How do other cultures handle HR?

Monsters, Inc., holds a special place in my heart. It was the first movie my wife and I saw together. As an employment lawyer, then, the following sign at the Mike & Sully meet and greet at Disney’s Hollywood Studios struck exactly the right note.

Interestingly, the last bullet point shows that even Monstropolis sees the importance of covering social media in workplace policies. I’m not sure when Disney crafted this sign, but I wonder if it’s one of the earliest examples of a social media 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.

Best of: Unstable employees, direct threats, and the ADA

http://www.ohioemployerlawblog.com/2011/01/unstable-employees-direct-threats-and.html

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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.

Best of: Ohio just became a friendlier state for age discrimination plaintiffs

http://www.ohioemployerlawblog.com/2011/01/ohio-just-became-friendlier-state-for.html

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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.

Best of: The worst feeling ever, and importance of candor

http://www.ohioemployerlawblog.com/2010/08/worst-feeling-ever-and-importance-of.html

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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.

Best of: Challenging non-competition agreements

http://www.ohioemployerlawblog.com/2010/08/do-you-know-challenging-non-competition.html

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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.

Your location is not the only thing an iPhone might be tracking—DOL releases wage and hour app for employees

I know I’m supposed to be on vacation, but this news is simply too amazing not to report. The Department of Labor has  launched an iPhone app to help employees track their hours worked. From the DOL’s press release:

The U.S. Department of Labor today announced the launch of its first application for smartphones, a timesheet to help employees independently track the hours they work and determine the wages they are owed. Available in English and Spanish, users conveniently can track regular work hours, break time and any overtime hours for one or more employers. Glossary, contact information and materials about wage laws are easily accessible through links to the Web pages of the department's Wage and Hour Division.

Additionally, through the app, users will be able to add comments on any information related to their work hours; view a summary of work hours in a daily, weekly and monthly format; and email the summary of work hours and gross pay as an attachment.

This new technology is significant because, instead of relying on their employers' records, workers now can keep their own records. This information could prove invaluable during a Wage and Hour Division investigation when an employer has failed to maintain accurate employment records.

Android and BlackBerry versions may be in the offing, as well as updates to track other wage and hour issues, such as tips, commissions, bonuses, deductions, holiday pay, pay for weekends, shift differentials, and pay for regular days of rest.

The cure for the potential problems caused by this app would be instituting a ban on mobile devices in the workplace. Given how aggressive the NLRB has gotten with its definition of protected, concerted activity, however, I am concerned that the NLRB might consider such a policy a violation of the NLRA as a limitation on employees’ ability to complain about terms and conditions of employment.

I cannot overstate the significance of this story. The DOL is getting more and more aggressive in its willingness to help employees prosecute wage and hour violations. If you do not know whether your wage and hour practices pass muster under the Fair Labor Standards Act, you are sitting on a bomb waiting to detonate. And, the DOL continues to provide employees with the match to light the fuse.

If you own an iPhone and want to check out the app for yourself, it is available for free from iTunes.

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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.

Best of: Why employees sue

http://www.ohioemployerlawblog.com/2010/07/why-employees-sue.html

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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 #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.