BREAKING NEWS: SCOTUS reverses class certification in Dukes v. Wal-Mart

Just a few minutes ago, the Supreme Court delivered its opinion unanimously reversing the 9th Circuit’s class certification in the historically large Dukes v. Wal-Mart sex discrimination class action.

The full opinion is available for download here [pdf].

I will share my thoughts on the opinion tomorrow, but here’s a quick taste, via the opinion’s syllabus:

Rule 23(a)(2) requires a party seeking class certification to prove that the class has common “questions of law or fact.” Their claims must depend upon a common contention of such a nature that it is capable of classwide resolution—which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke. Here, proof of commonality necessarily overlaps with respondents’ merits contention that Wal-Mart engages in a pattern or practice of discrimination. The crux of a Title VII inquiry is “the reason for a particular employment decision,” … and respondents wish to sue for millions of employment decisions at once. Without some glue holding together the alleged reasons for those decisions, it will be impossible to say that examination of all the class members’ claims will produce a common answer to the crucial discrimination question.

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

The countdown is on for HR & Social Media

Last week, the city of Vancouver erupted in violence after the Bruins eliminated the Canucks in the Stanley Cup Finals. Connor Mcilvenna, a suburban Vancouver construction worker, posted several pro-riot status updates on his Facebook wall, such as:

and

He also had his employer, Rite Tech Construction, listed on his Facebook profile. When the company learned of the comments, it fired Mcilvenna because of the potential impact on its reputation. CTV News quotes the company’s owner, Justin Reitz:

I just didn't feel like what was said was appropriate, and I didn't want any affiliation towards my company with the things he said on Facebook…. I had over 100 emails and out of the 100 emails, close to 30 of them were copies of his Facebook page which he sent out during the riots.

We are within a week or two of the publication of HR and Social Media: Practical and Legal Guidance, written by me and an all-star team of labor & employment blawgers and social media adopters. If you are attending SHRM’s Annual Conference in Las Vegas from June 26-29, visit Thompson at booth 1468 to order your copy. If you want to learn about your company’s rights in respect to employees’ social media activities, and how to protect your business from employees like Connor Mcilvenna, this book is a resource you cannot do without.

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

WIRTW #181 (the “Spoonie Luv” edition)

Last week, Tracy Morgan got himself in trouble over a stand-up performance, during which he commented, among other things, that if his son was gay he’d stab him. Taken out of context, Morgan’s comments are hateful and contemptible. Taken in context, you could view them as in poor taste, biting satire on homophobia, or both. For his part (and likely in an attempt to save his job on 30 Rock following the public backlash), Morgan has apologized.

I bring up this story to highlight the following—if the court of public opinion can crucify a stand-up comic for words he uses in jest while performing on a stage, imagine what a jury comprised of those same people could do to your business in a lawsuit over words used in your workplace.

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

Discrimination

• To Prevent Lawsuits—Think the Way a Jury Thinks – from HR Daily Advisor
• Juries get it right 95% of the time? – from Deliberations
• Bayer Sexual Discrimination: Stop the Mommy Wars – from Evil HR Lady, Suzanne Lucas
• Weight discrimination - employers should be mindful of increasing legislation prohibiting this – from Employment Law Bits
• Mixed Ruling In EEOC Religious Discrimination Case Involving EEOC And Private Litigant Claims – from Workplace Class Action Litigation
• Halfway Measures Won’t Spare Employer Liability for Sexual Harassment – from Joe’s HR and Benefits Blog
• Does Title VII require work-life balance? – from Ted Frank’s PointOfLaw Forum
• Fact or fiction: Federal law recognizes “reverse age discrimination” – from Eric Meyer’s The Employer Handbook Blog
• The Cat’s Paw Strikes Again: Court Extends Cat's Paw Theory to Age Discrimination Claims – from Washington Workplace Law
• How the OFCCP’s Thirst For Data Will Impact You – from Stephanie Thomas’s The Proactive Employer Blog

Social Media & Workplace Technology

• 4 tips for using Facebook legally to conduct background checks – from Joan Goodchild at Network World
• Google Offers Up A Free ‘Online Reputation Monitoring’ Tool – from Kashmir Hill’s The Not-So Private Parts
• Employer Challenges to Developing and Enforcing Social Media/Web 2.0 Policies – from Workplace Privacy Counsel
• The New Danger of Limiting Employees’ Speech on Social Media Sites – from The Legal Intelligencer
• 5 Examples of Corporate Social Media Policies – from oneforty
• Why Can’t Public Figures Stay Out of Trouble on Twitter? – from Social Media Today
• When Social Media Is Abused, Can It Be Part of the Solution, Too? – from Augmented Legality
• Social Media Ethics, Politics, the First Amendment, and Twitter – from Shear on Social Media Law

Wage & Hour

• What To Do When the DOL Makes an Unannounced Visit – from Wage & Hour Insights
• The Other Wal-Mart Class Action – from Philip Miles’s Lawffice Space
• The Walmart Wage & Hour Train Rolls On – from Tim Eavenson’s Current Employment
• Walmart, Best Buy punch out time clock – from Eve Tahmincioglu’s CareerDiva
• What Is A “Workweek”, And Why Should You Care? – from Wage and Hour Laws Blog
• Fourth Circuit Affirms Judgment that Donning and Doffing Activities Are Compensable “Work” Under the FLSA – from Employment Class Action Blog

HR & Employee Relations

• Small Business HR: Yes There Are A Lot of Laws You Must Comply With – from Michael Haberman’s Omega HR Solutions
• For a Breach of Restrictive Covenant, Court Says No To Extending Duration As Remedy – from Dan Schwartz’s Connecticut Employment Law Blog
• 3 Things the LeBron James Flameout Shows Us About Workplace Dynamics – from TLNT
• Bankruptcy Found on Background Check is Fair Game – from Nick Fishman at employeescreenIQ Blog
• 8 Things Every Employee Should Know About Trade Secrets – from Screw You Guys, I’m Going Home
• Eleventh Circuit Holds Former Employer Should Have Used Present Perfect Tense to Restrain Employee In Disclosure of Confidential Information – from Trade Secrets Blog
• Two Key Considerations When Performing Background Checks – from Workplace Insights

Labor Relations

• Alarming Aspects of the NLRB’S Case Against Boeing: Part 1 – from Employment Essentials
• Media Round-Up: NLRB Complaint Against Boeing – from Seth Borden’s Labor Relations Today
• Senator DeMint Files FOIA Request Against NLRB for Information on Boeing Complaint – from Wisconsin Employment & Labor Law Blog
• Apple Store employee moves to create union – from Boy Genius Report

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

EEOC to explore disparate treatment in hiring

The EEOC has spent a lot of its time lately examining employers’ hiring practices. For example, it has held public meetings looking at whether certain neutral hiring practices—such as the use of credit, employment status, and criminal and arrest records—have a disparate impact based on race. It is also currently litigating a class action in federal court in Cleveland challenging an employer’s use of credit as a hiring criteria.

Next week, the EEOC will turn its attention from unintentional hiring discrimination to intentional hiring discrimination. It has announced that it will hold a public meeting entitled, Disparate Treatment in 21st Century Hiring Decisions. Little else is known about this meeting, including the specific hiring tactics and criteria the EEOC will examine. The use of “21st century,” however, suggests that the EEOC’s agenda may include current cutting-edge hiring practices, such as the use of social media by employers to vet potential candidates (a topic I’ve covered before).

I will have much more to say about this important topic after the EEOC publishes its agenda and speakers' commentary.

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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 does the Howard Stern Show handle sexual harassment training?

Last week, Howard Stern’s long-time producer Gary Dell’Abate paid Conan O’Brien a visit. Among the topics they discussed was how The Howard Stern Show handles sexual harassment training for its employees. The relevant portion runs from 4:16 until 5:29.

I guess if you take a job with Howard Stern you know what you’re getting yourself into?

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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 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.