WIRTW #176 (the happy birthday to me edition)

Famous events that occurred on May 9:

• 1502: Columbus left Spain on his 4th and final trip to New World
• 1754: 1st newspaper cartoon in America—the divided snake “Join or Die”
• 1785: British inventor Joseph Bramah patents the beer-pump handle
• 1914: President Wilson proclaims Mother’s Day
• 1960: U.S. is 1st country to legalize use of the birth control pill
• 1992: Final episode of “Golden Girls” airs on NBC
• 2007: The Ohio Employer’s Law Blog debuts

Happy birthday to me on Monday. As for me, I’ll be on a much needed vacation next week, so today is the blog’s birthday (observed). I’ll be back with fresh content on May 17. In the meantime, enjoy “Best of…” next week.

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

Social Media & Workplace Technology

• 3 common-sense social-media tips to share with your employees – from The Employer Handbook Blog
• ER Doc Forgets Patient Info is Private, Gets Fired for Facebook Overshare – from Abovethelaw.com
• Social Media in the Workplace Policies – Part 1 and Part 2 – from CPEhr
• Drafting Considerations for Social-Media Policies – from Molly DiBianca’s Delaware Employment Law Blog
• Twitter surpasses 200 million users, more than 70% are international – from Boy Genius Report
• Should You Think Twice About Recommending People On LinkedIn? – from Social Media Today
• Jumping the Gun on Employee Internet Activity – from Delaware Employment Law Blog
• Managing Employees’ Use of Personal SmartPhones and Tablets for Work – from Workplace Privacy Counsel
• Protecting Company Information Using the Computer Fraud and Abuse Act – from Michigan Employment Law Advisor
• Worlds Colliding – from LaborRelated

Discrimination

• ADA amendments means suits that would have been dismissed will get to a jury – from Work Matters
• Regarding Employee as “Paranoid” and “Irrational” Not Enough To Satisfy ADA (at least pre-ADAAA) – from Daniel Schwartz’s Connecticut Employment Law Blog
• The Power of Moving to Dismiss the “False Syllogism” Discrimination Claim – from New York Labor and Employment Law Report
• Harassment and Discrimination Policies: A “Bypass” Tip – from Michael Haberman’s Omega HR Solutions
• Quran-Burner Gets His Job Back – from Philip Miles’s Lawffice Space
• What do Will & Kate, “birthers,” and ADAAA/FMLA coordination have in common? Nothing, really. – from Employment and Labor Inside
• Second-Guessing an Employer’s Response to Harassment – from Workplace Prof Blog
• Staffing Agency Violated Pregnant Employee’s Rights, EEOC Alleges – from Joe’s HR and Benefits Blog
• Reasonable Accommodations for Sabbath Observances: What Does the Law Require? – from Labor & Employment Law Perspectives
• Extra Pounds, Lighter Paychecks and Weight Discrimination – from The Proactive Employer Blog

Employee Relations & HR

• Time to Say Goodbye – from That’s What She Said
• Michael Scott on Leadership – from Manpower Employment Blawg
• Can We Learn Anything about Employee Recognition from “The Office?” – from Compensation Cafe
• “Court Says Porn on Work Computer Is Grounds for Firing” – from How Appealing
• Workplace bullying legislative movement prompts changes to employer liability insurance policies – from David Yamada’s Minding the Workplace
• Three Good Reasons for an Anti-Bullying Policy – from THRD’s Blog
• Employees Call In Sick To Avoid Commuting – from Workplace Diva
• Workplace romances: your office or mine? – from Employment Law Worldview
• Nursing Mothers as Lower Performers? They’re Not in My Office! – from TLNT
• Anyone Think Employment Screening Legislation is Hypocritical? – from Nick Fishman at employeescreenIQ Blog

Wage & Hour

• Baseball’s First Player Takes Paternity Leave – from FMLA Insights
• Do Employers Need to Pay Workers For Time Spent Turning On and Off Their Computers? – from Wage & Hour - Development & Highlights

Labor Relations

• The Latest from the NLRB on Social Media – from Workplace Privacy Counsel
• Twitter Dispute at Reuters Is Resolved – from Nolo’s Employment Law Blog
• Obama’s NLRB Strikes Again! Employees’ Vote to Decertify Voided Over Employer Handbook – from LaborUnionReport.com
• NLRB Expands Handbilling Rights on Private Property – from Vorys on Labor
• Plaintiff Alleged Actionable Retaliation Claim, Where Asserted Former Employer Denied Him Work as Independent Contractor In Retaliation for Testimony in Co-Employee’s Case – from Overtime Law Blog
• The Real Costs of Union Labor – from Labor Relations Institute

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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: subpoenas or witch hunts?

The Witch: I’m not a witch! I’m not a witch!
Sir Bedevere: But you are dressed as one
The Witch: *They* dressed me up like this!
Crowd: We didn’t! We didn’t…
The Witch: And this isn’t my nose. It’s a false one.
Sir Bedevere: [lifts up her false nose] Well?
Peasant 1: Well, we did do the nose.
Sir Bedevere: The nose?
Peasant 1: And the hat, but she is a witch!
Crowd: Yeah! Burn her! Burn her!

   – Monty Python and the Holy Grail (1975)

In EEOC v. Konica Minolta Business Solutions USA., Inc. (7th Cir. 4/29/11) [pdf], the 7th Circuit blessed the EEOC’s use of its subpoena powers in single-employee cases to try to develop systemic discrimination claims against the charged employer. By defining the EEOC’s subpoena powers broadly, this court permits the agency to conduct nothing short of witch hunts with very little, if any, evidentiary support.

The facts of the case are simple. Elliot Thompson worked in one of Konica’s four Chicago facilities. Thompson filed a charge with EEOC alleging that Konica discriminated against him because of his race and fired him after he complained about it. The EEOC, in turn, issued a subpoena to Konica seeking information about its hiring practices at all four of its Chicago facilities. Konica refused to comply, arguing that the requested materials were irrelevant to Thompson’s specific charge.

The 7th Circuit agreed with the district court that the EEOC’s subpoena was not overly broad in relation to the underlying charge:

The Commission is entitled generally to investigate employers within its jurisdiction to see if there is a prohibited pattern or practice of discrimination. Here, Thompson alleged both a specific instance and such a pattern of race discrimination…. The question … is whether information regarding Konica’s hiring practices will “cast light” on Thompson’s race discrimination complaint.

We have no trouble concluding that the information the EEOC is seeking meets that standard. The answer to the question whether Konica discriminates in hiring or in assigning employees to its various facilities will advance the agency’s investigation into possible discrimination against Thompson based on his race, as well as any more general case it might choose to bring….

Nothing in this record suggests that the EEOC has strayed so far from either Thompson’s charge or its broader mission that it has embarked on the proverbial fishing expedition. The Commission has a “realistic expectation rather than an idle hope” that the hiring materials it seeks will illuminate the facts and circumstances surrounding Thompson’s allegations of race discrimination…. [T]he EEOC limited its inquiry to the four Konica branches in the Chicago area and to sales personnel. We conclude that the information sought by the EEOC in this case is properly tailored to matters within its authority.

It should come as no surprise that the EEOC conducts investigations with blinders off. It is always on the lookout for patterns and practices of systemic discrimination. Every discrete charge of discrimination lodged by a single employee is an opportunity for the EEOC to look for its witch, even where she doesn’t exist. And, at least some courts are willing to indulge the EEOC’s efforts. Employers should not let their guards down and assume that the investigation of an employee’s charge is limited to that employee and that charge. If there are broader problems, the EEOC will find them, or paper you with subpoenas trying.

[Hat tip: Employer Law Report and 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.

(Disabled) parking wars

Few things makes me madder than when I see a car that lacks a disabled designation parked in a handicap parking space. Many a trip to the supermarket is punctuated by a conversation about why so and so thinks it’s okay to park in that spot. In my younger days, I even went so as to confront the apparent offender, but I’ve mellowed a touch with age.

When I read last week’s EEOC press release announcing the filing of a disability discrimination lawsuit against Sysco Oklahoma LLC, I wondered if I would have counseled the employer to have acted any differently (minus one key fact):

According to the EEOC’s suit, Amanda Thompson, who worked for Sysco as a customer relations expert from December 2008, was observed parking in one of the employer’s unreserved handicap parking spaces in February 2009. The same day, Sysco demanded Thompson provide Sysco a physician’s full medical release, notwithstanding the fact that Thompson had been performing her job satisfactorily at all times. Several days later, before the deadline for providing the medical release had passed, Sysco terminated Thompson’s employment.

Even the EEOC’s own policy guidance discussing reasonable accommodations permits an employer to “ask the individual for reasonable documentation about his/her disability and functional limitations” when the disability or need for an accommodation is not obvious. The EEOC’s hyperbole notwithstanding, the employer’s fatal flaw was not in asking for the doctor’s note to verify the need for the handicap parking space, but in taking action before it’s own self-imposed deadline.

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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 tosses out DOL’s internship test

A little over a year ago, the Department of Labor signaled that it was placing unpaid internships and training programs in its crosshairs, via its publication of Fact Sheet #71 (entitled, Internship Programs Under The Fair Labor Standards Act). That Fact Sheet re-affirmed the DOL’s six-factored analysis for the legality of unpaid internships.

Solis v. Laurelbook Sanitarium and School, Inc. (6th Cir. 4/28/2011) concerned whether students who worked at a school-owned nursing home as part of their schooling were employees (who must be paid) or interns/trainees (who do not).

The 6th Circuit broke ranks from the Department of Labor and refused to apply its six-factored test to determine whether the school properly classified these student workers:

We find the WHD’s [six-factored] test to be a poor method for determining employee status in a training or educational setting. For starters, it is overly rigid and inconsistent with a totality-of-the-circumstances approach, where no one factor (or the absence of one factor) controls….

[W]e hold that the proper approach for determining whether an employment relationship exists in the context of a training or learning situation is to ascertain which party derives the primary benefit from the relationship. Factors such as whether the relationship displaces paid employees and whether there is educational value derived from the relationship are relevant considerations that can guide the inquiry.

The court concluded that even though Laurelbrook obtained some benefit from the students' activities, the primary benefit of the program ran to the students. Therefore, the school properly categorized them as unpaid interns or trainees.

Notwithstanding this seemingly pro-business decision, internships continue to be a touchy wage and hour issue. Employers should be mindful of all of these principles, and tread very carefully if debating the use of unpaid interns, volunteers, or trainees.

In vitro proving to be fertile ground for sex discrimination claims

One case has the potential to be an anomaly. Two cases is a bona fide trend. Nearly three years ago, in Hall v. Nalco Co., the 7th Circuit afforded Title VII protection to a woman’s infertility treatments.

Last month, in Govori v. Goat Fifty, LLC (S.D.N.Y. 3/31/11), a different court permitted an employee—fired the day after she advised her supervisors and co-workers that she had begun fertility treatments—to proceed with her sex discrimination claim. If employers weren’t paying attention to this issue before, they should be now.

In evaluating Govori’s pregnancy discrimination claim, the court adopted the reasoning of Hall, which concluded that Title VII protects women undergoing in vitro fertilization treatments because only women are anatomically capable of undergoing these procedures:

[O]nly women undergo surgical implantation procedures; therefore, only women and not men stand in potential danger of being fired for missing work for these procedures. An employer who fires his female employee for missing work for IVF treatment discriminates not on the basis of reproductive capacity or infertility alone, but on the basis of medical conditions related to pregnancy. Thus, women who are fired for undergoing IVF are protected from such discriminatory, sex-based action by the terms of the PDA. 

The question presented here is whether an employer, having assumed the financial responsibility of salaried employment, can then fire its female employee solely on the basis that she decided to undergo IVF treatments…. Accordingly, Govori has stated a cognizable claim for sex-based discrimination under Title VII, as amended by the PDA.

Pregnancy and pregnancy-related medical procedures (such as IVF) differentiate female employees from their male counterparts. As long an employer is going to permit any employee to take time off for a non-pregnancy related short-term debilitating condition, it must make the same allowance for a female worker’s pregnancy-related medical procedures.

WIRTW #175 (the so long and thanks for the memories edition)

Last night, we said a tearful good bye to an employment lawyer’s best friend, the regional manager of Dunder Mifflin’s Scranton office and the self proclaimed world’s greatest boss, Michael Scott. In his honor, TV Line counted down the top 32 most memorable Michael Scott Moments (Part 1, Part 2, Part 3, and Part 4). And, for those who missed the television event, it’s available via NBC.com for viewing at your leisure.

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

Social Media & Workplace Technology

• NLRB is Back and Ready for Action (Part I) – from Daniel Schwartz’s Connecticut Employment Law Blog
• Blog Wars: Employer Controls and Employee Rights Regarding Personal Blogging – from The L•E•Jer
• NLRB Takes Issue With Employer’s Response to Employee’s Tweet – from Molly DiBianca’s Delaware Employment Law Blog
• An Appeal for Cooler Heads on NLRB’s Social Media Policy Enforcement – from Brian Hall at Employer Law Report
• Recommendations and References in the Social Media Context – from Social Media Employment Law Blog
• How to keep your social media profile embarrassment free – from Shear on Social Media Law
• Social Media and Your Privacy – from Social Media Today

Wage & Hour

• Cat’s Paw Already Impacting FMLA Claims – from Jeff Nowak’s FMLA Insights
• Proposed Legislation Would Expand FMLA Rights – from Wisconsin Employment & Labor Law Blog
• Independent Contractor Problems May Arise With Current Employees – from Michael Haberman’s Omega HR Solutions
• Strangulation by Regulation – from National Review Online

Discrimination

• Avoiding EEO Claims in an Environment of Heightened Enforcement – from BLEG Blog
• Woman fired for fighting at a cheese plant wins bias claim – from Eric Meyer’s The Employer Handbook
• Class Certification Denied In ADA Termination Lawsuit Over Maximum Leave Of Absence Policy – from Workplace Class Action Litigation
• Power to the People(mark)! Court Hits EEOC with $750,000 Attorneys’ Fee Award for Frivolous Lawsuit – from LE Blog
• Discrimination Against Unemployed Applicants? EEOC Hears Experts – from George’s Employment Blawg
• EEOC Files Suit Against Construction Firm – from San Antonio Employment Law Blog
• Retaliation and Racial Discrimination Claims are Spiking: Could the Bad Economy be to Blame? – from Employment Lawyer Blog
• When Bipolar Worker Makes Threats: Accommodate or Terminate? – from Case In Point

Employee Relations & HR

• Do Secretaries Have a Future? – from the New York Times
• What Should An Employer Do if Child Pornography is Discovered in the Workplace? – from Michigan Employment Law Advisor
• You be the judge: Boss fired worker who took photos to back up complaint – from HR Cafe
• Clean Departure Key To Minimizing Liability – from Legal Developments In Non-Competition Agreements
• Rightful Termination: Important Part of an Organization’s Talent Lifecycle – from TLNT
• Bringing Baby To Work: Can It Work? – from Work and Family Blog
• Debunking Myths About Employment Credit Checks – from employeescreenIQ Blog
• How To Use Credit Reports For Employment Background Checks – from fyiscreening

Labor Relations

• The Obama NLRB and Non Union Employers: Caution Ahead – from John Holmquist’s Michigan Employment Law Connection
• NFL Players Win First Legal Round – from Workplace Prof Blog
• Trio of Board Cases Continue Recent Trends – from Labor Relations Counsel
• NLRB Files Complaint Against Boeing – from Philip Miles’s Lawffice Space

Arbitration

• Arbitration As Protection Against Class Actions – from Michael Fox’s Jottings By An Employer’s Lawyer
• Class Action Waiver - What About Section 7? – from Labor Relations Update
• Federal Arbitration Act preempts state law that made class action waiver unconscionable (5-4) – from LawMemo Employment Law Blog
• How to Learn to Stop Worrying About Wage & Hour Class Actions and Love Arbitration – from The Wage and Hour Litigation Blog
• Class Action Waivers Upheld – from Manpower Employment Blawg
• The Demise Of Employment Class Actions? – from Employment Law Worldview
• Federal Arbitration Act (FAA) Class Action Defense Cases–AT&T Mobility v. Concepcion: U.S. Supreme Court Reverses California’s Discover Bank Rule And Holds Class Action Waivers Valid And Enforceable In Arbitration Agreements – from Class Action Defense Blog
• Class arbitration and unconscionability – from PointOfLaw Forum
• United States Supreme Court Decides Significant Arbitration And Class Action Case – from Labor Employment Law Blog
• Welcome Back, Arbitration? – from What's New in Employment Law?
• Supreme Court Holds That Class Action Waivers In Arbitration Agreements Are Enforceable – from Employment Class Action Blog
• Supreme Court Issues Pro-Arbitration Decision – from Washington D.C. Employment Law Update

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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.

Nuisance value

$22,000 doesn’t buy you a whole lot in litigation land. It’s not enough to take a case through trial, or even to trial. Depending on the case, it might be enough to take some discovery. If your case has a lot of motion practice, it might not even get you any discovery at all. In litigation land, $22,000 is called cost-of-defense, or, better yet, nuisance value. For this reason, I question the EEOC’s decision to boast in a press release on its website that it has settled a retaliation lawsuit for that very number. I know that the EEOC serves a purpose higher than dollars and cents, but it doesn’t make any sense to publicly brag about your nuisance value settlement … unless you happen to be the employer bragging about how you hooked some naive plaintiff on a lowball settlement.

[Hat tip: LawMemo 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.

Ohio federal court recognizes sexual orientation as a protected class for public employees

After Cuyahoga County fired Shari Hutchinson, she sued, claiming that her employer terminated her because she is a lesbian, in violation of her constitutional equal protection rights. In Hutchinson v. Cuyhoga County Board of County Commissioners (N.D. Ohio 4/25/11) [pdf], the employer sought dismissal on the ground that sexual orientation is not a protected class. The court overturned the motion and permitted the sexual orientation discrimination claim to proceed to discovery.

The court agreed with the employer that Title VII does not prohibit sexual orientation discrimination. Because Hutchinson was a public employee proceeding under the United States Constitution, Title VII did not define the court’s limits. Instead, the court concluded that it could analyze the sexual orientation claim

The Court concludes that an employee who alleges sexual orientation discrimination … is not per se precluded from establishing an equal protection claim against her employer.  Simply because Title VII does not include sexual orientation as a statutorily protected class does not, in this Court’s view, automatically remove all constitutional protection where a plaintiff employee claims equal protection violations based on her membership in that class…. Though sexual orientation may not be a suspect or quasi-suspect class, the Court finds that constitutional disparate treatment claims alleging sexual orientation discrimination by a public employer at least garner the bare minimum of rational basis review.

Pundits are lauding this decision as groundbreaking. In reality, the court refused to lift sexual orientation to special status as a suspect or quasi-suspect—such as race or sex. Instead, it simply requires public employers to treat all of its employees on equal footing. As a result, it will remain more difficult for public employees to prove sexual orientation discrimination than race or sex discrimination. Nevertheless, this case is a step in the right direct in recognizing some degree of protection for sexual orientation.

There are two more important points to make about this case:

1. This decision only affects public employees. It has no impact on private employees, who still must proceed under Title VII (which does provide some limited protections for sexual orientation based on gender stereotypes).
2. Hutchinson still most prove that her employer treated her differently because of her sexual orientation. This decision merely gives her the opportunity to try to prove the unlawfulness of her termination. Rest assured that the 6th Circuit (and, potentially) the Supreme Court will have the opportunity to weigh in on this charged issue.

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

Are 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.