’s Work Matters
• Don’t Hate Me Because I’m Beautiful! Appearance Discrimination in the Workplace – from Screw You Guys, I’m Going Home
• Transgender Man Challenges Firing From Male-Only Job – from LE Blog
• Legality of Wellness Programs Under the ADA: A Good Development – from Labor & Employment Law Navigator
• Questions About the ADA Amendments Answered by EEOC Associate Legal Counsel – from Michigan Employment Law Advisor
• ADAAA: The true cost of disability accommodation under the new law – from HR Cafe
• The ADA Soon Will Cover More Disabled – from PCWorld Business Center

Employee Relations & HR

• 9 Sure-Fire Ways to Get Fired – from Evil HR Lady, Suzanne Lucas
• 7 Signs Your Employees Are Poachable – from Trade Secrets & Non-Compete Blog
• Lying On Your Resume Is Not Good For Your Career – from fyiscreening.com

Wage & Hour

• “FindLaw Legal Bloggers Sue for Overtime Pay” – from Walter Olson’s Overlawyered
• Misclassifying an employee may void a non-compete agreement – from Eric Meyer’s The Employer Handbook Blog
• SSA Resumes Social Security Number “No-Match” Letter Program – from Employer Law Report
• “Happy Days” cast sues CBS over royalties – from Entertainment Weekly
• 4th Circuit Affirms That Store Manager That Spends Majority Of Time On Non-Managerial Tasks Is Nonetheless Exempt Under The FLSA – from Laconic Law Blog
• Improperly Recouping Worker’s Overtime Pay Puts Animal Hospital in the Doghouse – from Overtime Advisor
• Tips For Managing Intermittent Leave – from Labor & Employment Law Perspectives

Labor Relations

• Former NLRB Member: Board to Rewrite Organizing Law, Ignore Federal Rulemaking Requirements – from Seth Borden’s Labor Relations Today
• NLRB Issues Complaint Against Boeing – from Workplace Prof Blog
• In Shot Heard Around Business World, Obama’s Labor Board Issues Complaint Against Boeing – from LaborUnionReport
• Labor Employment Law Blog: National Labor Relations Board Seeks To Force Boeing To Direct Work To Union-Represented Plant – from Labor & Employment Law Blog
• Criticisms Mount Against NLRB’s Attack Against Boeing, Business – from Shopfloor

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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.

ADA: Court addresses touchy issue of drug use vs. drug addiction

An employer is never prohibited from terminating an employee for on-the-job drug-related misconduct. Employers must tread carefully, however, when dealing with drug-addicted employees, who receive some protections from the ADA.

Section 12114 of the ADA addresses the handling of employees’ illegal use of drugs versus protected drug addiction:

• The ADA does not protect “any employee or applicant who is currently engaging in the illegal use of drugs.”
• The ADA, however, creates a safe harbor and protects employees who are no longer using illegal drugs and who are participating in a supervised rehabilitation program, have successfully such a program, or who have otherwise been rehabilitated successfully.

In Mauerhan v. Wagner Corp. (10th Cir. 4/19/11) [pdf], Mauerhan claimed that his former employer violated the ADA by discriminating against him on the basis of his status as a drug addict. The employer had refused to reinstate Mauerhan 30 days after his completion of a drug rehabilitation program. Wagner argued that 30 days was not long enough for one to be considered rehabilitated, and that Mauerhan was an unprotected “current drug user” when he asked for reinstatement.

The 10th Circuit refused to apply a bright-line rule as to how many days an employee needs to be clean to be considered “rehabilitated successfully” and “no longer engaging in the illegal use of drugs.”

No formula can determine if an individual qualifies for the safe harbor for former drug users or is “currently” using drugs, although certainly the longer an individual refrains from drug use, the more likely he or she will qualify for ADA protection. Instead, an individual’s eligibility for the safe harbor must be determined on a case-by-case basis, examining whether the circumstances of the plaintiff’s drug use and recovery justify a reasonable belief that drug use is no longer a problem….

Among the factors that should be considered will be the severity of the employee’s addiction and the relapse rates for whatever drugs were used.

In other words, employers and employees litigating these issues would be well-served by retaining expert witnesses (drug counselors, psychologists, or psychiatrists) who can offer opinions on these issues. An employer should also focus discovery on the employee’s level of responsibility, the job and performance requirements, the level of competence ordinarily required to adequately perform the job, and the employee’s past performance record, any one or combination of which could show that despite the rehabilitation, the employee is nevertheless unqualified to perform the essential functions of the at-issue job.

These issues are not easy to litigate, but the proper preparation and correct focus during discovery can result in a successful defense.

[Hat tip: Paul Mollica’s Outten & Golden Employment 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.

Survey of wage and hour settlement highlights risk to employers

Most companies cannot afford the risk of a big judgment in a wage and hour class action. Indeed, the real risk in defending these cases is the leverage plaintiffs gain from the threat of big judgments, and the seven figure settlements that often result.

Proof? NERA Economic Consulting published the results of a study of wage and hour settlements over the last four years:

	Mean Settlement (rounded to the nearest million)	Median Settlement (rounded to the nearest million)
2010	$9 million	$3 million
2009	$11 million	$3 million
2008	$22 million	$12 million
2007	$23 million	$14 million

While the overall settlement values have decreased over the last four years, the numbers are still dramatic. Few companies can afford to write a check for even $3 million to fund a class action settlement.

With these numbers in mind, consider whether it is worth your time and resources to understand whether your company meets its wage and hour compliance responsibilities. A wage and hour audit, which will likely cost less than 1% of what one of these settlements would cost, will go a long way toward eliminating the risk of having to fund one of these seven-figure settlements.

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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.

Don’t toss off common sense during workplace investigations

When a parent caught high school teacher Tom Elsass watching a group of teenage girls from the school parking lot with his fly down and his maleness exposed, which is the more likely explanation for the large wet spot on his shorts?

• Elsass, who claimed to suffered from a leaky bladder, was vigorously rubbing his pants “inside and out” to rid his shorts of the wet spot from an embarrassing “pee stain.”

-or-

• Elsass was masturbating.

In Elsass v. St. Marys City School District Board of Education (Ohio Ct. App. 4/18/11) [pdf], the court not bring itself to believe the former (Elsass’s amazing explanation). It not only upheld his termination, but also took away the back pay ordered by the trial court.

This case illustrates the importance of using common sense during workplace investigations. As employers, we are often forced to choose between two opposing versions of events. In doing so, we have lots of arrows in our investigatory quiver—demeanor, consistency, motive, interest, bias, candor, and accuracy of memory—each of which baring on who is telling the truth. What is often just as, if not more, important, however, is good old fashioned common sense.

No one in their right mind would believe that a grown man, caught staring at a bunch of young girls, was robustly rubbing his crotch to dry a pee stain. As an employer, you are allowed to apply your common sense in these types of situations. As long as your investigation is fair and thorough, and you base your decision on a rational business judgment, courts should not second-guess your conclusions or any adverse consequences that happen flow from them.

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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.

Employers need to beware retaliation landmines

In Baker v. Windsor Republic Doors (6th Cir. 3/8/11), the plaintiff claimed that his employer retaliated against him in violation of the ADA, which in an of itself is not all that unique. What’s different about the case, however, is the nature of the claimed retaliation. Baker, a forklift operator, claimed that Windsor retaliated against him by requiring him to waive any future workers’ compensation claims as a condition of his post-surgical return to work.

Baker took a medical leave for the implantation of a pacemaker and defibrillator. Baker’s doctor ultimately cleared him to return to work with restrictions, including avoiding contact with any electrical current or magnetic fields, and wearing an electromagnetic frequency alarm. Windsor made the requested accommodations, but uncomfortable that it could guarantee Baker’s safety, additionally asked him to waive his rights to workers’ compensation benefits for any aggravation of his heart condition. When Baker refused to agree to the waiver, Windsor refused to continue his employment. Baker sued, and a jury awarded him $113,500 for disability discrimination and retaliation.

Specifically as the retaliation claim, the 6th Circuit concluded that the workers’ compensation waiver constituted an adverse action:

[A] rational jury could conclude that the waiver request was indeed an adverse action. Trial testimony is clear that if Baker chose not to waive rights that no individual without a heart condition was required to waive, he would not be allowed to return to work for the defendant. In fact, Lawrence Land, the company's director of human resources, engaged in the following colloquy with Baker’s lawyer:

   Q Is it fair to say that as of June 2006, you did not give [Baker] the option of returning to work with the EMF alarm but without signing away his workers' compensation benefits?

   A Sir, that's absolutely correct.

   Q All right. And to this day, has he ever been given the option of returning to work with the EMF alarm but without signing away his workers' compensation benefits? …

   A Sir, I've not had any communication, so that would be correct.

Being forced to choose between forfeiting certain statutorily guaranteed rights or remaining on indefinite, unpaid leave-of-absence is indeed a dilemma that a rational finder-of-fact could conclude was adverse.

Employee medical leaves and returns to work confound employers. In this case, the employer tried to do everything right to protect both the employee and itself, but nevertheless exploded a retaliation landmine by asking for the waiver. The standard for what constitutes retaliation is so broad—any materially adverse action that might have dissuaded a reasonable worker from making or supporting a charge of discrimination—that something even as innocuous as asking for workers’ compensation waivers can qualify. Businesses not well versed in these issues (and even most that are) would be well served by seeking legal counsel in connection with employee leaves and returns to work to avoid making similar mistakes.

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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 #173 (the bird brain edition)

We know spring is in the air in the southwestern suburbs of Cleveland because the robins are out in full flight. One of these robins must have a nest somewhere outside my family room, because it keeps attacking the window (see right, for proof). It boggles my mind that something would engage in the same fruitless (and painful) endeavor for weeks on end. And yet, should it? We’ve all dealt with employees who repeat the same deficiencies. We try to rehabilitate them via performance reviews, improvement plans, and write-ups, often in vain. Are we any different than the bird?

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

Discrimination

• When an anti-harassment policy won’t defeat a bias claim... – from Eric Meyer’s The Employer Handbook Blog
• Will My Atheism Hurt My Career? – from Evil HR Lady, by Suzanne Lucas
• Equal Pay Day, The Paycheck Fairness Act, and The Easter Bunny – from Stephanie Thomas’s The Proactive Employer Blog
• STFU “We Want Boobies” (It's the Employer’s Response that Counts) – from Philip Miles’s Lawffice Space
• From the Docket: Mr. Potato Head – from Lowering the Bar
• New Jersey Court Asked to Decide What Constitutes a “Man” in Transgender Discrimination Suit – from Randy Enochs’s Wisconsin Employment & Labor Law Blog
• Employers: beware accidental discrimination – from Employment Law Bits
• A rigid return-to-work policy could cause you ADA legal woes – from HR Cafe
• The New ADA Test: Does It Walk Like A Duck – from Employment Law Worldview
• Court of Appeal Says No Accommodation for Violent Threats – from What's New in Employment Law?
• A Testy Bloomberg Emerges in Discrimination Case – from The New York Times
• Seventh Circuit Affirms Denial of Certification in Equal Pay Act/Title VII Gender Case – from Employment Class Action Blog
• Kobe Shows his True Color – from Rob Schwartz’s Fairness Matters
• Wal-Mart Could Face Major Unanticipated Problems in Historic Class Action – from Richard Levick’s The Communicators Blog (at Forbes.com)

Wage & Hour

• Class action demands pay for Huffington Post bloggers – from Walter Olson’s Overlawyered
• Working through lunch may create overtime issues for employers – from The Employer Handbook Blog
• What To Do About “Service Writers” And Similar Employees? – from Wage and Hour Laws Blog
• US DOL Issues Fluctuating Work Week Regulations: Agency Sticks To What It Knows – from Wage & Hour - Development & Highlights
• DOL Seeks To Undermine Fluctuating-Workweek Plans – from Wage and Hour Laws Blog
• DOL Wage-and-Hour Division Issues New Regulations – from Employer Law Report
• Family and Medical Leave Enhancement Act is Reintroduced – from Washington D.C. Employment Law Update

Social Media & Workplace Technology

• Using Social Networking Sites to Defend Your Company in Employment Law Cases – from Daniel Schwartz’s Connecticut Employment Law Blog
• Social Media Discovery Made Easy – from Rob Radcliff’s Smooth Transitions
• Screening Job Candidates With Facebook: Part 1 and Part 2 – from Molly DiBianca’s Delaware Employment Law Blog
• Oh, the humanity! Stupidity rules in social media and employment – from Employment and Labor Insider
• NLRB Set to Issue Complaint Arising Out of Employee Twitter Comment – from Seth Borden’s Labor Relations Today
• NLRB Protecting Negative Online Comments About Employer – from employeescreenIQ Blog
• A Union Calls a Twitter Strike: Will Anyone Notice (or Care)? – from LaborUnionReport
• In the name of productivity and consistency, employers should permit employee Internet access at work – from Work Matters
• Don't Take Your Smartphone to the Bathroom from bnet

HR & Employee Relations

• Lessons from my Daughter’s Laptop – from Harvard Business Review
• A Short Checklist to Avoid a Disgruntled Former Employee Costing Your Company $200,000 – from Michigan Employment Law Advisor
• Onboarding 101, or What NOT to Do When a New Employee Starts Work – from TLNT

Labor Relations

• If I Were Starting A Union, Here's What I’d Do... – from The HR Capitalist, by Kris Dunn
• Is the Board Ready to Move on Relocation Decisions? – from Labor Relations Update
• Board: Unenforced Handbook Rules Violate NLRA Despite Disclaimer – from Labor Relations Counsel

Litigation

• Lessons for Employers in the Rejection of “The Harvard Twins’” Efforts to Reopen the Settlement with Facebook – from Iowa Employer Law Blog
• Winklevoss-Proof Your Mediated Settlement Agreements – from Settle It Now Negotiation Blog
• Settling Non-Compete Cases: Postponing Battle for Another Day? – from Trade Secrets & Non-Compete Blog
• Employee lawsuits a bigger part of modern American workplace – from Alison Grant at cleveland.com
• Court Considers Hypotheticals In Determining Overbreadth of CVS Non-Compete Agreement – from Legal Developments In Non-Competition Agreements

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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.

Coming soon to your bookshelf: HR and Social Media

It’s no coincidence that Facebook’s founder was Time’s 2010 Person of the Year. 2011 has become the breakout year for social media, as it continues increase in importance everyday. Social media not only permeates every aspect of our daily lives, but also every aspect of today’s HR.

I am pleased to announce that I will be authoring HR and Social Media: Practical and Legal Guidance, to be published by Thompson Publishing this summer. I believe it is the first such book of its kind. It will be a comprehensive resource covering the following issues in this cutting-edge area of employment law:

1. Introduction: Social Media Horror Stories
2. What is Social Media?
3. Drafting the Social Media Policy (including Harassment, Discrimination, and Retaliation)
4. Using Social Media in Hiring and Recruiting
5. Employee Privacy and Defamation
6. Confidentiality, Non-Competition Agreements, and Trade Secrets
7. Discovery of Social Media in Litigation
8. Social Media and Labor Law

I am not alone on this task. I have recruited an amazing group of my blogging colleagues to contribute chapters (in alphabetical order):

• Seth Borden (Labor Relations Today; @SHBorden): writing about social media and labor law
• Molly DiBianca (Delaware Employment Law Blog; Going Paperless; @MollyDiBi): writing about privacy issues
• Eric Meyer (The Employer Handbook Blog; @Eric_B_Meyer): writing about discovery and litigation
• Philip Miles (Lawffice Space; @PhilipMiles): writing about the nuts and bolts of social media
• Rob Radcliff (Smooth Transitions; @robradcliff): writing about confidentiality, non-competition agreements, and trade Secrets
• Daniel Schwartz (Connecticut Employment Law Blog; @danielschwartz): writing about hiring, recruiting, and employee engagement

I’ll be writing about social media horror stories and how to draft, implement, and enforce an effective and workable social media policy, including incorporating your social media program into your harassment and discrimination policies.

Continue to watch this space in the coming months for updates, including publication, availability, and how to add this tool to your HR library.

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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.

Has the ADA swallowed the FMLA for employee medical leaves?

It’s likely that by now you know that the recently amended ADA is expansive enough to cover most medical conditions. If most medical conditions are covered as disabilities, then most employees with medical conditions will likely, at some point during their tenure, need a reasonable accommodation. One accommodation that the EEOC considers presumptively reasonable is an unpaid leave of absence, even for employers too small to be covered by the FMLA.

Yesterday morning, KJK’s Labor & Employment lawyers (me included) held a spirited Breakfast Briefing discussing the recent ADA amendments. One of the topics covered was the impact of the ADA on employers’ obligations under the FMLA. If the ADA now covers most employees’ medical issues, and the ADA requires an unpaid leave of absence, hasn’t the ADA swallowed the FMLA, at least as employee medical leaves are concerned?

In light of this intersection between the ADA and the FMLA, employers should beware the following mistakes:

1. Those un-covered by the FMLA should not assume that they never have to provide unpaid leaves to employee.
2. Employers covered by the FMLA should not assume that ineligible employees are never eligible for unpaid leaves.
3. Employers should not assume that the leave of an FMLA-eligible employee is capped at 12 weeks.

Instead non-FMLA employee medical leaves of absence should be determined between the employer and the employee through the use of the ADA’s interactive process. Otherwise, you are putting yourself in the crosshairs of an ADA claim.

For the benefit of those who could not attend yesterday’s Breakfast Briefing, the slides are available below.

Handling Employee Medical Issues Under the ADAAA (KJK Breakfast Briefing: April 12, 2011)

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

Does GINA cover sexual orientation discrimination?

Michael Haberman has a very interesting post at his HR Observations blog discussing whether the Genetic Information Nondiscrimination Act covers addictions potentially grounded in genetics, such as caffeine or nicotine addiction.

Michael’s post sparked the following thought. There are few questions that provoke as much debate as what makes a person gay or straight. Just as many people will tell you that sexual orientation is genetic, as will tell you it’s environmental, as will tell you it’s a combination of the two. If you accept for the sake of argument that sexual orientation has a genetic component, then if an employer fires an employee because of his or her sexual orientation, then hasn’t the employer acted “because of genetic information with respect to the employee?” And, if that’s the case, has GINA made the Employment Non-Discrimination Act moot before it has the chance to become law?

When the first sexual-orientation-as-genetic-discrimination lawsuit is filed, it will be a very interesting (and controversial) legal issue for a judge to decide.

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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.

FMLA coverage vs. eligibility: Employer notice and recordkeeping requirements

Last week, we discussed the difference between employer coverage and employee eligibility in the calculus of determining when you must provide FMLA leave to an employee. Today, we’ll examine the two other key areas in which this distinction matters: notice and recordkeeping.

Notice

Every employer covered by the FMLA is required to post a notice explaining the FMLA’s provisions. The notice must be posted prominently where it can be easily seen by employees and applicants for employment, and must be large enough to be legible and easily read. A copy of the poster suggested by the Department of Labor is available (as a PDF) from the DOL’s website.

Covered employers (those with 50 or more employees on the payroll during 20 or more calendar workweeks in either the current or the preceding calendar year) must post this general notice even if no employees are eligible for FMLA leave (no employee was employed for at least 12 non-consecutive months, worked 1,250 hours during the 12-month period preceding the start of the requested leave; and works at a location where the employer employs 50 or more employees within a 75-mile radius).

If, however, an FMLA-covered employer has at least one FMLA-eligible employees, it must also provide this same general notice to each employee by including the notice in employee handbooks or other written guidance to employees concerning employee benefits or leave rights, if such written materials exist, or by distributing a copy of the general notice to each new employee upon hiring. In either case, distribution may be accomplished electronically.

Recordkeeping

The FMLA requires covered employers to maintain records that disclose the following information on all employees:

• Basic payroll and identifying employee data, including name, address, and occupation.
• Rate or basis of pay and terms of compensation.
• Daily and weekly hours worked per pay period.
• Additions to or deductions from wages.
• And total compensation paid.

Covered employers who have eligible employees must additionally maintain records that disclose the following:

• Dates FMLA leave is taken by FMLA eligible employees. Time records and leave request forms are sufficient as long as the leave in those records is designated as FMLA leave.
• If FMLA leave is taken by eligible employees in increments of less than one full day, the hours of the leave.
• Copies FMLA-leave requests made by employees (if in writing), and copies of all written FMLA designations and other notices given to employees. Copies may be maintained in employee personnel files.
• Any documents (including written and electronic records) describing employee benefits or employer policies and practices regarding the taking of paid and unpaid leaves.
• Premium payments of employee benefits.
• Records of any dispute between the employer and an eligible employee regarding designation of leave as FMLA leave, including any written statement from the employer or employee of the reasons for the designation and for the disagreement.

An employer is not required to keep a record of actual hours worked for any FMLA-eligible employee who is either not covered by the FLSA or are exempt from the FLSA. For these employees, however, FMLA eligibility will be presumed for any employee who has been employed for at least 12 months. Additionally, for employees who take FMLA leave intermittently or on a reduced leave schedule, the employer and employee must agree on the employee’s normal schedule or average hours worked each week and reduce their agreement to a written record that that employer preserves.

Employers must maintain records and documents relating to certifications, recertifications or medical histories of employees or employees’ family members, created for purposes of FMLA, as confidential medical records in separate files/records from the usual personnel files, and in compliance with ADA confidentiality requirements.

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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 #172 (the juxtaposition edition)

These two stories came through my feed reader this week, and I thought that together they tell an interesting story:

Why Is It So Hard to Get a Low Paying Job? – from Suzanne Lucas, the Evil HR Lady

and

McDonald’s will hold hiring day April 19 to fill 50,000 jobs – from USAToday

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

Discrimination

• Poor, Pregnant, and Fired: Caregiver Discrimination Against Low-Wage Workers – from Workplace Fairness
• Say “cheese” – from Michael Maslanka’s Work Matters
• Can the EEOC legally recruit claimants over the radio? – from Eric Meyer’s The Employer Handbook Blog
• Soft Porn in the Workplace can be Sexual Harassment – from Maryland Employment Law Developments
• Damning Gay Co-Workers to Hell – from Philip Miles’s Lawffice Space
• Real Men Don’t Harass Other Men — And If They Do, the Employer Pays the Damages – from Joe’s HR and Benefits Blog
• EEOC’s “Shoot-First, Aim Later” Tactics Result In $751,942 Sanction – from Workplace Class Action Litigation
• Pennsylvania Federal Court Holds There are No Mixed-Motive Retaliation Claims Under Title VII – from Wisconsin Employment & Labor Law Blog
• Supreme Court Issues Victory for Employees in Anti-retaliation Claims – from The L•E•Jer
• Supreme Court to consider scope of ministerial exemption – from Walter Olson’s Overlawyered
• Can an Employer in the Employment Application Shorten the Statute of Limitations for Anti-Discrimination Claims? – from Fitzpatrick on Employment Law
• Summary of the EEOC’s Final Regulations for the ADAAA – What Companies Should Know (Part One) – from Employment & the Law
• New ADAAA regs: the untold story!!! – from Employment and Labor Insider
• What the Final Regulations on Implementing the ADAAA Mean For Employers – from Stephanie Thomas’s The Proactive Employer Blog

Social Media

• Are Managers Gun-Shy About Disciplining Reckless Online Behavior? – from TLNT
• The Era of Corp Social Media Discrimination – from Blogging 4 Jobs
• Can Employers in an FLSA Overtime Case Issue Subpoenas Concerning an Employee’s Social Media, Banking, and Texting Activities? – from Labor & Employment Law Perspectives
• Social Media in the Workplace - The Social Media Policy – from LE Blog
• Taking A Chance With Workplace Gambling – from Social Media Employment Law Blog
• How to Avoid a Social Media Lawsuit – from INC.
• Social Media and Good Manners – from Social Media Today
• Tackling the informal nature of social media – from Raising the HR Bar
• MySpace evidence was inadmissible hearsay – from Internet Cases

Employee Relations & HR

• The Joy of a National Championship: Employment Law Lessons From the UConn Huskies – from Daniel Schwartz’s Connecticut Employment Law Blog
• I Secretly Taped My Boss And Now I Want to Sue – from Screw You Guys, I'm Going Home
• Adding to the Employer's Arsenal - Garden Leave – from Rob Radcliff’s Smooth Transitions
• Top 10 Employment Background Check Issues – from employeescreenIQ Blog
• Should Preventing Work Place Violence Yield to an Employee’s Right to Bear Arms? – from Michigan Employment Law Advisor
• Three best practices for terminating insubordinates – from HR Cafe
• Hiring in the Recovery: Time for Some Honest Answers – from Michael Haberman’s Omega HR Solutions
• Why Employees Don’t Complain – from YourHRGuy.com
• Legalities? Here's How References Work in the Real World.... – from The HR Capitalist, Kris Dunn

Wage & Hour

• DOL “Updates” Mangle Longstanding FLSA Principles – from Wage and Hour Laws Blog
• DOL’s FLSA Rulemaking Limits Fluctuating Workweek, Tip Credit – from The Wage and Hour Litigation Blog
• New IRS Guidance for Health Care Reform: More News You Can Use – from Marc Alifanz at World of Work
• Are Managers Who Perform Non-Managerial Duties Entitled to Overtime Pay? – from Virginia Employment Law Journal
• Play Ball! An FMLA Lineup That Keeps You in the Pennant Race – from FMLA Insights
• Sick Leave Laws: Coming to a Town Near You! – from Labor Relations Institute
• FindLaw Legal Bloggers Sue for Overtime Pay – from ABA Journal Daily News

Labor Relations

• What to expect in Tom Brady vs. NFL injunction hearing – from Michael McCann at SI.com
• Governor Kasich Signs Senate Bill 5 - Referendum Battle Expected – from Employer Law Report
• Ohio Unions to Mandate More Money From Members to Fund SB5 Campaign Fight? – from LaborUnionReport.com
• Handbook Rules Alone May Overturn Decertification Election: NLRB – from Labor Relations Update

SpongeBob

• Career lessons from SpongeBob – from CareerDiva Eve Tahmincioglu

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

When does 50 not equal 50?

Most people think of “50” as the magic number for the FMLA. “Oh, we have 50 employees, so we now have to comply with the FMLA,” is a popular refrain among HR departments. It’s not that simple.

The FMLA has two different rules that must be met before you have to offer FMLA leave to an employee—coverage and eligibility. Coverage applies to the employer and eligibility applies to the employee. They both have the magic number 50 as a key component, but are very different in application.

Coverage. The FMLA covers any private employer that has 50 or more employees on the payroll during 20 or more calendar workweeks (not necessarily consecutive workweeks) in either the current or the preceding calendar year. Who counts as an employee for coverage purposes?

• Any employee whose name appears on the payroll will be considered employed each working day of the calendar week, and must be counted whether or not any compensation is received for the week.
• Employees on paid or unpaid leave, including FMLA leave, leaves of absence, disciplinary suspension, etc., are counted as long as the employer has a reasonable expectation that the employee will later return to active employment.
• If there is no employer/employee relationship (as when an employee is laid off, whether temporarily or permanently) that individual is not counted.
• Part-time employees are considered to be employed each working day of the calendar week, as long as they are maintained on the payroll.
• An employee who does not begin to work for an employer until after the first working day of a calendar week, or who terminates employment before the last working day of a calendar week, is not considered employed on each working day of that calendar week.

Once a private employer meets the 50 employees/20 workweeks threshold, that employer remains covered until it reaches a future point where it no longer has employed 50 employees for 20 (nonconsecutive) workweeks in the current and preceding calendar year. Thus an employer who met this threshold in 2010, drops below it later that year, and never crosses it again during 2011, would remain covered until December 31, 2011.

Eligibility. Just because the FMLA covers a particular employer, does not mean that the FMLA requires that employer to provide FMLA leave to any or its employees. An employee must still meet the FMLA’s eligibility requirements. To be eligible for FMLA leave, an employee must work for a covered employer, and:

1. Was employed by the employer for at least 12 non-consecutive months;
2. Worked 1,250 hours during the 12-month period preceding the start of the requested leave; and
3. Works at a location where the employer employs 50 or more employees within a 75-mile radius.

There you have it. At least as the FMLA is concerned, 50 does not necessarily equal 50. If you a business that has 50 or more employees who are fragmented across smaller locations, each more than 75 miles from the others, then you may fall into the weird vortex of being covered by the Act, but never having any employees who are eligible for leave.

Next week, we’ll look at what this distinction means on a practical level for your business, and also explore whether in light of the recent ADA Amendments it even matters.

How far can a Cat’s Paw reach?

Last month—in Staub v. Proctor Hosp.—the Supreme Court held that employers are liable for the discriminatory animus of managers and supervisors uninvolved with the adverse action decision making, unless the employer’s decision is entirely independent of the discriminatory input of the manager or supervisor. At the time, I argued that this broad holding would make it very difficult for employers to win summary judgment in these “cat’s paw” cases. Blount v. Ohio Bell Telephone Co.—decided a mere nine days after Staub—illustrates my point.

In Blount, two former Ohio Bell employees claimed that their employer discharged them in retaliation for taking protected leave under the Family Medical Leave Act. They argued that their managers punished FMLA users more severely than non-users who engaged in the same alleged workplace misconduct. Ohio Bell, however, argued that those managers lacked the discretion to fire the plaintiffs, and that the decision to terminate was made higher up the supervisory chain. The Court, however, concluded that the plaintiffs presented enough evidence to defeat the employer’s motion for summary judgment:

Moreover, even if the decision to punish and terminate resided higher in the supervisory chain, as Defendants argue, the animus of the Center Sales Managers can be inferred upwards where it had the effect of coloring the various adverse employment actions in this suit. See Staub v. Proctor Hospital (holding that discriminatory animus can be inferred upwards where the employee who makes the ultimate decision to punish does so in reliance upon assessments or reports prepared by supervisors who possess such animus).

The takeaway? If employers will be liable for the animus of managers and supervisors in all but the most unconnected of decisions, then businesses should get started training those managers and supervisors on their EEO responsibilities. If courts will hold you responsible for their actions, don’t you want some peace of mind that you did everything you could to guide those actions?

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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 Chicken Little teach us about social media policies?

Last week, I had the pleasure of presenting a three-hour seminar on social media and employment law at the Labor & Employment Advances Practices (LEAP) Seminar. The one issue that garnered the most discussion from a room packed with HR professionals, business owners, and in-house counsel was the NLRB’s recent foray into the regulation of social media policies. Almost to a fault, a room of informed and knowledgeable businesspeople entered the session with the notion that the NLRB had banned companies from implementing social media policies that restrict or limit employees’ speech about their employers. I did what I could to dispel that notion. Until the Supreme Court tells me otherwise, I will not be convinced that a business cannot fire an employee who trashes its reputation, or the reputations of its management personnel, online.

My back-and-forth with the conference attendees got me thinking (and tweeting with fellow blogger Daniel Schwartz) about the law of unintended consequences. Because of how the NLRB press-released this settlement, and how the media reported on it, public perception is that social media policies cannot restrict any employee speech. For example, last week a post at Above the Law quoted a Seton Hall law professor from a CBS News interview: “Souza’s case ‘has expanded the free speech rights of American workers…. If they are communicating about the workplace, and they’re talking about their supervisors, then it’s a protected activity.’” This quote accurately summarizes the public (mis)conception about the Souza case.

If the NLRB has succeeded in scaring employers, then hasn’t the NLRB won this point? Even if rational minds conclude that employees will never be allowed to defame or disparage their places of employment or the people who work there—even in the name of protected, concerted activity—hasn’t the very threat of an NLRB charge chilled employers from implementing social media policies that regulate this type of speech?

We’ll never know if the NLRB intended this chilling effect, but the NLRB’s publicity machine has done enough for corporate America to believe that the social media sky is falling, legitimately or not.

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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.

Don’t give lip service to your harassment policy

It’s one thing to have a harassment policy. In fact, you’d be hard-pressed in 2011 to find many businesses that don’t. It’s entirely another thing, however, to have corporate culture that take the enforcement of that policy seriously. EEOC v. Dave’s Supermarkets (N.D. Ohio 3/1/11), illustrates the dangers that lurk for employers that choose to give their harassment policies lip service.

In Dave’s Supermarkets, female employees complained that the store ignored their complaints when the meat department manager (no jokes, please) sexually harassed them. The court not only denied the employer’s summary judgment motion as to (most) of the employees’ harassment claims, but also permitted their punitive damage claims to proceed to a jury trial. In refusing to dismiss the punitive damages claims, the court relied heavily on the fact that while the employer maintained a detailed anti-harassment policy, it did not follow through on its own procedures when it received the plaintiffs’ complaints.

A comprehensive anti-harassment policy involves three components:

1. The anti-harassment policy.
2. Appropriate training of all employees about that policy.
3. A consistent corporate culture that take the policy and the company’s anti-harassment stance seriously.

Having a policy and enforcing it are two different animals. A policy is only as good as the people who execute it. Training and the right corporate culture are necessary to ensure that your anti-harassment policy works as best as it should and as often as it is needed. Otherwise, you are left in the awkward (and expensive) position of having to explain to a jury why your actions didn’t match your policy.

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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 #171 (the actual retail price without going over edition)

Congratulations to Kristen ten Brink (@onthe10brink on Twitter), who submitted the winning bid to Medical Costs Price Is Right:

The actual retail price of a 19-day at the Cleveland Clinic, including all procedures, labs, doctors, etc., is $106,885.10, which is at least half of what I expected. Kristen, either email or DM me your contact information and I’ll send out your exciting prize package. And, thank you to everyone who participated.

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

Dukes v. Wal-Mart

• A Skeptical U.S. Supreme Court Vigorously Questions Certification of a Mammoth Sex-Discrimination Class Action Lawsuit – from Employer Law Report
• Class-Action Lawsuits: Not The Answer for Workplace Gender Discrimination – from Harvard Business Review
• The Strong Pull of a “Day in Court”; Lessons Learned from Wal-Mart v. Dukes – from Daniel Schwartz’s Connecticut Employment Law Blog
• Supreme Court Hears Oral Arguments in Dukes v. WalMart Class Action Case – from HR Lawyer’s Blog
• SCOTUS Hears Largest Employment Law Class Action Ever – from Philip Miles’s Lawffice Space
• Fatal inconsistency in Wal-Mart Stores v. Dukes? – from LawMemo Employment Law Blog
• Oral Argument Held In Wal-Mart v. Dukes – from Laconic Law Blog
• The High Court’s Dukes v. Wal-Mart Hearing: Here is What it Might Mean – from TLNT
• Analysis Of The Supreme Court Argument In Dukes – from Workplace Class Action Litigation
• “Justices Take Up Key Issue in Wal-Mart Bias Suit” – from How Appealing
• Argument recap: A fatal flaw detected? – from SCOTUSblog
• Wal-Mart Class Action Goes to US Supreme Court – from San Antonio Employment Law Blog
• Dukes Proving To Be a Hazard to Wal-Mart – from Abovethelaw.com
• Duke v. Wal-Mart at Forbes Woman: Implicit Gender Bias and Social Science Evidence – from Settle It Now Negotiation Blog
• Reflections on the Supreme Court Argument in Dukes v. Wal-Mart – from TLNT
• Wal-Mart, The Missing Link, and Class Certification – from Stephanie Thomas’s The Proactive Employer Blog

Discrimination

• Booze, wild beaver, and a pregnant bartender. What! – from Eric Meyer’s The Employer Handbook Blog
• Former Employee Fired for Wearing Shorts – from San Antonio Employment Law Blog
• The Lilly Ledbetter Chickens Come Home To Roost – from Discriminations
• Is the ‘Mommy Track’ Still Taboo? – from The Juggle (WSJ)
• The USERRA does not provide a claim for hostile work environment – from Employment Law Matters
• 5 Ways Employers Make Plaintiffs’ Lawyers Very, Very Happy – from Employment and Labor Insider
• “Grace Period for ADA Modifications Proposed in Congress” – from Walter Olson’s Overlawyered
• Employment Nondiscrimination Act Back in Play – from Southwest Florida HR Law & Solutions
• I Reported Harassment and Now HR Wants to Meet With Me. What Do I Do? – from Screw You Guys, I’m Going Home

Wage & Hour

• Some Things Don't Have to Be In Writing: Supreme Court Protects Employees Against Retaliation After Making Verbal Complaints of Wage and Hour Violations – from Washington Workplace Law
• FLSA Scenarios: How Well Do You Know the Law? – from Michael Haberman’s Omega HR Solutions
• FMLA Atop the Top Ten Things that Trouble Human Resources - The Tricky Part of FMLA Leave Made Simple – from Employment Law 101

Social Media & Workplace Technology

• Look Before You Tweet: Employer May Be Liable For Impersonating Employee On Facebook, Twitter – from Hunton Employment & Labor Law Perspectives™
• E-Mail, Twitter, and Unsurprising Changes – from YourHRGuy
• Court Rules That Instant Message Conversation Modified the Terms of a Written Contract – from Technology & Marketing Law Blog
• McAfee Report: Hackers Are Targeting Corporate Trade Secrets Now – from Trade Secrets Blog

Labor Relations 

• UPDATE: House Committee Votes to Amend Senate Bill 5 – from Vorys on Labor
• Ohio Set To Enact Anti-Union Bill – from Workplace Prof Blog
• Ohio’s John Kasich Signs Law Limiting Government Union Power – from LaborUnionReport
• NLRB Holds Employee’s Secret Recording of Meeting is Protected Activity – from Wisconsin Employment & Labor Law Blog
• Appeals Court Gives Hospital Go-Ahead to Ban Smoking Without Union’s Consent – from Joe’s HR and Benefits Blog
• Growth and evolution in the law on protected concerted activity – from Work Matters

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

The punishment fits the crime – appropriate corrective action in harassment investigations

An employer has an absolute obligation to investigate a complaint of harassment, and, where founded, take appropriate corrective action to stop the harassment from continuing. Next week, we’ll look at the implications of when an employer fails at the former. Today, though, we’ll look at a case that helps define scope of the latter.

In Wilson v. Moulison North Corp. (1st Cir. 3/21/11), the plaintiff alleged that his employer failed to take appropriate corrective action in response to his complaint that coworkers created a workplace permeated by heinous racially discriminatory taunts. The plaintiff argued that the employer’s verbal reprimand and warning that future harassment would result in termination was too mild a sanction, and that the company should have immediately terminated them instead.

The court refused to armchair-quarterback the employer’s business judgment:

In most situations—and this case is no exception—the imposition of employee discipline is not a rote exercise, and an employer must be accorded some flexibility in selecting sanctions for particular instances of employee misconduct.... The short of it is that, given the totality of the circumstances, the punishment seems to have fit the crime....

We appreciate the sincerity of the plaintiff's outrage, but the discipline imposed need not be such as will satisfy the complainant.... The plaintiff’s argument that the sanction must have been inadequate because it was ineffective to stop the harassment is nothing more than a post hoc rationalization.... Barring exceptional circumstances (not present here), a reasoned application of progressive discipline will ordinarily constitute an appropriate response to most instances of employee misconduct.

The key takeaway here is the progressiveness of progressive discipline. When might a similar warning not suffice, and a court require more severe corrective action?

• If the perpetrators are repeat offenders.
• If discrimination is a long-standing problem for the employer.
• If the employer has a history of inconsistent discipline.

Absent these “exceptional circumstances,” do not always jump to the conclusion that a harassment investigation must end in termination. Instead, make the punishment fit the crime.

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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.

Today is the final Day for Medical Costs Price is Right

Today is the last day to enter my little Medical Costs Price Is Right Contest (official rules and pictures of the fabulous prize package here). Here are the bids so far:

• $10,000
• $62,000
• $64,250
• $92,750
• $117,684.34
• $121,000
• $140,000
• $192,000
• $234,000
• $249,999
• $265,000
• $275,000
• $386,000
• $389,750.19

Remember, the closest to the actual, retail, non-insurance adjusted price of my son’s 19-day stay at the Cleveland Clinic wins. Those of you waiting until the last minute to underbid someone else now have your chance. The contest closes at 11:59 p.m. tonight, so enter now (but not often—one entry per person). I’ll announce the winner tomorrow.

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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.