WIRTW #184 (the scholarly edition)

A few days ago I received the following request, via Twitter, from a Jason Tenenbaum (@t10nbaum), a law student at Hofstra University:

I agreed, and Jason provided the following:

The Hofstra Labor & Employment Law Journal invites submissions for its Fall 2011 issue on all topics relating to labor and employment law. The issue is tentatively scheduled for publication in early December 2011. Additionally, we are specifically seeking articles on the topic of the intersection between labor and employment law and the financial sector for our symposium to be held in November 2011. While we prefer completed papers, authors interested in the symposium but whose articles are not yet ready for publication are encouraged to contact us as we are still seeking participants/contributors. We ask that all articles be submitted by August 15, 2011. Please submit your manuscripts (along with any appropriate supporting documents) or any questions to Ashley Behre, Managing Editor of Articles, at laboremploymentlaw@hofstra.edu. Thank you for your interest. 

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

Discrimination

• This term’s top 5 employment-law Supreme Court rulings … in haiku – from Eric Meyer’s The Employer Handbook Blog
• Retaliation Timing—How Soon is too Soon? – from Philip Miles’s Lawffice Space
• Employee misconduct and ADA protections – from Walter Olson’s Overlawyered
• Think Twice Before Firing for Misconduct Related to a Disability – from SmartHR
• Age Discrimination: Going Away or Alive and Well? – from Michael Haberman’s Omega HR Solutions
• What’s in a name? Potential for race discrimination – from Employment Law Worldview
• What the Supreme Court’s Wal-Mart Decision Means for You – from Tim Eavenson’s Current Employment
• Judge OKs Class Action Lawsuit Against Disney Parks on Behalf of Legally Blind – from Stitch Kingdom
• 6 ways to avoid being the EEOC’s next hiring “test case” – from Employment and Labor Insider

Social Media & Workplace Technology

• A Modest Proposal: Social Network Background Checks Still Concern Me – from Nick Fishman’s employeescreenIQ Blog
• I Flunked My Social Media Background Check. Will You? – from Gizmodo
• No Friend of Mine: Court Denies Facebook Discovery – from Molly DiBianca’s Delaware Employment Law Blog
• Not Even An In-Person Marriage Proposal? Really?? – from Social Media Employment Law Blog
• Entenmann’s Discovers a Fourth Type of “Self-Destructive Corporate Tweet” – from Inside Opinions: Legal Blogs
• Email Etiquette and the Perils of “Reply All” – from Harvard Business Review
• Confidential Information: Social Media at the Workplace – from Unfair Competition & Trade Secrets Counsel
• No-Soliciting Provisions in a LinkedIn World – from Koncision
• Does Google+ Put Google On the Plus Side? – from Lawyerist
• Why Google+ could find a home in the workplace – from GigaOm
• Could Google+ Be a Useful Work Tool? – from Alexandra Levit’s Water Cooler Wisdom

Employee Relations & HR

• Refusing to Hire Tobacco Users—Valid Argument or Just Blowing Smoke? – from The Proactive Employer Blog
• Is Your Future Boss Horrible? A 10 Point Reference Check – from Bob Sutton
• Expense Reports That Get You Fired: Did the Receipt for Your Company Picnic Look Like This? – from The HR Capitalist, Kris Dunn
• How well does your organization respond to employee feedback and criticism? – from David Yamada’s Minding the Workplace
• The Unemployment Rate, Mismatched Skills, and …Non-competes? – from Trading Secrets
• Avoiding Whistleblower Claims—It’s All in the Employer’s Response – from Michigan Employment Law Advisor
• Make sure employees know you’re serious about deterring fraud – from HR Cafe

Wage & Hour

• Employee Must Be in Close Physical Proximity to Ill Family Member to Satisfy FMLA “To Care For” Requirement – from The FMLA Blog
• Plaintiff must demonstrate prejudice in order to be entitled to relief under the FMLA – from Employment Law Matters
• Bill Would Extend FMLA Benefits and Protections to Additional Family Members – from Washington D.C. Employment Law Update
• DOL: Houston Restaurants Violated FLSA By Imposing 91-Hour Workweek and Not Paying Overtime – from Joe’s HR and Benefits Blog
• 10 Things You Need to Know Before You Demand Your Work Break – from Screw You Guys, I’m Going Home

Labor Relations

• Unions in Decline? National Labor Relations Board to the Rescue! – from TLNT
• Chamber Asks NLRB Not to Rush Rules Shortening Union Elections – from The ChamberPost
• Big business v. the NLRB – from John Logan at The Guardian
• NLRB to Healthcare Employers Facing a Strike: You Can Ask, But Employees Don’t Have to Tell – from Labor Relations Update
• Supreme Court will decide whether union’s assessment for political expenses must be preceded by Hudson notice – from LawMemo Employment Law Blog

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Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

ADA’s associational disability provision does not shield poor-performing employees from termination

Eugene Stansberry, who sued his former employer for disability discrimination, is not disabled. His wife, however, is, suffering from Polyarteritis Nodosa, a rare and debilitating autoimmune disorder. Stansberry sued Air Wisconsin Airlines under the ADA’s “associational discrimination” provision. He claimed that his employer terminated him because of unfounded fears that he would be distracted at work on account of his wife’s disability. The 6th Circuit, in its first reported decision on this seldom-litigated provision of the ADA, affirmed the dismissal of Stansberry’s case.

Section 12112(b)(4) of the ADA prohibits employers from “excluding or otherwise denying equal jobs or benefits to a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association.”

More informally, this provision prohibits three types of discrimination against employees associated with, or related to, someone with a disability:

1. Discrimination based on expense: where an employee suffers an adverse employment action because of an association with a disabled individual covered under the employer’s health plan, which is costly to the employer.
2. Discrimination based on disability by association: where the employer fears that the employee may contract the disability of the person he or she is associated with (e.g., HIV), or the employee is genetically predisposed to develop a disability that his or her relatives have.
3. Discrimination based on distraction: where the employee is inattentive at work because of the disability of someone with whom he or she is associated.

Stansberry pursued his claim under the distraction theory. The 6th Circuit, however, concluded that because an employer is not required to provide a reasonable accommodation to nondisabled workers under the ADA’s associational disability provision, the distraction theory does not shield a poor-performing employee from termination.

The court drew an important distinction between an employment decision based on actual poor performance, and one based on a mere fear that the disability of one with whom the employee has a close relation or association might cause poor performance. The ADA protects the latter, but not the former:

Importantly, while Stansberry’s poor performance at work was likely due to his wife’s illness, that is irrelevant under this provision of the Act. Stansberry was not entitled to a reasonable accommodation on account of his wife’s disability. Therefore, because his discharge was based on actually performing his job unsatisfactorily, and not fears that his wife’s disability might prevent him from performing adequately, Air Wisconsin’s conduct is not prohibited by this section of the Act. While Stansberry’s situation is very unfortunate, he has not offered anything to show that his wife’s disability was in any way connected to Air Wisconsin’s decision to discharge him. The only connection is that it possibly caused his performance to slip. Therefore, Air Wisconsin’s decision to terminate Stansberry does not run afoul of the Act.

As this case illustrates, the best defense against a distraction-based associational disability claim is the employee’s actual poor performance. For this reason, careful and consistent documentation is key to an employer’s ability to successfully defend against such a claim.

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Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

EEOC announces record settlement in ADA case challenging rigid attendance policy

Last month I reported on the EEOC’s public meeting on leaves of absences as ADA reasonable accommodations. At the time, I recommended the following:

Avoid leave policies that provide a per se maximum amount of leave, after which time an employee loses his or her job.

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.

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.

Today, the EEOC reported a record settlement in a disability discrimination class action lawsuit that underscores my points:

Telecommunications giant Verizon Communications will pay $20 million and provide significant equitable relief to resolve a nationwide class disability discrimination lawsuit filed by EEOC…. The suit … said the company unlawfully denied reasonable accommodations to hundreds of employees and disciplined and/or fired them pursuant to Verizon’s “no fault” attendance plans….

The EEOC charged that Verizon violated the ADA by refusing to make exceptions to its “no fault” attendance plans to accommodate employees with disabilities. Under the challenged attendance plans, if an employee accumulated a designated number of “chargeable absences,” Verizon placed the employee on a disciplinary step which could ultimately result in more serious disciplinary consequences, including termination.

The EEOC asserted that Verizon failed to provide reasonable accommodations for people with disabilities, such as making an exception to its attendance plans for individuals whose “chargeable absences” were caused by their disabilities. Instead, the EEOC said, the company disciplined or terminated employees who needed such accommodations.

According to the EEOC, “This settlement demonstrates the need for employers to have attendance policies which take into account the need for paid or unpaid leave as a reasonable accommodation for employees with disabilities.” I could not agree more. If you are considering taking an adverse action against an employee whose medical leave has butted up against a rigid attendance or leave policy, please take 15 minutes and call your employment counsel first.

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Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

The “when” of counting employees for damage caps in federal discrimination cases

Counting is wonderful,
Counting is marvelous,
Counting’s the best thing to do.
Counting is happiness,
Counting is ecstasy,
I love to count, don’t you?
– Counting Is Wonderful, Sesame Street

Under the Civil Rights of 1991, the sum of the non-economic damages (future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, other non-pecuniary losses, and punitive damages) in Title VII, ADA, and GINA cases is capped between $50,000 to $300,000, depending on how many employees a defendant “has … in each of 20 or more calendar weeks in the current or preceding calendar year.” According to Hernandez-Miranda v. Empresas Díaz Massó, Inc. (1st Cir. 6/29/11), when you count employees for purposes of determining the number of employees depends on how you define “current.”

In that case, a jury awarded the plaintiff $300,000 in damages in her sexual harassment lawsuit, in which she proved that during her employment as a construction worker, she was forced to perform oral sex on a supervisor multiple times and was also subjected to extreme, continuing sexual abuse by coworkers and supervisors, all of which her employer ignored. The district court reduced the jury award to $50,000, using the year of the verdict to measure the number of employees.

The 1st Circuit, falling in line with other cases from the 4th, 5th, and 7th Circuits, concluded that the “current” year is the year the discrimination occurred, not the year of the verdict. In doing so, the court examined the policies behind the statute’s caps on damages:

It is clear that Congress did intend to protect …smaller employers … from ruinously large awards…. Congress, we believe, intended such protection for those who were small employers at the time of the discrimination, and not those who by happenstance or design became smaller employers between the time of discrimination and the time of the verdict.

This construction best serves Title VII’s purpose of encouraging resolution of disputes before litigation commences. This purpose … is best advanced by providing clarity and certainty as to the size of potential damage awards from the outset of a dispute. [Non-economic damages] are inherently more difficult to value precisely than the back pay damages traditionally available under Title VII, rendering this type of clarity and certainty all the more important in allowing litigants to make informed decisions about settlement.

Clarity and certainty of potential liability also allows for both sides to set realistic litigation budgets and evaluate whether cases are worth bringing and defending. Such clarity and certainty allows businesses to set adequate reserves, disclose those reserves in annual reports as necessary, and make assessments about whether and how much to insure against the risk of litigation.

Therefore, a court must count the number of people employed when the discrimination took place. The number of employees at the time of the verdict is irrelevant.

The court also concluded that because an employer must affirmatively move to apply the damage caps, it is the employer’s burden to prove the number of employees during the relevant time period.

This case has three important takeaways for businesses:

1. Depending on a business’s size, these caps can have sizeable implications. For example, the ruling in Hernandez-Miranda increased the recovery from $50,000 to $200,000. If you are a small employer (500 or fewer employees) defending a Title VII, ADA, or GINA lawsuit, you omit evidence of the number of employees at your peril.
2. If it makes a difference, introduce evidence of the number of employees both during the year of the discrimination and during the year of the trial. Until the Supreme Court weighs in on this issue, the law is in flux. There is no guarantee that this court will have the final say on this issue, and a different circuit can reach a different result.
3. Ohio’s tort reform statute, which also provides caps for punitive damages, but which lacks the same language as its federal counterpart, is likely unaffected by Hernandez-Miranda. Ohio small employers defending state-law claims should not necessarily look to the Hernandez-Miranda ruling for relief.

Time after time, time alone is not enough to prove retaliation

More than three years ago, I discussed that an employee needs to prove something more than the mere closeness in time between protected activity and adverse action to prove retaliation. Last week, in Meyers v. Goodrich Corp., the Cuyahoga County Court of Appeals decided a case which further illustrates this point, and clarifies that as more time passes, the more additional evidence of retaliation an employee needs.

In Meyers, an entire year lapsed between when the company’s vice-president of HR interviewed the plaintiff in a harassment investigation and his termination. The Court concluded that the lapse in time, coupled with the lack of any additional evidence of a retaliatory motive, doomed Meyers’s claim:

In this case, no inference of causation can be deduced from “temporal proximity.” Goodrich did not terminate Meyers until a year after he participated in the internal discrimination investigation. Thus, to survive summary judgment, Meyers was required to submit additional evidence of retaliatory conduct—or discriminatory intent—between the time he took part in the protected activity and the time he was fired.

There is evidence that sometime before October 2006, Goodrich managers met to discuss how to improve the overall performance of its employees, including supervisors…. The managers ranked Meyers the 24th lowest-performing production supervisor out of 26 supervisors…. Meyers's manager at that time, sent Meyers a letter on October 26, 2006, notifying him that he had 30 days to improve and maintain his performance in certain areas, which were outlined in the letter. But notably, this occurred three months before Meyers took park in the internal investigation.

Even according to Meyers, after January 2007 when the protected activity occurred, the evidence indicates that Goodrich's conduct—if anything—was favorable to him, not retaliatory. He received a 3.5 percent merit raise in April 2007, where he asserts he “was in line with the raises of several of his fellow supervisors.” …

As Meyers concluded in his appellate brief, “[t]he record is simply devoid of any evidence" that Goodrich treated him badly in 2007…, i.e., “[n]o write-ups, no disciplinary actions, no poor reviews.”

Retaliation continues to be the most dangerous EEO claim employers face. The Meyers case shows that employers can win these cases, provided they engage in the proper handling of employee performance issues, coupled with the passage of time, following protected activity.

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Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

Apparently it’s a short trip from Wal-Mart to breast feeding

Last Friday, Labor Secretary Hilda Solis released the following statement about the Dukes v. Wal-Mart decision on the DOL’s Work in Progress blog:

The Court’s decision in the Walmart lawsuit made no ruling on whether America’s largest employer engaged in unlawful pay discrimination…. As Labor Secretary, I believe it is my responsibility to use my authority to close the pay gap so women can earn their fair share and provide the income support their families rely upon….
We also need to create more flexible workplaces so women don’t have to choose between motherhood and a fulfilling career. To that end, my Wage & Hour division has begun enforcing a new provision in the Affordable Care Act that guarantees break time for nursing mothers.

Let me get this straight. The Supreme Court simply decided that 1.5 million women, managed by thousands, if not tens of thousands, of different supervisors, lacked enough in common to bring their claims in one unified class action. From this holding, Secretary Solis makes the jump to conclude that breastfeeding working moms need more workplace flexibility. Am I missing something?
Secretary Solis concluded her comments by stating, “We’re living in the year 2011—not 1911.”

Madam Secretary, let me repeat what I said a few weeks ago, since apparently not everyone had the chance to read it:

So let’s not overreact to the Wal-Mart decision by arguing that its impact will take women back to the stone age, or, worse, the 1950s [or 1911]. Such knee-jerk overreactions unnecessarily polarize us into positions that do nothing to further the debate over the real issue—eliminating workplace discrimination.

WIRTW #183 (the “to catch an (alleged) adulterer” edition)

Chris Hansen’s Dateline NBC series To Catch a Predator was one of my guilty pleasures. It was eye-opening to watch a bunch of creeps try to explain why they needed a bag full of condoms and a six-pack of beer for their play date with a 13-year-old girl. After three years of nabbing these (alleged) pedos, you’d think that Chris would have learned the power of the hidden camera. Think again. From the Baltimore Sun:

The NBC anchor was secretly filmed while on a date with someone who was most definitely not his wife.

According to the Daily Mail, Hansen has been carrying on a secret affair with a local TV reporter from Florida, and he was busted taking her to dinner at the Ritz-Carlton before returning to her apartment for the evening.

I hope they at least served Chris cookies and lemonade before they broke the news to him that he’d been busted.

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

Discrimination

• 15 Things You Need to Know About Disability Discrimination – from Screw You Guys, I’m Going Home
• Octogenarian Manager Strikes Blow Against Age Bias – from Workplace Fairness
• Age discrimination: Assumptions that lead to trouble – from HR Cafe
• EEOC Charges Abercrobmie & Fitch Violated Muslim Employee’s Rights – from Joe’s HR and Benefits Blog
• Getting Used to Sexual Harassment: “Boiling Frog” Syndrome – from Employment Lawyer Blog
• Is My Boss Racist, or Just Being a Good Manager? – from Evil HR Lady
• When are Employee Pregnancy Policies Considered Unequal Treatment? – from Virginia Employment Law Journal
• Guide to Dress Codes and Nondiscrimination Laws – from HireCentrix

Social Media & Workplace Technology

• Will Google+ Kill Facebook? – from Manpower Employment Blawg
• Facebook hits 750 million users milestone – from Boy Genius Report
• Don’t Let These Facebook Follies Happen To You – from Kashmir Hill’s The Not-So Private Parts
• Will Facebook Destroy Your Job Search? – from Forbes
• Facebook Post Not a “Serious” FLSA Compaint – from Philip Miles’s Lawffice Space
• Social Media and Discovery: Accessing Password Protected Material – from LE Blog
• LinkedIn Lessons for Employers: Part 6 – from Molly DiBianca’s Delaware Employment Law Blog
• Revenge Is Best Served On A 64 Inch TV Screen – from Workplace Diva

HR & Employee Relations

• Ohio a hotbed of biotech job growth – from Dayton Business Journal
• A Test to See If Anyone Actually Reads Your Employee Handbook... – from The HR Capitalist, Kris Dunn
• Stealing the Competition’s Employees – from Rob Radcliff’s Smooth Transitions
• Employee Perks Return Amid Fears of Poaching – from In Charge
• When Does Preparing to Compete Become Unlawful Competition? – from Texas Employment Law Update
• Screwing up at your new gig – from CareerDiva, Eve Tahmincioglu
• The Ethics of Sleep – from LaborRelated
• SHRM Las Vegas Day 3: How Zappos Tony Hsieh Wowed the HR Pros – from TLNT
• Things You Can’t Do on a Plane: Vol. 2 – from Inside Opinions: Legal Blogs
• Drug and Alcohol Testing of Employees in the Workplace – from Minnesota Labor & Employment Law Blog

Wage & Hour

• Could the Beastie Boys collect overtime pay in Pennsylvania? – from Eric Meyer’s The Employer Handbook Blog
• “Girls Gone Wild” Film Editor Seeks Unpaid Overtime Pay – from Wage & Hour - Development & Highlights
• Pizza Chain Fined For Violating Overtime Pay Laws And Retaliation – from Overtime Lawyer Blog
• Can You Terminate Someone the Day They Return From FMLA? – from Michael Haberman’s Omega HR Solutions
• Third Circuit Sustains Employee’s Removal for Lying About Reason for Absences – from The FMLA Blog

Labor

• Push to Repeal Ohio Law on Public Workers Gains Ground – from New York Times
• More About the NLRB’s Proposed Rules on So-Called “Quickie Elections” – from Dan Schwartz’s Connecticut Employment Law Blog
• NLRB to Hold Public Meeting on Proposed Representation Election Rule – from Labor Relations Counsel
• Major Changes to NLRB Rules Announced Today – from National Review Online
• NLRB Rule Would Burden Employers with Fast-Track Union Elections – from National Legal and Policy Center

More on Wal-Mart v. Dukes

• Too Big to Nail – from The Colbert Report
• Do We Need The Equal Rights Amendment In Light Of Wal-Mart? – from The Proactive Employer Blog
• The Supreme Court and Wal-Mart: Does diversity (of the Justices, that is) matter? – from David Yamada’s Minding the Workplace
• Justices “split largely along gender lines” – from Walter Olson’s Overlawyered
• Copland on Wal-Mart v. Dukes – from Ted Frank’s PointOfLaw Forum
• Wal-Mart v. Dukes: 7 Employment Takeaways from the Recent Supreme Court Ruling – from CPEhr
• More Thoughts on the Wal-Mart Decision – from Maryland Employment Law Developments

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Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

“You’re pregnant. We can’t hire you.”

There are some things you just shouldn't say to a pregnant job applicant—such as, “You’re pregnant. We can’t hire you.” But, that's exactly what a Phoenix, Arizona, Subway manager told Belinda Murillo when she inquired about the status of her job application. What’s even more amazing than the fact that he made the statement is that he admitted to it during her subsequent pregnancy discrimination lawsuit. The bonus points one typically receives in litigation for candor and honesty don’t apply when you’re copping to discrimination. Thus, it is not all that surprising that based on these facts, in EEOC v. High Speed Enterprise, Inc., the court granted summary judgment in favor of the employee.

The lesson from this case is to be reasonable when evaluating risk in defending a lawsuit. Faced with these facts, this case screamed for a settlement. Instead, this employer found itself ensnared in three years of litigation with the EEOC (including 17 depositions, numerous discovery disputes, and a vibrant motion practice), with a jury trial on damages still on the horizon. At the hourly wage of $6.50 Murillo would have earned as a Subway Sandwich Artist, this case should not have been that difficult to settle. Even in the face of these egregious facts, $15,000 should been more than enough to have resolved this case. The fact that it did not resolve reveals a breakdown in the plaintiff’s evaluation of value, the defendant’s evaluation of risk or value, or both.

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Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

“Despicable” does not always equal “severe or pervasive” in a racial harassment claim

In Williams v. CSX Transp. Co. (6/28/11) [pdf], the 6th Circuit upheld the dismissal of a racial harassment claim, confirming the long-standing principle that the anti-discrimination laws are not codes of workplace civility.

The harassment allegations in the lawsuit focused on a two-day period:

According to Williams, Jeff Wingo and Tim Magargle, two supervisors, were watching the Republican National Convention on television … when Williams entered and indicated she did not want to watch. Wingo allegedly told Williams that she was a Democrat only because she was a black woman; that unmarried women cannot “have the love of God in their heart[s]”; and that this country should “get rid of” Jesse Jackson and Al Sharpton because without those two “monkeys” the country “would be a whole lot better.” The following day, Williams alleges that Wingo told her that if she returned to school, she would not have to pay for her education because she was a single black mother.”

Williams also claimed that six months prior, Wingo also asked her why black people cannot name their children “stuff that people can pronounce, like John or Sue,” and told her that black people should “go back to where [they] came from.”

In upholding the trial court’s dismissal of the harassment claim, the Court distinguished between comments that are despicable and comments that are so severe or pervasive that they change the terms and conditions of one’s employment:

The statements were isolated, not pervasive: all but two occurred over a two-day period. Nor were they sufficiently “severe” for Williams to be able to prevail on a racially hostile work environment claim. Those statements—for example, calling Jesse Jackson and Al Sharpton “monkeys” and saying that black people should “go back to where [they] came from”—are certainly insensitive, ignorant, and bigoted. But they more closely resemble a “mere offensive utterance” than conduct that is “physically threatening or humiliating.”

Just because isolated statements might not subject an employer to liability does not mean they should be ignored. To the contrary, the fact that the employer in Williams ignored an anonymous call into its ethics hotline likely caused the lawsuit to be filed. Seven years and hundreds of thousands of dollars later, the employer prevailed on the racial harassment claim. I’ll let you decide which is the better course of action.

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Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

Public policy is in the eye of the beholder

Consider the following two wrongful discharge cases, both recently decided by different Ohio appellate courts, and think about which you believe presents a bigger risk for the employer:

1. In Morris v. Dobbins Nursing Home (6/20/11), a nursing home aide claimed that she was illegally terminated because she reported certain unlawful activities at the home to a state investigator during a health department audit. 

2. In Alexander v. Cleveland Clinic Foundation (6/16/11), a police officer claimed that the Cleveland Clinic wrongfully fired him after reports of several outbursts while working traffic control. In one incident, he struck a car that failed to yield at an intersection, and in another he yelled at bus driver to “learn how to f****** drive.”

The appellate courts decided both cases on the legal issue of whether the plaintiff presented a sufficiently clear public policy—manifested in a state or federal constitution, statute or administrative regulation, or in the common law—to support their respective wrongful discharge claims. Morris relied upon federal regulations that detail the safe operation of nursing homes; Alexander relied upon the requirement that police officers enforce state laws.

Public policy wrongful discharge claims often hinge on the combination of two influences: the creativity of the employee’s attorney to pigeonhole the circumstances surrounding the discharge into a state or federal constitution, statute or administrative regulation, or in the common law; and the court’s opinion of that particular public policy. The unpredictability of these claims underscores the need for employers to treat every termination like a potentially litigious event.

Unpredictable, you say? How many of you thought that the abusive police officer had the better case? Scary, right?

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Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

“Twitter is like making a press statement”

Social Media Today published some eye-opening stats on social media’s penetration into the public consciousness:

• One out of every six minutes spent online is on a social network
• 82 percent of 18-29 year olds use at least one form of social networking
• 46 million Americans check their social media profiles daily
• 96 percent of Americans use Facebook
• 73 percent of the US internet population visits Facebook each month
• People send approximately 140 millions tweets per day
• Yet, 41 percent of companies report they have no staff dedicated to social media

Given the increasing prevalence of social media in society, it is inevitable that abuse by employees will become more of a problem. In a recent survey of businesses, Osterman Research and Proofpoint (as reported by USAToday’s TechnologyLive Blog) concluded that the best strategy to combat employee misuse of social media is a combination of employee trust, social media policies, and educating employees on the use of their best judgment when communicating online.

As to this last point, comedian Louis C.K. said the following in a recent interview by CNN when asked for his thoughts on Twitter:

I mean, Gilbert Gottfried, he’s been saying a whole lot worse for years than he said on Twitter, and then when he said something on Twitter, he lost his job. He lost his livelihood! You know, it’s f---ed up. Twitter is like making a press statement. It’s very sober, and it’s not funny, and the s--- just comes out very dry, and people get upset.

Do your employees understand the risks they are taking by posting their unfiltered thoughts on Twitter, Facebook, and other social media sites? Do you know what your rights are as an employer when you learn that an employee has said something embarrassing to your organization on a social media site? These questions, and more, will be answered in the upcoming HR and Social Media: Practical and Legal Guidance, to be published in the coming weeks by Thompson Publishing. If you’re in Las Vegas at SHRM’s Annual Conference, please stop by Thompson’s booth (1468) for more information.

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Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

WIRTW #182 (the “Oscar the Grouch” edition)

Last summer, I asked a simple question: “Have we devolved into a society of assholes?” Today, I offer the empirical proof, courtesy of a survey conducted by Weber Shandwick and Powell Tate in partnership with KRC Research, as reported by Roger Simon at Politico.com (c/o Workplace Diva). The results are not surprising, but nonetheless sobering:

Some 86 percent of Americans say they have been victims of incivility…. About six in 10 Americans admit they themselves have been rude….

More than four in 10 Americans have experienced incivility in the workplace, with 65 percent blaming their bosses for it, and 59 percent blaming fellow employees. Younger employees were blamed by 34 percent, and access to the Internet by 25 percent (Is Angry Birds making people angrier?). Older employees did best, blamed for incivility by only 6 percent.

On the positive side, when asked to assign a degree of incivility to 25 American institutions, the workplace finished better than 21 others, sandwiched between President Obama and Oprah. Good company to be in, I suppose.

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

Wal-Mart v. Dukes

• Wal-Mart v. Dukes: What The Class-Action Decision Really Means for Employers – from Dan Schwartz’s Connecticut Employment Law Blog
• Why the Walmart Ruling is Good For Everyone – from Evil HR Lady
• Wal-Mart Stores, Inc. v. Dukes—A Sigh of Relief – from Michael Fox’s Jottings By An Employer’s Lawyer
• Wal-Mart Ruling Reinforces Fundamental Principles of Fairness – from The ChamberPost
• “$7 million to sue Wal-Mart”? – from Ted Frank’s PointOfLaw Forum
• Why Wal-Mart Matters, But Perhaps Less Than You Think – from Workplace Fairness
• Five Reasons Why the Walmart Decision Doesn't Affect Your Discrimination Case – from Donna Ballman writing at AOL.com

Social Media & Workplace Technology

• NLRB Continues Aggressive Response to Employers’ Social Media Policies It Deems Overbroad – from Social Networking Law Blog
• Update: NLRB Continues To Closely Probe Employer Terminations Following Employee Complaints On Social Media – from Hunton Employment & Labor Law Perspectives™
• Fired for having a sassy Web page? – from HR Cafe
• Now Your Embarrassing/Job-Threatening Facebook Photos Could Haunt You For Seven Years – from Kashmir Hill’s The Not-So Private Parts
• Prosecutor’s Facebook postings did not warrant overturning conviction – from Evan Brown’s Internet Cases
• How To Respond To A Social Media Crisis or Scandal: Don’t Be A Weiner – from Shear on Social Media Law
• Even More Social Stats – from Mark Toth’s Manpower Employment Blawg
• Grandparents Are Using Social Networks – from Social Media Today

Employee Relations & HR

• “So You Got My Letter” – from Walter Olson’s Overlawyered
• Hire Slow, Fire Fast – from Michael Haberman’s HR Observations
• Does Your Employment Separation Agreement Mean What You Think it Means? Michigan Court Addresses Meaning of “Disparagement” – from Michigan Employment Law Advisor
• Keeping The Pirates At Bay: How To Avoid And Deal With Poaching – from Trade Secret / Noncompete Blog
• Goodyear Tire Sues Continental Tire On Invevitable Disclosure Via New Hire Theory – from Trade Secrets Blog
• Protecting Trade Secrets: Confidential Information and Customer Relationships Audits – from Trade Secrets & Non-Compete Blog
• GOOD RIDDANCE! Just what can you say about that ex-employee of yours? – from Employment and Labor Insider
• What to expect from a background check – from The Work Buzz

Labor Relations

• BEWARE EMPLOYERS: Overhauled union-election rules may be near – from Eric Meyer’s The Employer Handbook Blog
• More on NLRB’s Proposal to Expedite Union Representation Elections – from Seth Borden’s Labor Relations Today
• NLRB Proposes Significant Changes to Election Process – from Washington D.C. Employment Law Update
• Obama Administration Issues Two Proposed Regulations Designed to Promote Pro-Union Agenda – from Employer Law Report
• Attorneys are more influential than they thought… or maybe the DOL is giving us too much credit – from HR HQ
• Big Brother Watching You? DOL Demands More Information from Employers About Union Avoidance Activities – from Vorys on Labor

Wage & Hour

• Conjunction Junction, What’s Your Function? The Ninth Circuit Finds Junior Accountants And Other Non-Licensed Professions May Be Exempt – from The Wage and Hour Litigation Blog
• A Brief FLSA Refresher Course – from Employment Essentials
• Firing replacement workers to allow striking employees to return is not a “mass layoff” under WARN Act – from Employment Law Matters
• Happy Father’s Day: Dad Claims He Was Terminated After Taking FMLA Leave for Bonding with Newborn Child – from FMLA Insights

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Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

EEOC holds public meeting on 21st century hiring discrimination … and misses the biggest issue

There is perhaps no issue more important to the topic of hiring in the 21st century than social media. Yet, yesterday the EEOC held a public meeting entitled, “Disparate Treatment in 21st Century Hiring Decisions,” and completely ignored this key issue.

In fact, it’s hard to find much of anything new or cutting edge presented by the EEOC at the meeting. Instead, the meeting provided a rehash of longstanding principles against hiring discrimination. Nevertheless, the advice provided by management-side attorney Grace Speights to employers to help avoid hiring discrimination is worth repeating and taking to heart:

1. Develop strong EEO policies, train managers on the policies and the law, and hold managers responsible for failing to follow the policies.
2. Increase HR’s participation and oversight in the hiring and promotion processes as a form of checks and balances to monitor compliance with company policies and legal requirements.
3. Implement diversity training for employees.
4. Identify and remove perceived barriers to hiring and promotion, such as by advertising open positions in sources that reach a more diverse applicant pool.
5. Conduct periodic self-analyses to determine whether current employment practices are tied to job requirements, job performance, and business necessity.
6. Foster training and mentoring programs that provide all workers the opportunity, experience, and information necessary to qualify for promotions.

If you want to learn more about the role of social media in the vetting and hiring of employees, and the impact the discrimination laws have on these practices, pick up a copy of HR and Social Media: Practical and Legal Guidance, available from Thompson Publishing in the coming weeks. And, if you find yourself at SHRM 2011 in Las Vegas next week, stop by Thompson's Booth (#1468) for more information.

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Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

Wal-Mart v. Dukes does not equal barefoot and pregnant

I thought that I had my final say on Wal-Mart v. Dukes yesterday. Then, I read more of the commentary on the decision. For example, this clip from MSNBC argued that the Wal-Mart case marks the end of women’s equality in the workplace:



Or consider this quote, courtesy of Joanne Bamberger at the Huffington Post:

The 5-4 decision that is at the heart of this national employment crisis is the over-stepping of the right wing of the court to stretch a procedural case to change substantive law in a way that adversely impacts today's majority of breadwinners—women.

There is no doubt that by limiting class actions, Wal-Mart was a big win for businesses. But let’s not confuse what Wal-Mart is for what it is not. It is not a death blow to women’s rights in the workplace. It will not eliminate all of the good that Title VII has done for women (and its other protected classes). It will not take us back in time to the days of June Cleaver and Harriet Nelson.

Writing for the majority, Justice Scalia said, “[L]eft to their own devices most managers in any corporation—and surely most managers in a corporation that forbids sex discrimination—would select sex-neutral, performance-based criteria for hiring and promotion that produce no actionable disparity at all.” Justice Scalia might be three decades removed from the workplace, but he’s not off base. In 2011, the overwhelming majority of companies do not intentionally discriminate. Companies may have rogue supervisors, managers, and even executives, who discriminate, for which their companies can be held responsible. Indeed, in a company as big as Wal-Mart, it would be surprising if there weren’t employees who suffered discrimination. As an institutional matter, though, most companies try to do right by their employees by combating workplace discrimination, even Wal-Mart.

So let’s not overreact to the Wal-Mart decision by arguing that its impact will take women back to the stone age, or, worse, the 1950s. Such knee-jerk overreactions unnecessarily polarize us into positions that do nothing to further the debate over the real issue—eliminating workplace discrimination.

The 7 key points for employers from the Supreme Court’s Wal-Mart v. Dukes opinion

Yesterday, the Supreme Court unanimously reversed the certification of the class action in Wal-Mart Stores, Inc. v. Dukes. Recall that Dukes sought the certification of a nationwide class of 1.5 million female Wal-Mart employees allegedly denied pay and promotions because of a corporate-wide “policy” of sex discrimination. The reversal was expected; the unanimity of the result (albeit not of the reasoning), however, was not.

The majority grounded its decision on the lack of commonality among the potential class members. Here are the seven key takeaways from the Court’s opinion:

   1. Commonality requires more than an alleged common violation of the same law:

“Quite obviously, the mere claim by employees of the same company that they have suffered a Title VII injury, or even a disparate impact Title VII injury, gives no cause to believe that all their claims can productively be litigated at once. Their claims must depend upon a common contention—for example, the assertion of discriminatory bias on the part of the same supervisor.” [p. 9]

   2. Class certification often requires some analysis of the merits of the underlying claims:

“Here respondents wish to sue about literally millions of employment decisions at once. Without some glue holding the alleged reasons for all those decisions together, it will be impossible to say that examination of all the class members’ claims for relief will produce a common answer to the crucial question why was I disfavored.” [pp. 11-12]

   3. When a company has an announced policy against discrimination, and the alleged discrimination consists of management’s deviation from that policy, it is difficult, if not nearly impossible, to find commonality among those individual decisions:

“[L]eft to their own devices most managers in any corporation—and surely most managers in a corporation that forbids sex discrimination—would select sex-neutral, performance-based criteria for hiring and promotion that produce no actionable disparity at all. Others may choose to reward various attributes that produce disparate impact—such as scores on general aptitude tests or educational achievements…. And still other managers may be guilty of intentional discrimination that produces a sex based disparity. In such a company, demonstrating the invalidity of one manager’s use of discretion will do nothing to demonstrate the invalidity of another’s. A party seeking to certify a nationwide class will be unable to show that all the employees’ Title VII claims will in fact depend on the answers to common questions.” [p. 15]

   4. The larger the proposed class, the more difficult it is to establish a practice common to the class:

“In a company of Wal-Mart’s size and geographical scope, it is quite unbelievable that all managers would exercise their discretion in a common way without some common direction.” [pp. 15-16]

   5. General statistical evidence is insufficient to establish commonality, without something extra to tie those stats to an issue common to the class:

“Other than the bare existence of delegated discretion, respondents have identified no ‘specific employment practice’—much less one that ties all their 1.5 million claims together. Merely showing that Wal-Mart’s policy of discretion has produced an overall sex-based disparity does not suffice.” [pp. 17-18]

   6. Anecdotal evidence also must tie narrowly to a common issue:

“Respondents filed some 120 affidavits reporting experiences of discrimination—about 1 for every 12,500 class members—relating to only some 235 out of Wal-Mart’s 3,400 stores…. Even if every single one of these accounts is true, that would not demonstrate that the entire company ‘operate[s] under a general policy of discrimination,’ … which is what respondents must show to certify a companywide class.” [p. 18] “A discrimination claimant is free to supply as few anecdotes as he wishes. But when the claim is that a company operates under a general policy of discrimination, a few anecdotes selected from literally millions of employment decisions prove nothing at all.” [p. 18, fn. 9]

   7. Class action damages that must be individually litigated (such as backpay) cannot be litigated in a class action that seeks injunctive relief as its unifying point across the class:

“When the plaintiff seeks individual relief such as reinstatement or backpay after establishing a pattern or practice of discrimination, ‘a district court must usually conduct additional proceedings … to determine the scope of individual relief.’ … At this phase, the burden of proof will shift to the company, but it will have the right to raise any individual affirmative defenses it may have…. The Court of Appeals believed that it was possible to replace such proceedings with Trial by Formula…. [A] class cannot be certified on the premise that Wal-Mart will not be entitled to litigate its statutory defenses to individual claims.”

What does all this mean for businesses? It means that class actions alleging employment law violations must be narrowly tied to a specific policy or practice. It means that the best defense against a class action might be a policy directing decision-makers to follow the law. It means that class actions in cases alleging intentional discrimination just became a lot more difficult to establish, and that going forward we will see many more certified classes in disparate impact cases than in disparate treatment cases.

Most importantly, it is not the “unmitigated disaster for historically oppressed employees seeking large-scale workplace justice against their employers,” as argued by Professor Paul Secunda on the Workplace Prof Blog. Instead, I agree with Walter Olson, writing at Cato at Liberty who summed it up best:

To sweep hundreds of thousands of workers (or consumers or investors) into a class as plaintiffs even if they personally have suffered no harm whatsoever— to use sexism at Arizona stores to generate back pay awards in Vermont, and statistical disparities to prove bias without allowing defendants to introduce evidence that a given worker’s treatment was fair—bends the class action mechanism beyond its proper capacity. Also to the point, it is unfair.

Dukes means that corporate America can exhale a huge sigh of relief—a Court that has been surprisingly employee-friendly saved its biggest decision to flex its pro-business muscles.

The Wal-Mart Stores, Inc. v. Dukes opinion is available for download as a pdf form the Supreme Court’s website.

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.