Ohio Supreme Court to consider statute of limitations in workers comp retaliation cases

Ohio Revised Code section 4123.90 prohibits employers from taking any adverse action against an employee who files a claim, or institutes, pursues, or testifies in any proceeding under the workers’ compensation act. This statute is unique in that is has a two-stage statute of limitations:

1. Within 90 days “immediately following” the adverse action, the employer must receive written notice of a claimed violation from the employee; and
2. The lawsuit must be filed within 180 days “immediately following” the adverse action.

Both steps are required, and an employee’s failure to meet either deadline is fatal to a retaliation claim.

In Lawrence v. City of Youngstown (2/25/11), the Mahoning County Court of Appeals took up the issue of the meaning of “immediately following” in regards to the 90 and 180 day requirements. The court recognized an even split among Ohio’s appellate courts. Half of the courts that have considered the issue concluded that the 90 and 180 day requirements do not begin to run until the employee receives notice of the termination or other adverse action. The other half concluded that the effective date of the termination or other adverse action controls.

The Lawrence court sided with the latter, concluding:

This language clearly references the date of discharge, not notice of discharge. If the General Assembly had intended the time periods to begin to run upon notice of discharge, the statute could have easily been written to indicate as such. Accordingly, we find that the time limits begin to run on the effective date of discharge.

Last week, the Ohio Supreme Court agreed to hear this case [pdf] and resolve the split. Ohio employers should expect clarity on this important issue in the next 12 – 15 months.

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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.

“He grabbed her, threw her to the floor, pulled up her shirt, masturbated and ejaculated on her” = $95 million (wow)

The acts of sexual harassment alleged by Ashley Alford against her supervisor, Richard Moore, in Alford v. Aaron Rents, Inc. are among most horrific I’ve ever encountered (taken from the court’s opinion denying the employer’s motion for summary judgment):

• Shortly after Alford began working at Aarons, beginning in November 2005, Moore began intentionally and inappropriately touching her.
• Moore called Alford degrading pet names, such as “Trixie” and “Trix.”
• Moore gave Alford unwanted gifts for which he demanded “sucky-sucky.”
• Moore grabbed Alford by her ponytail, unzipped his pants, pulled her head back and hit her in the head with his penis, twice.
• Moore grabbed Alford, threw her to the floor, pulled up her shirt, masturbated, and ejaculated on her.

As reprehensible as these allegations are, what is perhaps more stunning is that Alford’s employer ignored her complaints for more than a year, and only took action after she involved the police.

Last week, a jury added up all of these facts and returned with one of the largest verdicts ever in a single-plaintiff harassment case—$95 million. The St. Louis Post-Dispatch quoted a representative of the company, who called the verdict “the work of a ‘classic runaway jury.’” I agree. The conduct proven at trial was horrendous, but no single-plaintiff employment case is worth $95 million. 

Nevertheless, this verdict underscores the importance of prompt and thorough investigations into complaints of harassment by employees. The jury did not subject the employer to this verdict because of the acts of a rogue supervisor, but because the company did not do anything about him when the plaintiff complained.

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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 #180 (the “pixie dust” edition)

Last month, my family vacationed at Disney World. While the trip was planned last fall, it was a much needed (almost) week away after our ordeal in February. One of our first stops was to meet Buzz Lightyear at the Magic Kingdom. I’m sure lots of 3-year-old boys idolize Buzz, but I’m not sure anyone loves Buzz as much as my son does.

I mentioned to the PhotoPass photographer to take as many pictures as he could, explaining that Donovan had spent 3 weeks in the hospital, how much Buzz means to him, and how much him meeting Buzz meant to us. A Cast Member overheard my story, pulled me aside, and gave me a voucher for a free 8x10 picture. That voucher probably cost Disney 50 cents, yet it proved invaluable to my family that someone thought to do something nice for us.

Let this story be a lesson for employers—the little things do matter. Taking the time to spread some “pixie dust” on your workers once in a while should pay exponential dividends.

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

Weinergate

• What if you were Anthony Weiner’s boss? – from Rob Radcliff’s Smooth Transitions
• Weiner and the Same Old Social Media Lessons – from Philip Miles’s Lawffice Space
• Your Company Firewalls Are Meaningless to Your Employees. Time for a Plan B. – from Daniel Schwartz’s Connecticut Employment Law Blog
• How to Recover from a Blunder – from Harvard Business Review
• Dirty Pictures And The Internet: A Guide for Dummies – from Kashmir Hill’s The Not-So Private Parts
• Social Media Crisis Management, Weinergate, Politics, Football, and the Law – from Shear on Social Media Law
• Lessons from Weinergate – from Manpower Employment Blawg
• Women shouldn’t blame Weiner from Eve Tahmincioglu’s CareerDiva
• Another Day, Another Person Ruins Their Career On Twitter – from Chris Penttila’s Workplace Diva
• Congressional Tweet-mageddon After Weiner Scandal – from AllThingsD

(Non-Weiner-related) Social Media & Workplace Technology

• Social Recruiting a Growing Hotbed for Discrimination Claims? – from Newton Software Blog
• While employers screen job applicants on social media, lawyers assess the risk – from AllBusiness
• Electronic “Redactions” Not Always Effective: Greater Caution In Dealing With Sensitive Materials In Trade Secret Cases Necessary – from Trading Secrets
• Employee Rights and Social Media – A Summary of NLRB Enforcement Activity – from Augmented Legality

Discrimination

• The Age Discrimination in Employment Act (ADEA): Not Your Standard Discrimination Law – from Michael Haberman’s Omega HR Solutions
• Supreme Court limits an employer's ability to recoup attorney’s fees – from Eric Meyer’s The Employer Handbook Blog
• Anti-Gay Harassment Claims Need to Be Investigated – from Labor & Employment Law Perspectives
• Federal Court Reels In EEOC’s Fishing Expedition – from Employer Law Report
• Summer Jobs, Sexual Harassment – from Nolo’s Employment Law Blog
• The unemployed: a new protected class? – from John Holmquist’s Michigan Employment Law Connection
• “Acrophobic bridge worker protected by ADA” – from Walter Olson’s Overlawyered
• EEOC proposes records rule on Genetic Information Nondiscrimination Act – from Judy Greenwald at Business Insurance
• 5 signs that your sexual harassment case may be a dog – from Employment and Labor Insider
• Sixth Circuit Grants Rehearing En Banc in the Lewis Case Involving Discrimination Claims Under the ADA – from Sixth Circuit Appellate Blog

HR & Employee Relations

• America’s Pastime Part II: Outsourcing for Talent – from Rob Schwartz’s Fairness Matters
• State of Ohio Moves to Ban Credit Reports – from Nick Fishman at the employeescreenIQ Blog
• Employment Background Checks: Legal Considerations – from Small Business Support
• Should You Get Naked With Your Boss – from Evil HR Lady, Suzanne Lucas
• Point/Counterpoint - Should You Automatically Pay Severance to Anyone You Fire? – from Fistful of Talent
• Eight Threats and Traps for HR in Today’s Legal Environment – from HR Daily Advisor
• Modern Vacations, or Why You Never Really Get Away From Work Anymore – from TLNT
• How to Steal Employees – from Portfolio.com

Wage & Hour

• Are the FLSA’s Enterprise Coverage Requirements Outdated in Today’s Economy? – from Overtime Law Blog
• Juries Hand Employers Class Action Wage and Hour Victories – from Employment Class Action Blog
• FMLA, COBRA, ADA, EEOC-Not Necessarily In That Order – from Work Blawg
• Policy Limits on Vacation Travel During FMLA Leave Upheld – from The FMLA 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 recognizes public policy tort for workers compensation retaliation in limited circumstances

Ohio has a specific statute against workers’ compensation retaliation—R.C. 4123.90. It prohibits an employer from retaliating against an employee who files a claim, or institutes, pursues, or testifies in any proceeding under the workers’ compensation act.

In Bickers v. W. & S. Life Ins. Co. (2007), the Ohio Supreme Court concluded that an employee who is fired while receiving workers’ compensation benefits is limited to brining a retaliation claim under the statute, and cannot pursue a common law wrongful discharge cause of action. This distinction is significant, because the workers’ compensation retaliation statute has limited remedies—reinstatement, back pay, and reasonable attorneys fees. The remedies is a common law wrongful discharge claim, however, are unregulated, and include compensatory and punitive damages.

In Sutton v. Tomco Machining, Inc. (6/9/11) [pdf], the Ohio Supreme Court considered whether R.C. 4123.90 also precludes an injured employee who suffers retaliation before filing a workers’ compensation claim from filing a common law wrongful discharge claim.

The facts of the case are pretty remarkable. Within an hour of DeWayne Sutton’s report of a workplace back injury to Tomco’s president, and before he could file a workers’ compensation claim for the injury, the company fired him. The employer argued that Sutton did not have a remedy. It correctly argued that R.C. 4123.90 did not provide a remedy because he had not filed a workers’ compensation claim. It also argued that Bickers precluded the common law wrongful discharge claim.

The Court concluded that because Sutton did not have a remedy available under the statute, he could pursue his common law wrongful discharge claim:

We find that the General Assembly did not intend to leave a gap in protection during which time employers are permitted to retaliate against employees who might pursue workers’ compensation benefits…. The General Assembly certainly did not intend to create the footrace …, which would effectively authorize retaliatory employment action and render any purported protection under the antiretaliation provision wholly illusory. Therefore, it is not the public policy of Ohio to permit retaliatory employment action against injured employees in the time between injury and filing, instituting, or pursuing workers’ compensation claims.

The Court, however, did not permit Sutton to seek the full panoply of tort remedies. Instead, it balanced the limited remedies of the Workers’ Compensation Act against right of employees to be free from retaliation:

The compromise established by the General Assembly must govern the relief available to employees, like Sutton, who suffer retaliatory employment action after an injury and before they have filed, instituted, or pursued a workers’ compensation claim, just as it governs the relief for employees who suffer retaliatory employment action after they have filed, instituted, or pursued a workers’ compensation claim. Accordingly, we hold that Ohio’s public policy as established by the legislature is to limit remedies for retaliatory employment actions against injured employees to those listed in R.C. 4123.90.

This case strikes the right balance. Even the most ardent employer-side advocate would have a hard time arguing for a loophole that would preclude any remedy for an employee retaliated against. By limiting the remedies to those set forth in the statute, the Court is protecting the balance created by the workers’ compensation system into which employers are required to buy.

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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 and employers differ on the use of neutral maximum leave of absence policies

As I reported earlier this week, yesterday the EEOC held a public meeting on the use of leave as a reasonable accommodation. Opinions differed sharply on whether an employer can satisfy its obligations under the ADA by implementing a neutral leave of absence policy that caps a maximum allowable leave (for example, a policy that says, “Employees who do not return to work following a maximum of six months leave will be presumed to have resigned,” or “Employees will be entitled to a maximum of six months of unpaid medical leave in appropriate circumstances, and thereafter the company cannot hold the employee’s position open or guarantee a position to which the employee can return”).

John Hendrickson, an EEOC Regional Attorney who litigated this issue in the high-profile EEOC v. Sears Roebuck & Co. case (which resulted in a $6.2 million settlement), offered the following five observations on the EEOC’s view of these policies:

1. An inflexible period of disability leave, even if substantial, is not sufficient to satisfy an employer’s duty of reasonable accommodation.
2. The appropriate length of leave under the ADA requires an individualized analysis—even when the employer has a generous fixed leave policy.
3. Separating leave administration—like the administration of worker’s compensation benefits or disability benefits—from ADA administration is risky for employers.
4. Clear lines of communication regarding reasonable accommodations are critical not only with employees on leave but also with their health care providers, supervisors and managers.
5. The Commission occupies a unique role in litigating these cases.

Management-side attorney Ellen McLaughlin argued the employer’s position:

One way employers attempt to control or manage the impact of employee leaves of absence on their business is to institute a neutral maximum leave of absence policy that sets a maximum duration for which an employee can be away from work…. The intent of these neutral leave programs is to provide employers with some level of control over their ability to manage their headcount and business operations. Employers know in advance how much time off an employee may take, and can track when an employee approaches that maximum in order to provide it an opportunity to begin planning coverage/replacement options sooner…. 

The case law is extremely undeveloped on the maximum leave issue, but what exists establishes that a universally applied maximum leave policy is not, per se, violative of the ADA…. In the midst of this confusion, the EEOC has begun aggressively litigating against employers with neutral maximum leave policies.

I echo Ellen’s sentiments that neutral leave policies provide employers the necessary flexibility to run their businesses in the face of leaves of uncertain duration. The EEOC needs to better consider the needs of the business community and provide greater guidance on this issue.

Employers, however, need to be practical and tread very lightly around these issues until the EEOC softens its position. The agency is aggressively pursuing businesses that enforce these neutral leave policies to the detriment of disabled employees. Unless you want to end up in the EEOC’s crosshairs, I recommend the following:

1. Avoid leave policies that provide a per se maximum amount of leave, after which time an employee loses his or her job.
2. Engage in the interactive process with an employee who needs an extended leave of absence, which includes the gathering of sufficient medical information and a definitive return to work date documented by a medical professional.
3. Involve your employment counsel to aid in the process of deciding when an extended leave crosses the line from a reasonable accommodation to an undue hardship.
4. Open your workplace to disabled employees to demonstrate to the EEOC, if necessary, that you take your ADA obligations seriously.
5. You should document all costs associated with any extended unpaid leaves (modified schedules, added overtime, temporary hires, lost productivity, etc.) to help make your undue hardship argument, if needed.

Remembering “A, E, I, O, and You” will help you avoid the defense of a costly disability discrimination lawsuit.

A love letter to Connecticut (or, a modest proposal to bring jobs to Ohio)

Dear Connecticut,

I read on the Connecticut Employment Law Blog that your state legislature passed its controversial paid sick leave bill. Your Governor supports the measure and is expected to sign it. Beginning January 1, 2012, the law will mandate that many of your state’s employers with 50 or more employees provide 40 hours per year of paid sick leave to most full-time employees.

A few years ago, we Ohioans expected to vote on a similar measure via a statewide referendum. Our then-Governor (a Democrat) recognized the detriment such a measure would pose to our state’s ability to attract and retain the businesses we so sorely need. He struck a deal with the sponsoring labor unions pulling the Health Families Act from the ballot. Our state’s economy still isn’t great, but it’s better than it would have been if the Act had passed three years ago.

Connecticut Republican Representative John Rigby shares the same concerns about your state’s ability to attract and retain businesses (as quoted on NPR.org), “They’re going to have to shed jobs…. They’re going to have to let people go. They’re going to have to make a decision about whether to open the next brew pub in Connecticut or in Massachusetts or Rhode Island—states that are considered more business-friendly than our state.” Adds Kia Murrell, assistant counsel for the Connecticut Business & Industry Assoc. (as quoted on MSNBC.com), “Today is the worst possible time to add one more thing…. It’s one more nail in the proverbial coffin.”

Connecticut, when your businesses are ready to flee to avoid this stifling mandate, we are happy to take them and the jobs they bring along.

Love,

 

Ohio, your (not quite) neighbor to the West

P.S.: Please help support a fellow labor & employment blogger, Daniel Schwartz, and click over to his Connecticut Employment Law Blog, which he re-launched yesterday with a brand new look and some cool new features.

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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.

Class actions: the smaller you are, the bigger the risk

At some point in the next several weeks, the Supreme Court will deliver its long-awaited opinion in Dukes v. Wal-Mart. Recall that Dukes will decide the propriety of the class certification of the largest sex-discrimination case ever (1.5 million employees seeking billions in damages).

As we wait for the Dukes decision, plaintiffs continue to file large discrimination class actions. The latest was filed against accounting giant KPMG. From Law360:

A former senior manager at KPMG LLP filed a putative class action Thursday in New York that claims the accounting giant shuts out women and working mothers from its upper ranks, seeking $350 million in damages.

Plaintiff Donna Kassman argues that KPMG elbows women out from the partnership track and frowns on those who use maternity leave or flexible schedule benefits, capping the number of women in management positions at well below industry standards.

Your workplace may not large enough and your employees may not earn enough for you ever to be exposed to $350 million in risk. Risk, however, is proportional to size. KMPG reported $20.6 billion in revenue in 2010. $350 million is a mere 1.7% of its annual revenue. Consider, however, that the average retail and service small business has $6,000,000 in annual revenue. You better believe that a class action would place your small business at risk to lose more than $101,400 (or 1.7%). In other words, the smaller your business, the more at risk you are from potential class actions.

While $350,000,000 is an astronomical number, it is a number that a $20 billion business can absorb. On the other hand, a class action against a small business is often “bet the company” litigation. A $1,000,000 judgment against a $6,000,000 company could easily put that company out of business.

As we wait for the Supreme Court’s Dukes opinion, consider what proactive steps you can take in your business to help insulate you from potential class actions that could put the continued viability your business in jeopardy.

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

EEOC to consider the use of leave as a reasonable accommodation

I have previously discussed how the ADA may require that employers provide unpaid leaves of absence to disabled employees of more than 12 weeks:

• Has the ADA swallowed the FMLA for employee medical leaves?
• ADA may require leaves of absence beyond FMLA mandates

Later this week, the EEOC will hold a public meeting to discuss this very issue. According to the EEOC’s press release:

The U.S. Equal Employment Opportunity Commission (EEOC) will hold a public meeting on Wednesday, June 8, at 9:30 a.m. (Eastern Time), … to examine the use of leave as a reasonable accommodation…. The Commission will hear from invited panelists on the appropriate use of disability leave as a reasonable accommodation and on complying with relevant regulations

Considering that the Agency’s agenda includes a discussion of “how to comply with the law and appropriately permit leave to employees,” I do not expect to hear any paradigm-shifting revelations. Instead, this meeting should merely highlight for employers the importance of considering an unpaid leave of absence as a reasonable accommodation, and the illegality of inflexible and hard-capped leave of absence policies.

Nevertheless, the EEOC is using these public meetings to highlight regulatory and enforcement issues it is prioritizing (e.g., the use of employment status and credit history as hiring criteria, and the plight of older workers). Because the EEOC appears to be targeting leaves of absence for heightened enforcement, employers should pay special attention to this issue. I will have a full summary of the EEOC’s public meeting later this week.

[Hat tip: Workplace Prof 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.

WIRTW #179 (the “but, I have a black friend” edition)

At Salon.com this week, Teresa Cotsirilos asks, “Is racism on the way out?” According to a website I discovered (thanks to @EPetersonSHRM), the answer is clearly “no.” I'm not RACIST, but... posts examples of just how racist people really are, by searching public Facebook posts for the phrase “not racist but”. Some examples, you ask?

–or–

The real question is whether we should be surprised that people this ignorant don’t have enough sense to lock down the privacy settings on their Facebook accounts.

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

Discrimination

• Think Sexism Doesn’t Exist? Read This – from Screw You Guys, I’m Going Home
• Fired Cocktail Waitresses Sue, Claim Casino Wanted Sexier and Younger Workers – from ABA Journal Daily News
• Bridge Worker With Fear of Heights Gets ADA Trial – from Joe’s HR and Benefits Blog
• Federal Court Concludes EEOC Subpoena Is Improper Fishing Expedition – from New York Labor and Employment Law Report
• How To Document a Hostile Work Environment – from UndercoverLawyer
• Son May Bring 3rd Party Retaliation Claim – from Atlanta Employment Lawyer Blog
• Timing Is (Almost) Everything: The Adverse Employment Action Following Knowledge Of Disability – from New York Labor and Employment Law Report
• Brownie Defense Fails in Workplace Drug Testing Case – from Minnesota Labor & Employment Law Blog

Social Media & Workplace Technology

• Social Media Distractions Are Costing Businesses Major Money – from Mashable
• The Tide Seems to Have Turned For Social Media on the Job – from TLNT
• Facebook closing in on 700 million friends – from Boy Genius Report
• Why employees should think before they tweet – from The Globe and Mail
• Two Questions Employers Should Ask Before Implementing A Social Media Policy – from Michigan Employment Law Advisor
• Addressing teacher use of social media—on and off the clock – from Eric Meyer’s The Employer Handbook
• The Perfect Media Storm That Is “Weinergate” – from The Not-So Private Parts

Labor Relations

• NLRB Rules Rat Display at Secondary Employer Premises is Lawful – from Seth Borden’s Labor Relations Today
• Fire For Facebook “Concerted Activity”, Risk Getting a Union – from Michael Haberman’s Omega HR Solutions
• Placement of Production Line in Right to Work State Alleged to Violate NLRA – from Labor & Employment Law Perspectives
• More reaction to the NLRB’s overreach – from Marathon Pundit

Employee Competition & Trade Secrets

• Expedited Discovery In Non-Compete Cases Is Not Guaranteed – from Legal Developments In Non-Competition Agreements
• Misclassification of Employee May Impact Employer’s Ability to Enforce Non-Compete Agreement – from Delaware Non-Compete Law Blog
• Third Circuit: Breach of Independent Contractor Agreement Provides Basis to Deny Request for Injunctive Relief – from Trade Secrets and Noncompete Blog
• Colorado Supreme Court Says Continued At-Will Employment Is Sufficient Consideration For Noncompetition Agreement – from Colorado Employer’s Law Blog

Wage & Hour

• Paid Time Off—How’s It Working? Let’s Find Out – from HR Daily Advisor
• Paid Sick Days: Business killer or worker boon? – from CareerDiva Eve Tahmincioglu
• Employee Who Refuses to Provide Sufficient Medical Certification under FMLA is Lawfully Terminated – from FMLA Insights
• Exempt Managers Spending Major Time on Nonmanagerial Duties May Not Affect Exempt Status – from Overtime Advisor
• SDNY: Outside Sales Exemption Applies to Registered Representatives – from Wage & Hour Counsel

Background Screening

• County to Background Check Ice Cream Truck Drivers – from employeescreenIQ Blog
• 3 Myths About Employing People With Criminal Histories – from fyiscreening

In light of this week’s theme, I’ll leave everyone with a glimmer of hope, courtesy of a picture taken by my daughter on her new digital camera.

 

At the age of 5, she has not yet learned to see race; I hope she never does.

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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 your social media policy cover photographs and video?

Yesterday, I discussed the importance of having a policy covering workplace visual recording by employees. Employees snapping cell-phone photos or shooting video is not your only risk. If your organization has a social media presence, and will use this media to post and share photographs and videos of employees (at organizational events, etc.), it is best to let employees know that their photographs or likenesses may appear from time to time on these websites. 

There are two ways to accomplish this goal: an opt-in (requiring employees affirmatively to sign a document granting permission) or an opt-out (advising that any employees who does not want his or her likeness used must inform the company). From a practical standpoint, the opt-out is administratively easier. It also provides the same level of protection, provided that the policy is clearly and uniformly disseminated to all affected employees.

This issue is one of many that will be discussed in the upcoming HR and Social Media: Practical and Legal Guidance.

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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.

Court upholds termination of employee caught using cell phone camera at work

As technology becomes smaller and more accessible, employers will be faced with new problems. For example, one would be hard-pressed to buy a mobile phone that lacks a camera. How, then, should employers address their almost increasing prevalence in the workplace? The answer is to have a policy and to consistently enforce it.

If you need convincing, consider the recent Ohio appellate decision in Strodtbeck v. Lake Hosp. Sys., Inc. (5/13/2011), in which a hospital fired an emergency department technician after he was caught using his cell phone’s camera to photograph a patient. The employee claimed he took the picture to document what he believed was the patient’s mistreatment, which he wanted to bring to the hospital’s attention. The hospital argued that it was against hospital policy for employees to use their own cameras in the workplace. The Ohio appellate court sided with the employer, concluding that there was no legal basis for a wrongful discharge claim and affirming the dismissal of the case.

After reading the Strodtbeck case, you might be tempted to say to yourself, “We’re not a hospital, so these issues don’t affect us.” Think again. There are lots of scenarios that can impact businesses. For example, cell phone cameras can be used to:

• Copy trade secrets or other confidential information.
• Document harassment or discrimination.
• Harass co-workers with lewd or offensive photos.
• Record safety issues.
• Distract employees from the performance of their jobs.

Moreover, the ability of these mobile devices to readily connect with social networks like Facebook or twitter increases the risks posed by these tiny cameras.

Your have two regulatory options:

1. An outright ban on mobile phones in the workplace.
2. A ban on the taking of photographs in the workplace.

Whichever your choice, you should also ensure that your social media policy addresses the posting of photographs, so that all of your bases are covered. Come back tomorrow for more discussion of how your social media policy can (and should) address photographs, video, and employee likenesses.

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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.

A tale of two transgressions, or; How Jim Tressel learned to start lying and lose his job

Employers forgive lots of employee transgressions. I routinely counsel clients that the decision between whether to discipline or terminate an employee often comes down to how valuable the employee is to the organization. The more talented an employee, the more likely an employer will be to forgive even a serious misstep (at least the first time). One sin, above all others, however, should rarely be overlooked—dishonesty.

Consider the following two examples.

On Sunday night I watched a rerun of Undercover Boss. The episode focused on the Chief Development Officer of Subway, a recovering alcoholic who, decades earlier, passed out at work in an alcohol-induced stupor. Instead of firing him, the company gave him a second chance. In the years since, he rose to become one of the company’s key executives.

Compare that story to the weekend’s big news story in Ohio—Jim Tressel’s resignation. He did not leave Ohio State in a cloud of disgrace because his players traded memorabilia for tattoos. Instead, his lies caused his downfall. Trust is the core of any relationship—including that between a boss and employee. Once that trust is eroded, the relationship is unsalvageable. All of the good Tressel did for Ohio State disappeared when he lied to his boss about what he knew and when he knew it.

I'll leave you, my readers, with a question. Can you think of any situation in which you’ve forgiven an employee you caught in a lie? I’d love to hear your thoughts, either via the comments below, my twitter, or my Facebook Page.

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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 #178 (the “…and I feel fine” edition)

When the world didn’t end last Saturday, I got curious. What could have possibly gone wrong? So, I did a little research. Here’s what I found.

The 2011 end times prediction is attributed to Christian radio host Harold Camping. According to Camping, Rapture and Judgment Day were to have taken place on May 21, 2011, with the end of the world occurring five months later. He previously predicted that the same would take place in 1994, and blamed its failure on a mathematical error.

How did Camping arrive at his 2011 prediction? He offers two different mathematical explanations (c/o Wikipedia’s 2011 end times prediction page).

Either:

Camping dates the Great Flood to 4990 BC. Taking the prediction in Genesis 7:4 (“Seven days from now I will send rain on the earth”) to be a prediction of the end of the world, and combining it with 2 Peter 3:8 (“With the Lord a day is like a thousand years, and a thousand years are like a day”), Camping concludes that the end of the world will occur in 2011, 7000 years from 4990 BC. Camping takes the 17th day of the second month mentioned in Genesis 7:11 to be May 21.

Or:

1. According to Camping, the number 5 equals “atonement”, the number 10 equals “completeness”, and the number 17 equals “heaven”.
2. Jesus is said to have hanged on the cross on April 1, 33 AD. There are 1,978 years between April 1, 33 AD and April 1, 2011.
3. 1,978 multiplied by 365.2422 days (the number of days in a solar year) equals 722,449.
4. There are 51 days between April 1 and May 21.
5. 51 plus 722,449 equals 722,500.
6. (5 × 10 × 17)² or (atonement × completeness × heaven)² also equals 722,500.

It’s hard to believe that such a certain prediction failed.

For his part, Camping now says that May 21 was a “spiritual” Judgment Day. The Rapture and the destruction of the world will instead both happen on October 21, 2011, a Friday that will coincide with WIRTW #199. If you subtract 178 (this week’s edition) from 199, you get 21, the date Camping predicts. Wow, this end of world stuff is easy.

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

Discrimination

• Court dismisses the age bias claims of a pistol-packin’ old cripple – from Eric Meyer’s The Employer Handbook Blog
• 9 signs that you’ll lose your age discrimination case – from Employment and Labor Insider
• “Ex-Colts cheerleader sues team over nude body-paint photos” – from Walter Olson’s Overlawyered
• Another EEOC Lawsuit Is Rejected – from Workplace Class Action Litigation
• Study: Whites say they are racism victims – from CBS News
• Racial and national-origin discrimination: Why it’s gotten REALLY tricky – from HR Cafe
• Is the LSAT Discriminatory? – from NY/CT Litigation Blog
• Important ADA Case on Working as a Major Life Activity, Regarded As, and Retaliation – from Workplace Prof Blog
• Perceived Disability: EEOC Wins Relief for Employee With Missing Fingers – from Joe’s HR and Benefits Blog
• Safe Harbors Emerge for Employers Under New GINA Regulations – from Labor & Employment Law Perspectives

Social Media & Workplace Technology

• George Orwell and Social Media – from Rob Radcliff’s Smooth Transitions
• Can An Employer Sue an Employee for On-Duty Facebook Use? – from Molly DiBianca’s Delaware Employment Law Blog
• Social Media: What Most Companies Don’t Know – from Harvard Business Review
• Over 24 Pending Lawsuits Involve Facebook Firings – from All Facebook
• Nobody Wants to be Made an Example of - Crafting Employer Policies to Avoid Liability for Social Media Use – from Digital Workplace Blog

Wage & Hour

• In Titillating Case, Court Compels Strip Club Dancers to Engage Individually ... in Arbitration – from Daniel Schwartz’s Connecticut Employment Law Blog
• The end of wage / hour class actions? – from Connecticut Employee Rights Blog
• Washington Redskins Cheerleaders: All work, (almost) no pay – from TBD
• Employee’s FMLA Claim Dismissed After Taking a Trip to Cancun – from FMLA Insights

Labor Relations

• NLRB Admits Boeing Complaint Applies To Every Business & State – from Townhall Conservative
• The NLRB takes its Internet battle to a non-unionized workplace – from Employment Law Matters

HR and Employee Relations

• Sex in the Workplace – from the Evil HR Lady, writing at BNET
• Arizona Immigration Law Valid According to Divided Supreme Court – from Michael Fox’s Jottings By An Employer’s Lawyer
• 3 Myths About Employing Individuals with Criminal Histories – from Stephanie Thomas’s The Proactive Employer Blog
• The New York Times Realizes That Sitting At Work Makes Us Fatter – from Workplace Diva
• Write a Better Job Description – from Attorney at Work

Until next week:

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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.

Ho-hum … another NLRB social media complaint?

The National Labor Relations Board is divided into 52 regional offices. This week, the Chicago Regional Office became the third to issue a complaint challenging an employer’s discipline of an employee for statements made using social media. This complaint joins the one issued by the New York Regional Office last week and the one issued by the Hartford Regional Office last year. At this rate, the NLRB will soon have the country blanketed.

The details come via the NLRB’s press release:

The National Labor Relations Board issued a complaint last Friday against Knauz BMW, a Chicago area BMW dealership, alleging unlawful termination of an employee for posting photos and comments on Facebook that were critical of the dealership.

The employee, a car salesman, and coworkers were unhappy with the quality of food and beverages at a dealership event promoting a new BMW model. Salesmen complained that their sales commissions could suffer as a result. Following the event, the salesman posted photos and commentary on his Facebook page critical that only hot dogs and bottled water were being offered to customers.  Other employees had access to the Facebook page.

The following week, the dealership’s management asked the salesman to remove the posts, and he immediately complied. Nevertheless, shortly after a meeting with managers on June 16, the employee was terminated for posting the images and comments.

While we can only speculate, it certainly seems like Washington has directed the regions to complaint these cases in an effort to find the right case to issue a sweeping decision regulating workplace social media. For now, the best course of action for employers is to make sure that their labor and employment counsel is vetting any discipline or termination involving social media to avoid ending up in the NLRB’s crosshairs.

For more on these issues, I suggest you read the thoughts of my fellow bloggers:

• Another Day, Another NLRB Complaint Over Facebook Firing – from Molly DiBianca’s Delaware Employment Law Blog
• Labor board issues its 2nd social-media-related complaint in 2 weeks – from Eric Meyer’s The Employer Handbook Blog
• Another Facebook Complaint from the NLRB – from Michigan Employment Law Connection
• NLRB Issues Yet Another Complaint, Press Release, For Facebook Firing – from Hawaii Labor and Employment Law
• Yet Another NLRB Facebook Case – from Philip Miles’s Lawffice Space
• NLRB Social Media Complaints Coming Daily? Another “Facebook Firing” Case Out of Chicago – from Seth Borden’s Labor Relations Today
• Are the NLRB’s Complaints About So-Called Facebook Firings News Anymore? – from Daniel Schwartz’s Connecticut Employment Law Blog
• Of Hot Dogs, Luxury Cars, and the National Labor Relations Act – from LE Blog
• Lessons Learned From Twitter and Facebook: The Dangers of Overbroad Social Media Policies – from Employment & the Law
• Facebook Posting Led To Worker's Unfair Firing: Feds – from The Huffington Post

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

The EEOC is not hot in Cleveland

Emboldened by the 2008 election results, the EEOC has become very aggressive. For example, last fall, the agency both held a public hearing on the use of credit histories as selection criteria in employment, and filed suit in federal court in Cleveland against Kaplan Higher Education Corp. alleging that its use of credit histories discriminated against blacks as a class.

Earlier this month, the court hearing the Kaplan case dealt a huge blow to the EEOC’s efforts. In granting a motion filed by Kaplan, it prohibited the EEOC from litigating any employment decision made more than 300 days before the named plaintiff filed her charge of discrimination with the agency.

The case started on February 26, 2009, when Shandria Nichols filed a charge of discrimination with the EEOC. She alleged that Kaplan fired her because of the results of a credit history check. In her charge, she alleged that Kaplan had discriminated against her because she was black, and that Kaplan also discriminated against black individuals as a class through its use of credit histories as a selection criteria. On December 21, 2010, the EEOC filed its lawsuit against Kaplan alleging that its use of credit histories constitutes a pattern and practice of discrimination against black employees and applicants.

Relying on Title VII’s 300-day statute of limitations for the filing of any charge of discrimination, the district court limited the EEOC’s potential class and barred the EEOC from seeking relief for any employment decisions that occurred more than 300 days prior to the filing of the charge, or before May 2, 2008:

The plain language of § 707(e) authorizes the EEOC to investigate and act on a charge of a pattern or practice of discrimination, and mandates that such actions be taken in accordance with the procedures of § 706. Section 706 requires a charge to be filed, under the facts of this case, within 300 days after the allegedly unlawful employment practice occurred. Thus, the EEOC may only act where a charge of discrimination has been filed, and such charges must be filed within 300 days of the unlawful employment practice. Plainly, if a charge is not filed within that time limitation, the EEOC may not act upon it. No exception exists in the statute allowing the EEOC to recover damages for individuals whose claims are otherwise time-barred.

This case is a huge victory for employers. It serves as a hard-line limitations on the EEOC’s ability to resuscitate and litigate stale claims. This ruling limits the number of potential claimants in an EEOC pattern and practice class, which, in turn, hinders the agency’s ability to leverage large classes into large settlements.

Perhaps more significantly, this ruling also joins a growing list of federal court cases that are taking the EEOC to task for overstepping its bounds. Hope springs eternal for employers facing an EEOC enforcement lawsuit, provided you are willing to expend the time (and money) to hold your ground.

[Hat tip: @ProactiveStats]

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

The 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.