The most important thing you need to know about the ADAAA’s regulations (which take hold today)

Today, the final regulations implementing the Americans with Disabilities Act Amendments Act take effect. One of the most important changes the regulations make is to the definition of “substantially limits.” The regulations draw no hard lines defining when a physical or mental condition substantially limit a major life activity (and therefore crosses the line to become a legally-protected “disability”). Instead, the regulations provide nine “rules of construction” to guide this inquiry. The HR Daily Advisor provides a nice summary of these rules (part one and part two).

In reality, though, one can summarize these nine rules into one general concept. While the regulations make clear that “not every impairment will constitute a disability,” because of the ADAAA’s expansive definition of disability, most will. Therefore:

The primary object of attention in cases brought under the ADA should be whether covered entities have complied with their obligations and whether discrimination has occurred, not whether an individual’s impairment substantially limits a major life activity. Accordingly, the threshold issue of whether an impairment ‘‘substantially limits’’ a major life activity should not demand extensive analysis.

(If you’re counting, this is the regulations’ third rule of construction).

In other words, employers should give up hope that they will be able to prove that an employee’s medical condition does not qualify as a disability. Instead, employers should focus their ADA compliance efforts on the two issues that now matter in these cases: avoiding discrimination and providing reasonable accommodations.

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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 appellate court slashes state’s largest discrimination verdict by more than 75%

It has been almost two years since a Cuyahoga County jury handed down what remains the state’s largest single-plaintiff employment verdict: $46.6 million ($3.5 million in compensatory damages and an astounding $43.1 million in punitive damages). As is often the case, however, what the jury gave, the court of appeals took away (at least in part).

In Luri v. Republic Services (5/19/2011) [pdf], the appellate court concluded that employment discrimination claims are subject to Ohio’s damages caps in tort actions. In such actions, punitive damages are capped at two-times the compensatory award. Therefore, the trial court should have reduced the punitive award to a maximum of $7 million. This decision likely reduces the verdict from $46.6 million to a still-robust $10.5 million.

This case is significant for two reasons:

1. Ohio’s most recent foray into tort reform (effective since 2005) is vague on whether it applies to discrimination lawsuits. The Luri case joins the small list of cases to apply these tort reforms to discrimination claims. These reforms not only include the caps on punitive damages, but also the right to automatically bifurcate the issues of compensatory and punitive damages during covered jury trials. For this reason, this decision marks a significant victory for Ohio’s employers. I’ll have more on what these tort reform provisions mean tomorrow.

2. There are many opportunities after a plaintiff’s verdict for an employer to alter—or eliminate—the number that appears on a final judgment. Jury verdicts are followed by post-trial motions, which are then followed by appeals. While a jury verdict is often viewed as the final battle in a case, it rarely ends the war. 

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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 #177 (the “I’ll have what she’s having” edition)

Brazil is famous for lots of things: Pelé, Carnival, the Christ the Redeemer statue, and, apparently, laws that require employers to accommodate female employees’ masturbatory habits. From Above the Law, quoting Going Concern:

Ana Catarian Bezerra is a 36-year-old Brazilian woman who suffers from a chemical imbalance that triggers severe anxiety and hypersexuality. Ana, an accountant by day, began to have problems at work because the only way to relieve said anxiety is by masturbating. A lot. Now, after winning a court battle and seeking professional medical help, Ana is allowed to masturbate and watch porn—using her work’s computer, no less—legally.

Whether or not this story is real or a hoax, Eric Meyer shares his thoughts on how the ADA would apply to such an employee, at The Employer Handbook.

Here’s the rest of what I read this week (and last week):

Discrimination

• Court issues first Texas ruling on the ADA Amendments Act of 2008 and EEOC final regulations and guidance – from Mike Maslanka’s Work Matters
• EEOC Files Suit Against Starbucks for Firing Dwarf Barista – from Philip Miles’s Lawffice Space
• Nine Signs of Age Discrimination – from Screw You Guys, I’m Going Home
• Manager promised too much, contributing to $2.6M court verdict – from HR Cafe
• Rigid Leave Policies—A Formula for Liability – from Labor & Employment Law Perspectives
• 10 Things You May Not Know About Adverse Impact – from The Proactive Employer Blog
• Defense Fees Awarded In Another Failed EEOC Case – from Workplace Class Action Litigation
• Walmart Settles EEOC Latinos Harassment Suit – from Alabama HR Law

Social Media & Workplace Technology

• Dogging your boss on Facebook – from CareerDiva, Eve Tahmincioglu
• Four Ways To Do a Social Media Policy That’s Simple, Smart, and Right – from TLNT
• UFC’s Social Networking Policy - Something All Employers Should Consider – from California Employment Law Report
• What Happens in Vegas Doesn’t Stay in Vegas: Best Practices For Using Social Media in The Recruiting Process – from Washington Workplace Law
• Should Your Social-Media Policy Address Off-Duty Conduct? – from Molly DiBianca’s Delaware Employment Law Blog
• Blog Wars: Employer Controls and Employee Rights Regarding Personal Blogging – from The L•E•Jer
• Using Facebook at Work – Employer’s Justification for Firing Does Not Pass Straight Face Test – from Employment Law 101 Blog
• Need Info? How To Subpoena Social Media – from Advocate’s Studio
• Social Media Activity In The Workplace And The Computer Fraud And Abuse Act – from Social Media Law Update
• Managing Employees’ Use of Personal SmartPhones and Tablets for Work – from Digital Workplace Blog
• Ten Ways General Counsel Can Avoid the Cover of the Wall Street Journal – from Ride The Lightning

HR and Employee Relations

• Top Findings from Background Screening Trends Survey – from Nick Fishman at employeescreenIQ Blog
• Background Checks and the Fair Credit Reporting Act – from Michael Haberman’s Omega HR Solutions
• Is the Resume Dead? – from Evil HR Lady, Suzanne Lucas
• The Workplace Whodunit: Navigating a Culture of Blame – from Francesca Donner at The Wall Street Journal

Wage & Hour

• An Apple A Day May Not Keep DOL Away – from Stephanie Thomas at Compensation Cafe
• Second Circuit Revisits Standards for “Working” Time vs. Off-the-Clock in Reviving Wage & Hour Class Action – from Daniel Schwartz’s Connecticut Employment Law Blog
• Healthy Families Act Reintroduced in Both Chambers – from Washington D.C. Employment Law Update

Labor Relations

• Members of Congress Issue Spanking to NLRB Acting General Counsel – from Labor Relations Institute
• Senator Alexander (R-TN) and 33 Republican Co-Sponsors Introduce Bill to Clarify Interplay Between NLRA and State Right to Work Laws – from Seth Borden’s Labor Relations Today
• “NLRB’s Boeing attack is a strike against economic reality” – from Walter Olson’s Overlawyered
• Senate Ups the Ante In “Poker Game” with NLRB Over Boeing Complaint – from Wyatt Employment Law Report
• Tenth Circuit follows Gardner-Denver, finding that 14 Penn Plaza does not trump the plaintiff – from Fitzpatrick on Employment Law

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

NLRB issues another complaint over a Facebook termination

Like I said yesterday in discussing the NLRB’s position on social media terminations, “The policy direction of the NLRB is a lot like the weather in Florida—if you don’t like it, wait 5 minutes and it will probably change.” Consider the following, courtesy of the NLRB’s website:

The National Labor Relations Board has issued a complaint alleging that Hispanics United of Buffalo, a nonprofit that provides social services to low-income clients, unlawfully discharged five employees after they took to Facebook to criticize working conditions, including work load and staffing issues….

The case involves an employee who, in advance of a meeting with management about working conditions, posted to her Facebook page a coworker’s allegation that employees did not do enough to help the organization’s clients.  The initial post generated responses from other employees who defended their job performance and criticized working conditions, including work load and staffing issues. After learning of the posts, Hispanics United discharged the five employees who participated, claiming that their comments constituted harassment of the employee originally mentioned in the post.

Unlike the case I discussed yesterday (in which the employer received a pass for terminating a tweeting employee for insubordination), the NLRB takes issue with these terminations because they “involved a conversation among coworkers about their terms and conditions of employment, including their job performance and staffing levels.”

This case is set for trial in 5 weeks. Like the American Medical Response case before it, this case could always settle. There is, however, hope on the horizon that employers will finally receive the guidance they crave on the handling of social media under the National Labor Relations Act. If the NLRB’s press release is any indication, however, employers should not hold out hope that the NLRB will give employers a pass on social media posts as protected concerted activity.

As the NLRB’s position on social media continues to evolve, keep watching this space for updates.

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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 you better off without a social media policy?

A few months ago—following an attack by the NLRB by what it perceived as an overly broad social media policy—pundits were screaming that the sky was falling on these new-breed policies. Now, the NLRB is starting to provide some clarity on the misuse of social media by employees.

After the Arizona Daily Star fired a reporter based on the content of his tweets, the employee filed an unfair labor practice charge with the NLRB. While the company lacked a social media policy, it did warn the reporter about his tweeting; it ultimately terminated him for ignoring those warnings.

The NLRB—in an Advice Memorandum from the its General Counsel [pdf]—concluded that the termination did not violate federal labor laws:

In this case, even if the Employer implemented an unlawful rule, the Charging Party was terminated for posting inappropriate and unprofessional tweets, after having been warned not to do so, i.e. for engaging in misconduct….

We further conclude that the Employer did not implement an unlawful rule. In this regard, we acknowledge that, in warning the Charging Party to cease his inappropriate tweets, and then discharging him for continuing to post inappropriate tweets, the Employer made statements that could be interpreted to prohibit activities protected by Section 7.

However, those statements did not constitute orally promulgated, overbroad “rules.” Thus, the statements were made solely to the Charging Party in the context of discipline, and in response to specific inappropriate conduct, and were not communicated to any other employees or proclaimed as new “rules.” … [I]t would not effectuate the purposes and policies of the Act to issue a complaint where the statements were directed to a single employee who was lawfully discharged.

In other words, because the employer lacked a policy, it directed its social media proscriptions only to the fired employee, and the employee was fired for ignoring warnings, the termination did not implicate the employee’s right to engage in protected concerted activity. One can speculate that if the employer had a social media policy, this employer might have had the same potential overbreadth problem as American Medical Response.

This guidance from the NLRB begs the following question: are you better off without a social media policy, instead treating employees’ (mis)use of social media on an ad hoc basis? I think not. Despite the NLRB’s current hostility towards social media, employees need direction. They need to understand the set of rules under which they are playing, so that an employer can apply a termination or other needed corrective action fairly and without surprise.

It is possible to draft a social media policy that provides sufficient guidance to employees, protects employers from rogue conduct, and passes muster under the NLRB’s current iteration. Besides, the policy direction of the NLRB is a lot like the weather in Florida—if you don’t like it, wait 5 minutes and it will probably change.

[Hat tip: Employer Law Report]

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

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.