Testing the legality of employee personality tests

“You have a nice personality,
but not for a human being.”
  –Henny Youngman

At BNET, Suzanne Lucas (aka the Evil HR Lady) reports that more than half (56%) of companies do some form of personality testing before hiring people. Before you can conclude whether these tests help businesses make good hiring decision, you have to answer a very important threshold question—are they legal?

Despite the apparent prevalence of these types of tests, there is very little guidance available on their legality. Karraker v. Rent-A-Center (7th Cir. 2005) is the seminal case. As Karraker points out, the legality of a personality test by an employer hinges on whether it qualifies as a “medical examination” protected under the ADA. The Karraker court concluded that the ADA covered the MMPI personality test as a protected medical exam. In reaching its decision, the court drew a key distinction between psychological tests that are designed to identify a mental disorder or impairment (medical examinations), and psychological tests that measure personality traits such as honesty, preferences, and habits (not medical examinations). Because the MMPI revealed, in part, potential medical diagnoses such as paranoid personality disorder, the court concluded that it was a protected medical examination. Other personality tests may not dictate the same result, depending on the types of results provided.

Merely because something is a “medical examination” does not mean its use is illegal under the ADA. It merely means that the ADA places certain limits on its use:

	Personality Test Is A Medical Exam	Personality Test  Is Not A Medical Exam
Prior to an offer of employment:	Personality tests are prohibited.	No limits on the use of personality tests.
After an applicant is given a conditional job offer, but before s/he starts work:	Personality tests are permitted, regardless of whether they are related to the job, as long as the employer does so for all entering employees in the same job category.	No limits on the use of personality tests.
After employment begins:	Personality tests are permitted only if they are job-related and consistent with business necessity.	No limits on the use of personality tests.

What does all this mean? The use of personality tests raise complex legal and business issues. If you are considering using personality tests to screen applicants or current employees, tread carefully and not without the input of your employment counsel.

I’m honored to be one of LexisNexis’s Top 25 Labor & Employment Blogs

LexisNexis has released the final nominees for its list of the Top 25 Labor & Employment Blogs, and I am honored and humbled to announce my inclusion. The criteria for inclusion:

The honored blogs contain a wealth of information for employment and labor law practitioners, with timely news items, practical information, expert analysis, tips, frequent postings, and helpful links to other sites.

If you are so inclined, polls are open until September 30 for you to vote for the Top Labor and Employment Law Blog of the Year. If you’re not registered with LexisNexis, this link will allow you to create a free registration or to use your sign-in credentials from your favorite social media site (they promise no sales calls). You can then follow this link to vote.

Thanks to all who nominated me and to all who will vote, whether it's for my blog or those of the 24 other worthy nominees, many of whom I have gotten know over the years and consider friends. It’s an honor to be included in your company.

Disability claims definitely on the EEOC’s radar

I am often asked how I come up with ideas to post 5 days a week, every week. While the answer is a closely guarded secret, I will allow a little insight—the EEOC’s website is a wealth of information. Every news release by the agency announcing a new lawsuit or a settled claim presents an fresh blogging opportunity.

Recently, I’ve noticed an inordinate number of lawsuits filed by the EEOC claiming disability discrimination. So, I did a little digging. In the last 3 months, the agency has announced the filing of 54 new lawsuits. Of those, 22, or a staggering 41%, allege disability discrimination. The rate of filing is even higher when you consider that according to the EEOC's latest charge statistics, only 25% of all charges filed with EEOC contain a claim of disability discrimination. The agency is filing lawsuits at a rate 60% higher than it is receiving claims. These statistics should signal to employers that the agency is scrutinizing how you are handling your disabled workforce.

As I thought about these numbers, I also thought back to Sunday's season finale of Curb Your Enthusiasm, titled, Larry v. Michael J. Fox. Apparently a very good sport, Fox allowed Larry David to ask the age-old question, “Pissed or Parkinson’s?” Larry had shushed Fox while Larry’s girlfriend was playing piano in a lounge, and spent the better part of the episode trying to figure out if Fox’s subsequent behavior (a head shake, an shaken soda, a bump-into) was from anger stemming from the shush, or Fox’s Parkinson’s.

Kudos to Fox for not hiding from his disability, but using it humorously to raise awareness. Perhaps if more people approached disabilities in this open and inclusive manner, we’d have less of a need for EEOC lawsuits.

EEOC sues for disabled shoplifter

As a parent of two small children, I am very cognizant of the importance of leading by example. For example, I don’t want them to them text-and-drive when they are older. So, I try my hardest (and, it’s hard) not to pick up my mobile while they’re in the car with me.

Last week, the EEOC announced that it had filed suit on behalf of a diabetic (and terminated) Walgreens employee who ate a bag of chips off a store shelf:

According to the EEOC, Josefina Hernandez, a cashier at Walgreens’ South San Francisco store, was on duty when she opened a $1.39 bag of chips because she was suffering from an attack of hypoglycemia (low blood sugar)…. Walgreens knew of her diabetes. Nevertheless, Walgreens fired her after being informed that Hernandez had eaten the chips because her blood sugar was low, even though she paid for the chips when she came off cashier duty.

You might think that a $1.39 bag of chips, for which the employee later paid, is not a fireable offense. Yet, no rule is more important to a retailer than its no-shoplifting rule. Most stores have zero tolerance policies, both for customers and employees. It may seem unreasonable to fire a diabetic employee over one bag of chips. Consider, however, that the employer might not want to set a precedent that it is acceptable to eat food off the shelf without paying for it first. If customers see an employee consuming merchandise without paying first, they might think it’s allowed by the store, which makes shoplifting and loss prevention that much more difficult for the employer to control.

There are no hard and fast rules about reasonable accommodations or undue hardships. One employee’s reasonable snack is another employer’s unreasonable exception to an important and unbending rule. I’m not saying that this employer should have ignored the employee’s diabetes in reaching its termination decision, but this case is not nearly as one-sided as the EEOC’s self-serving news release makes it appear.

WIRTW #192 (the “Fly, Eagles Fly” edition)

Man, am I ready for some football!

Also, this is my last pitch for nominations for the ABA Blawg 100 (closes today) and the LexisNexis Top 25 Labor & Employment Law Blogs (closes Monday). Thanks for your support.

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

Discrimination

• The Connection Between Fantasy Football Leagues and Employment Law – from Dan Schwartz’s Connecticut Employment Law Blog
• The Scooter Store ... yadda, yadda, yadda ... disability bias? – from Eric Meyer’s The Employer Handbook Blog
• “ADA lawsuits questioned after serial plaintiff claiming emphysema caught on tape hiking” – from Walter Olson’s Overlawyered
• Age bias in IT: The reality behind the rumors – from Computerworld
• Employment of Women: Survey of Issues & Initiatives—Workplace Flexibility – from George’s Employment Blawg
• Workplace Religious Freedom Act Expands Protections Against Religious Discrimination – from New York City Employment Lawyer (and congrats to my friend and law school classmate, Amardeep Singh, on getting this passed)
• Rastafarian stands ground on faith – from Roanoke.com

Social Media & Workplace Technology

• Ethical and Legal Workplace Monitoring – from Dawn Lomer at i-Sight Investigation Software Blog
• Hacking Fears Prompt Workplace Social Media Ban – from the Wall Street Journal’s Tech Europe Blog
• TMI? I Don't Really Need To See Your Hamstring – from Social Media Employment Law Blog
• Court Imposes Social-Networking Policy – from Molly DiBianca’s Delaware Employment Law Blog

HR & Employee Relations

• Reasons to Say Goodbye to an Employee – from Workplace Insights
• The 12 Quickest Ways to Get Fired – from Fox Business
• Is It Okay To Fire Someone Over the Phone? – from Workplace Diva
• Gathering Documents in a Workplace Investigation – from Debra Reilly’s Workplace Investigations Blog
• Document Now, Fire Later – from Virginia Employment Law Journal
• There’s more to the office than “The Office” – from salon.com

Labor Relations

• Seinfeld and Labor and Employment Law – from LaborRelated
• Has NLRB Commenced a Big Anti-Business Push? – from The ChamberPost
• Board Holds Employer’s Discovery Requests in Non-Board Litigation Violated NLRA – from Labor Relations Counsel
• NLRB Social Media Memo Part III - Union YouTube Violation – from Phil Miles’s Lawffice Space
• Bill Would Repeal the NLRB’s Employee Rights Notice Posting Rule – from Labor Relations Counsel
• The NLRB’s Unlawful Rule – from National Review Online

6th Circuit volunteers gift to volunteer employees in coverage under Title VII

Lots of people work for free—volunteers, interns, students, and others all provide their time to businesses without receiving any pay in return. Last week, the 6th Circuit, in Bryson v. Middlefield Volunteer Fire Dep’t, decided whether a “volunteer” (a presumably, the other categories of unpaid workers) qualifies as an employee covered by Title VII. The trial court had concluded that Bryson, a volunteer firefighter, did not qualify under Title VII solely because the Department did not pay him.

The 6th Circuit concluded that merely looking at whether or not a volunteer is paid is insufficient. Instead, employers must also examine the degree of control exercised by the employer over the manner and means by which the work is accomplished. In evaluating the degree of control, employers must look at all of the following factors:

• The skill required
• The source of the instrumentalities and tools
• The location of the work
• The duration of the relationship between the parties
• Whether the hiring party has the right to assign additional projects to the hired party
• The extent of the hired party’s discretion over when and how long to work
• The method of payment
• The hired party’s role in hiring and paying assistants
• Whether the work is part of the regular business of the hiring party
  Whether the hiring party is in business
• The provision of employee benefits
• The tax treatment of the hired party

Because Bryson expands Title VII’s coverage, this case reinforces the idea that employers should not use unpaid help without legal guidance. The DOL is looking over your shoulders. The EEOC is looking over your shoulders. Courts are looking over your shoulders. And, your unpaid help is looking over your shoulders. A misstep in how you categorize employees could be a costly mistaken on these multiple fronts.

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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.

NLRB finally gives some real-world guidance on social media as protected, concerted activity

In the NLRB's final act before the long Labor Day weekend, an Administrative Law Judge in Buffalo, NY, issued his decision in Hispanics United—the first written decision in an NLRB case involving social media to result in an ALJ decision following a hearing.

In Hispanics United, five employees claimed that their terminations—on the heals of a Facebook discussion critical of another employee’s job performance—violated their rights under the National Labor Relations Act to join together to discuss the terms and conditions of their employment. The ALJ agreed:

I conclude that their Facebook communications with each other, in reaction to a co-worker’s criticisms of the manner in which HUB employees performed their jobs, are protected.

The ALJ made several key observations about the Board’s treatment of social media posts as protected, concerted activity:

• “It is irrelevant to this case that the discriminatees were not trying to change their working conditions and that they did not communicate their concerns to Respondent…. I find that the discriminatees’ discussions about criticisms of their job performance are also protected.”
• “[A]n employer violates Section 8(a)(1) in disciplining or terminating employees for exercising this right—regardless of whether there is evidence that such discussions are engaged in with the object of initiating or inducing group action.”
• “Moreover, the fact that Respondent lumped the discriminatees together in terminating them, establishes that Respondent viewed the five as a group and that their activity was concerted.”

This case stands for the proposition that social websites are akin to a digital water cooler. If you wouldn’t discipline for water-cooler talk, then you shouldn’t for social media posts. The difference, though, is that social websites leave a digital trail that makes them tempting fodder for the types of retribution that will result in unfair labor practice charges.

Last month, the NLRB’s Office of General Counsel began to provide some clarity on when and how employees' social media activities are protected. Hispanics United provides added clarity, and should give employers added concern over their ability to regulate their employees’ use of social media inside and outside of the workplace. This case likely will now head to Washington, DC, for disposition by the NLRB. Perhaps we will finally receive some needed guidance from the Board on what has become a beguiling issue for businesses.

(In the meantime, if you want to know about these issues, pick up a copy of Think Before You Click: Strategies for Managing Social Media in the Workplace).

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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.

Pregnancy as disability discrimination: New ADA vs. Old ADA

A year ago, the 6th Circuit concluded that pregnancy-related impairments that are not part of a “normal” pregnancy—such as miscarriage susceptibility—can qualify for protection under the ADA. Late last month, the 7th Circuit—in Serednyj v. Beverly Healthcare—took up the same issue with a different result. Employers looking for help in dealing with pregnant employees should not celebrate too quickly. Because Serednyj’s termination occurred before the ADAAA took effect, its impact will be short-lived.

Serednyj involved a non-FMLA-eligible employee terminated after her doctor placed her on light duty for pregnancy-related complications. The court agreed that Serednyj’s complications constituted a “physical impairment” under the ADA. It upheld the dismissal of her ADA claim, though, because the short-term nature of her pregnancy meant that it did not “substantially limited a major life activity.”

Serednyj claims that her physical impairment substantially limited her major life activities of reproduction and lifting…. Pregnancy is, by its very nature, of limited duration, and any complications which arise from a pregnancy generally dissipate once a woman gives birth. Accordingly, an ADA plaintiff asserting a substantial limitation of a major life activity arising from a pregnancy-related physiological disorder faces a tough hurdle…. Serednyj’s pregnancy-related complications did not last throughout her pregnancy or extend beyond the time she gave birth.

This case is an illusory victory for employers. Under the ADAAA, which took effect January 1, 2009, the effects of a short-term impairment (one lasting fewer than six months) can be substantially limiting. Employers no longer can expect to be helped by the limited duration of any medical condition (including pregnancy). As the ADAAA’s regulations make clear: “the threshold issue of whether an impairment substantially limits a major life activity should not demand extensive analysis.”

Under a current ADA analysis, I have no doubt that Beverly Healthcare should have accommodated Serednyj’s pregnancy complications by granting her light duty. Despite the employer’s victory in this case, businesses should heed it as a warning that the rules for handling all employee medical conditions—including pregnancy—have radically changed.

[Hat tip: The Employer Handbook]

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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.

Happy Labor Day

Like most, I’m off today. The Department of Labor, though, never sleeps. It has an entire micro-site that celebrates today’s holiday:

http://www.dol.gov/laborday/

Happy Labor Day. Enjoy your BBQs. I’ll be back tomorrow with a story on the treatment of pregnancy as a disability under the ADA.

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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 #191 (the “Come on Irene” edition)

Bad puns aside, last weekend was not a good one for the Northeast. Other than an extended power outage, Irene’s worst spared my family in suburban Philly. Others were not so lucky. A Lesson In Social Media from Hurricane Irene, from Dan Schwartz’s Connecticut Employment Law Blog, is a must read for everyone.

As for other stuff to read this week, how about:

• The ABA website, to enter your nominations for the ABA Blawg 100 (until Sept. 9)
• LexisNexis, to enter your nominations for the LexisNexis Top 25 Labor & Employment Law Blogs (until Sept. 12)

You don’t need to vote for me (although it would be nice) but you should vote. I think I can speak for all of my fellow bloggers when I say that we appreciate it.

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

Discrimination

• 10 steps to take when responding to an EEOC complaint – from Business Management Daily
• Will the EEOC Limit Employers from Using Criminal Background Checks? – from i-Sight Investigation Software Blog
• Does Discrimination Still Exist? Of Course It Does – from Donna Ballman at the Huffington Post
• EEOC: drinking history no reason to withhold heavy trucking jobs – from Walter Olson’s Overlawyered
• “Ugly” Ain’t a Protected Class – from Texas Employer Handbook
• 11 Employer FAQs (No. 5): Is there any difference between light duty and reasonable accommodation? – from Robin Shea’s Employment & Labor Insider
• Employer-Sponsored Wellness Programs under GINA – from Employment Matters Blog
• Eyewitness Evidence Critique May Help In Harassment Defense – from Employer Defense Law Blog
• Thou Shalt Not—When Can Religion Be Considered in Employment? – from Iowa Employer Law Blog

Social Media & Workplace Technology

• FINRA Addresses Smart Phone Use by Brokers – from Rob Radcliff’s Smooth Transitions
• If Lady Gaga tweets your trade secret, is it still a trade secret? – from Eric Meyer’s The Employer Handbook Blog
• Trade Secrets on the Internet – from Russell Beck’s Fair Competition Law
• Truthful Blogging = Tortious Interference with Contract? – from Philip Miles’s Lawffice Space
• Employer Blind-Sided by Employee's Inglorious Web Usage – from Case In Point
• Adult Use of Social Media Soars – from Sarah Needleman at the Wall Street Journal’s In Charge Blog
• Do You Do Social Media Background Checks? – from fyiscreening.com
• Private Schools and Social Media – from Brian Wassom’s Augmented Legality
• Social Media Policies are Critical for Managing Online Legal Issues – from Richman Greer Blog

HR & Employee Relations

• What’s the Harm in a Little Workplace Porn? For Starters, Unemployment Benefits. – from Jason Shinn’s Michigan Employment Law Advisor
• Kissing on the Job – from Workplace Prof Blog
• Would You Take A Polygraph To Get A Job? – from Workplace Diva
• Background Checks Gone Wild Hurt Us All – from Nick Fishman at employeescreenIQ Blog
• Don’t Send Conflicting Messages to Employees – from KnowHR
• When Entitlement Meets Unemployment – from Harvard Business Review
• Legal Considerations When Terminating An Employee – from Virginia Employment Law Journal
• You “Tolled” Me My Non-Compete Only Lasts a Year!! – from Trade Secrets & Non-Compete Blog

Wage & Hour

• Interesting Wage & Hour Enforcement Statistics – from Wage & Hour Insights
• Wage & Hour Lawsuits Cost Both Big and Small Companies – from Mike Haberman’s Omega HR Solutions
• You Can’t Make Someone Salaried to Avoid Overtime Payments – from Evil HR Lady, Suzanne Lucas
• Unusual Resume Stories Include Wage and Hour Item – from Wage & Hour Tips
• World’s Scariest Employment Law – from Manpower Employment Blawg
• Survey: Workers Frequently Call in Sick When They Aren’t Sick at All – from TLNT

Labor Relations

• What You Don’t Know About the NLRA Might Hurt You – from Patrick Smith’s Iowa Employment Law Blog
• How Walmart Avoids Unions by Cracking Down on Baby Shower Committees – from Workplace Fairness
• Ohio union law ballot issue faces Monday deadline – from Businessweek
• NLRB Issues Decisions Barring Decertifcation Petitions Following Voluntary Union Recognition, Mergers or Acquisitions – from Seth Borden’s Labor Relations Today
• Blizzard part 2: NLRB Reverses Dana and MV Transportation – from Labor Relations Update

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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.

Can a handbook policy bind an employee to arbitration? 6th Circuit says no.

We spend a lot of time debating the respective merits of fine point of the law. The reality, however, is that judges are people too. Despite their training, robes, and gavels, the decision of many cases comes down to one key fundamental question: did one side treat the other side fairly? Courts don’t like litigants that try to pull a fast one.

Hergenreder v. Bickford Senior Living Group [pdf] provides a perfect example. It also illustrates why arbitration of employment disputes often is a losing battle.

Bickford filed a motion to compel Hergenreder to arbitrate her disability discrimination case under an arbitration clause buried in its employee handbook. Section 12 of the 16-section handbook—for which Hergenreder had signed an acknowledgment that she had read and understood its terms—provides as follows: “Dispute Resolution Process  Please refer to the Eby Companies Dispute Resolution Procedure (DRP) for details.” The separate, 20-page DRP, in turn, required that employees submit all claims to arbitration. The employee testified that she never saw the DRP, let alone signed for it.

The court concluded that simple inclusion of a reference to the DRP in the handbook did not constitute a binding and enforceable contract between Hergenreder and Bickford to arbitrate all employment claims:

The best Bickford can say is that Hergenreder was informed that, for “Employee Actions,” she should “refer” to the DRP. In Bickford’s view, Hergenreder “was or should have been aware of the DRP and so is bound by it.” Yet she was not required to refer to the DRP; the “handbook does not constitute any contractual obligation on [Hergenreder’s] part nor on the part of Bickford Cottage[.]”

[T]here is no evidence that the DRP was “posted” in a place—either physical or electronic—available to Hergenreder, that there were meetings at which Hergenreder was notified of the policies, or that Hergenreder was aware of the DRP at all…. Bickford does not argue that it actually distributed or made the DRP available to Hergenreder.

Employers, if you are going to require employees to arbitrate their claims against you, do yourself a favor and at least have the employee sign a separate arbitration agreement. You might succeed on enforcing an alternative form of an alternative dispute resolution agreement (such as a handbook clause). But, you will spend the money you perceive you are saving through arbitration by trying to enforce your right to arbitrate.

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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.

NLRB gifts huge victory to unions, and against secret-ballot elections (Lamons Gasket)

Generally, a union can become employees’ exclusive bargaining representative in one of two ways: a secret ballot election following a presentation of signed cards by more than 30% of the bargaining unit members, or a presentation of signed cards by more than 50%. An employer, however, does not have to recognize a union based solely on a majority of signed cards, and can require a secret-ballot vote overseen by the NLRB. Some card checks, however, are done by agreement whereby the employer recognizes the union upon the showing of a card majority and/or the employer remains neutral during the union’s organizational campaign.

In Dana Corp., decided in 2007, the NLRB established that employees always have a right to a secret ballot election. The Board held that when an employer voluntarily recognizes a union based on a card-check, the employer must post a notice of the recognition and of employees’ opportunity to file for an election to decertify the union or in support of a rival union within 45 days of the notice. If within that 45-day window 30% of the bargaining unit members produce evidence that they support decertification, the NLRB will hold a secret ballot election. The NLRB adopted this rule “to achieve a ‘finer balance’ of interests that better protects employees’ free choice.”

Yesterday, however, in Lamons Gasket Co. [pdf], the NLRB reversed Dana Corp. and did away with post-card-check decertification elections.

In reaching its conclusion, the majority relied upon statistical evidence of requests for Dana notices and resulting decertifications:

• As of May 13, 2011, the Board had received 1,333 requests for Dana notices.
• In those cases, employees filed 102 election petitions, resulting in 62 elections.
• In 17 of those elections, the employees voted against representation by the voluntarily recognized union.

The Board argued that Dana is unnecessary because employees successfully decertified the voluntarily recognized union in only 1.2% of the total cases in which Dana notices were requested. I look at the numbers differently. Dana is needed because 27% of cases in which elections were held resulted in decertifications. It is intellectually dishonest to draw conclusions from the 98.8% of cases in which no further action was taken and which we know nothing about.

I can also offer anecdotal evidence of the need for Dana. I was one of the successful Dana elections. In my case, the employees presented a nearly-unanimous showing of cards. After the Dana posting, 21 out of 33 employees signed a petition for a decertification election. The entire unit voted, resulting in decertification by a vote of 17-16. In other words, the card check did not accurately represent the employees’ free choice.

For this reason alone, Dana is an important rule that is needed to ensure that employees always have the opportunity to exercise and express their free choice about unionization through a secret ballot election. If we can use a Dana election to ensure that employees have the right to have their voices heard in a secret ballot election, what’s the harm?

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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.

“Never pick a fight with an ugly person, they’ve got nothing to lose.”*

In Sunday’s New York Times, University of Texas economics professor Daniel Hamermesh penned an op-ed entitled, “Ugly? You May Have a Case.” He argues that the law should protect “ugly” the same as race, sex, and disability. Here’s his thesis:

[B]eing attractive … helps you earn more money…. The effects are not small: one study showed that an American worker who was among the bottom one-seventh in looks, as assessed by randomly chosen observers, earned 10 to 15 percent less per year than a similar worker whose looks were assessed in the top one-third—a lifetime difference, in a typical case, of about $230,000.

How could we remedy this injustice? … A more radical solution may be needed: why not offer legal protections to the ugly, as we do with racial, ethnic and religious minorities, women and handicapped individuals?

The lawyer in me says, “Ca-ching!” The management advocate in me says, “Wait, what?!” The good-looking-but-won’t-stop-you-dead-in-your-tracks-good-looking-guy says, “This might make sense.” And the realist in me says, “Can you imagine a more subjective, unworkable standard for discrimination litigation?”

In all seriousness, Professor Hamermesh, you got your name in the Sunday Times. Now go back to Austin and never let this silliness see the light of day again. Thank you.





[Hat tip: ABA Journal]

*Robin Williams

“May” I have another (lawsuit)? One word sinks employer’s efforts to force arbitration

It’s no secret that I’m not a fan of arbitration of employment disputes. Conventional wisdom says that binding arbitration keeps down costs and speeds up resolutions. I’ve yet to be convinced. Many employers, though, continue to drink the arbitration Kool-Aid by requiring employees sign alternative dispute resolution agreements as part of their employment. Sherwin-Williams appears to be one of them. Its choice of one key word in its Problem Resolution Procedures, however, cost the paint company its chance to litigate an ex-employee’s age discrimination claim in its forum of choice.

The word at issue in Hyde v. Sherwin-Williams Co. (8/25/11) [pdf] is “may.” Sherwin-Williams’s Problem Resolution Procedures provide:

These procedures may be used by employees to challenge the unresolved differences regarding application of Company policies, procedures or practices which affect their employment situation. These procedures are intended to be an exclusive, final and binding method to resolve all covered claims to the fullest extent permitted by law. Failure to use these procedures may preclude employees from pursuing any other legal right they may have in court or in other forums.

An Ohio appellate court concluded that the use of the word “may” disposed of Sherwin-Williams’s attempt to force an ex-employee to litigate his age discrimination claim in court:

We find that Sherwin-Williams’ repeated representations that an employee’s failure to follow the PRP “may” preclude that employee from seeking redress in outside forums expressly contradicts appellants’ position that the procedures outlined in the PRP are the exclusive method for resolving employee disputes. By virtue of the language used … appellants implied that there would be circumstances where an employee would not be prevented from pursuing resolution of their legal claims in outside forums, i.e., that the PRP procedures are not mandatory, final, or binding.

What’s worse for Sherwin-Williams is that 8 years ago another panel of the same appellate court reached the same conclusion about the same language in a prior version of the same PRP.

What’s the takeaway from this case for employers? In drafting agreements and policies, words matter. If you mean “must,” say it. Don’t say “may” (especially when a court has already told you that “may” doesn’t pass muster).

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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 #190 (the “Network” edition)

I love Twitter. Why, you ask? Because it routines scoops the major news outlets for breaking stories.

Tuesday was a perfect example. I felt my building shake at 1:51 pm. My first reaction was that The Avengers set a few blocks down the street had blown up something big, but the sway was too pronounced and too long to have resulted from a man-made Hollywood explosion. I immediately turned to Twitter, and confirmed what I had thought—it was an earthquake. With the click of mouse and the scroll of bar, I learned in an instant that my colleagues and friends all up and down the east coast had, to varying degrees, felt what I had felt. CNN had the story 10 minutes later, and Cleveland.com a few minutes after that. Who needs the news when you have Twitter?

And now for something completely different…

I’d be remiss if I didn’t remind everyone that nominations are still open for the ABA Blawg 100 (until Sept. 9), and the LexisNexis Top 25 Labor & Employment Law Blogs (until Sept. 12). Thanks to everyone who’s voted for me so far, or will vote over the next couple of weeks.

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

Discrimination

• Creating an Evacuation Plan in Light of the Earthquake? Don’t Forget the ADA – from SmartHR
• Economic Damages in Wrongful Termination Litigation – from Stephanie Thomas’s The Proactive Employer Blog
• The Dangers of Looking the Other Way: Dominique Strauss-Kahn and Sexual Harassment – from Jason Shinn’s Michigan Employment Law Advisor
• “Drinking is a ‘handicap,’ fired former Florida State administrator says” – from Walter Olson’s Overlawyered
• How to Get Sued Big Now – from Manpower Employment Blawg
• The Old “Too Ugly” Defense… – from Tim Eavenson’s Current Employment
• I Was Treated Differently From My Coworkers. Can I Sue For Discrimination? – from Donna Ballman’s Screw You Guys, I’m Going Home
• Pregnancy Discrimination Still a Major Issue – from i-Sight Investigation Software Blog
• Is it lawful to not hire a pregnant woman because she’ll need time off for maternity leave? – from Heather Travar

Social Media & Workplace Technology

• Breaking News: Steve Jobs Resigns From Apple – from Social Axcess
• A short history of social media (infographic) – from Kevin O’Keefe’s Real Lawyers Have Blogs
• Merriam-Webster Dictionary Now Includes ‘Tweet’, ‘Social Media’, ‘Crowdsourcing’ And More – from Techcrunch
• How Much Of Our Personal Lives Should Be Under Employer Surveillance? – from Kashmir Hill’s The Not-So Private Parts
• Two Weeks Without My Smartphone – from In-house ACCess
• Portability of Social Media Accounts: Here's Your Poster Child Example… – from The HR Capitalist, Kris Dunn

Employee Relations & HR

• Want to be on the Real World? Think twice. – from Rob Radcliff’s Smooth Transitions
• I’m Not In Love, So Why Do My Knees Feel Weak? Workplace Crisis Management – from Delaware Employment Law Blog
• Hurricane Preparedness in Connecticut: Come On Irene?– from Dan Schwartz’s Connecticut Employment Law Blog
• Use of Background Checks Requires Common Sense – from Michael Haberman’s Omega HR Solutions
• Considering the Unlimited Vacation Route: Risks & Benefits – from Ann Bares at Compensation Force
• Can my employer stop me from using the bathroom? – from Ask a Manager

Labor Relations

• Chef Mickey’s Server Alleges Unfair Firing over $63 – from DIS Unplugged Blog
• Tweet freely! Employers get some guidance about social media – from Robin Shea’s Employment & Labor Insider
• Even in the Internet Age, You Can’t Call Your Boss a ‘Super Mega Puta’ – from Above the Law
• The federal labor law guide to social media (non)compliance – from Eric Meyer’s The Employer Handbook Blog
• NLRB Social Media Memo Part I - NLRA-Protected Acts and Part II - Unprotected Conduct – from Philip Miles’s Lawffice Space
• Social Media Clarity or More Murky Water From the NLRB? – from Minnesota Labor & Employment Law Blog
• Bosses React To Workers’ Anti-Social Networking – from Wall Street Pit

Wage & Hour

• Which Employment Law Would You Vaporize? – from Russell Cawyer’s Texas Employment Law Update
• Can An Employer Pay An Exempt Employee Extra Compensation? – from Wage & Hour Insights
• 4-Part Test Announced for Distinguishing Unpaid Sabbatical and Paid Vacation Leave – from Joe’s HR and Benefits Blog
• 4th Circuit Restricts Scope of FLSA Retaliation Protection – from Workplace Prof Blog
• Second Circuit Analyzes Scope of Material Adverse Employment Actions in a Family Medical Leave Act Retaliation Claim – from Employment Matters Blog
• Employee Who Abused FMLA Leave Around the Holidays Properly Terminated – from FMLA Insights

Until next week:

(Network has aged extremely well. 1976 could easily be 2011. It was eerily prescient.)

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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.

BREAKING: NLRB publishes final rule on mandatory posting of labor rights

Last December, the NLRB proposed a rule requiring employers to post notices informing their employees of their rights as employees under the National Labor Relations Act. This morning, the NLRB published its Final Rule [pdf] mandating this posting. The notice (pages 185 – 190 of the Final Rule) provides a comprehensive list of employee’s rights under the NLRA, including their right to act together to improve wages and working conditions, to form, join and assist a union, to bargain collectively with their employer, and to choose not to do any of these activities. It also provides examples of unlawful employer and union conduct, and instructs employees how to contact the NLRB with questions or complaints.

Here is what the NLRB wants employers to know about the mechanics of this new posting requirement:

• It takes effect November 14, 2011.
• It is mandatory for all employers who are subject to the NLRA—union and non-union (which is nearly all private sector businesses).
• Beginning November 1, each NLRB regional office will be able to provide a copy of the notice free of charge, or employers can print it directly from www.nlrb.gov.
• The NLRB will also make translated versions available, which must be posted at workplaces where at least 20% of employees are not English-proficient.
• Employers also must post the notice on an intranet or an internet site if they customarily post personnel rules and policies there.
• The rule has no record-keeping or reporting requirements.
• The NLRB may treat any failure to post as an unfair labor practice.

Non-union employers, how do you feel about having to tell your employees that they have the right to form a union? That’s what I thought.

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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.

Keeping head in sand risky to employers in discrimination cases

I’ve written before about the honest-belief rule—if an employer honestly believed in the proffered reason for its action, an employee cannot establish pretext, even if the employer’s reason is ultimately found to be mistaken, foolish, trivial, or baseless. Jones v. Nissan N. Am. (6th Cir. 8/19/11) [pdf] illustrates that an employer’s honest belief, though, cannot coexist with a disregard of the cold, hard facts.

In Jones, the employer argued that it could not be liable for an ADA violation by refusing to return an injured employee to work because it held an honest belief that an order of the workers’ compensation court prohibited the employee’s return. The Court disagreed:

Nissan’s defense … was based on the premise that Nissan imposed unsubstantiated medical restrictions on Jones because it believed the chancellor’s decision and order required it to do so…. In the instant case, however, notwithstanding Nissan’s arguments to the contrary, it is clear beyond peradventure that the chancellor’s order did not direct Nissan to restrict Jones from continuing in the trim-fit position he was performing at the time of the workers’ compensation trial. The order only directs Nissan to pay certain benefits…. Most glaringly, Nissan concluded that Jones was restricted from using “hand tools,” despite the fact that the chancellor did not make a single finding with regard to Jones’s ability to use hand tools in his job.

Courts give wide latitude to employers who make informed decisions based on all available facts and circumstances. As this case illustrates, employers who ignore the facts, or fail to make a thorough investigation to uncover all reasonably available facts, don’t fair so well. Strive to be the former; do not succumb to the ease of the latter.

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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.

Why people hate lawyers

Suppose you apply for a job. The job has certain dress code requirements for all employees. You, however, think the mandatory clothing will look unflattering on your over-40-year-old body. Do you…

1. Look for a different job?
2. Apply anyway and deal with the requirements?
3. Sue for age discrimination?

If you’re most people, you choose either of the first two options. If you’re attorney Roy Lester, however, you opt for number three.

When the New York Office of Parks, Recreation, and Historic Preservation refused to hire 58-year-old Lester as a lifeguard, he sued, claiming age discrimination. The lawyer-by-day claims that the job requirement that he wear certain swimwear discriminates against him because of his age. From CNN.com:

The rule, still in operation, requires that to be re-hired as a lifeguard, participants must wear either “boxers, briefs or board shorts” when completing a qualifying swim test…. Lester who believes that “as you age you should show less skin” prefers jammers; tight lycra shorts that end a couple of inches above the knee. The bankruptcy attorney claims “Speedos are not appropriate for a 61-year-old” and refused to wear loose-fitting shorts because they would slow him down.

According to the Wall Street Journal’s Law Blog, “Peter Brancato, spokesman for New York state’s Office of Parks, Recreation and Historic Preservation, [said] that there never was a policy specifically requiring lifeguards to wear Speedos. For the annual swim test, lifeguards are required to wear regular work gear, which for men could be a Speedo, a boxer-type swimsuit or a board suit.”

In other words, the employer subjected Lester to the same dress code as every other employee and applicant. Guess what? That’s not age discrimination, even according to the EEOC: “In general, an employer may establish a dress code which applies to all employees or employees within certain job categories.” Exceptions include dress codes that conflict with an employee’s religious practice or disability. The law makes no such exception, however, for an employee’s age.

(An appellate court just reinstated Lester’s claim, following a dismissal by the trial court. That fact does not make me think his claim is any less ridiculous).

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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 garners $2.6 million fee award … but not how you think

A Michigan federal judge has slammed the EEOC for its “reckless sue first, ask questions later strategy.” After 11 years of litigation, the court awarded the EEOC’s target, Cintas Corporation, $2,638,443.93 in attorneys’ fees, costs, and expenses from the agency.

The court justified its astronomical award based on the EEOC’s failure to investigate before filing suit, and dilatory tactics before and after filing suit:

• The EEOC did not investigate the specific allegations of any of the thirteen allegedly aggrieved persons until after the Serrano plaintiffs filed their initial complaint, and after it filed its own complaint years later.
• The EEOC did not engage in any conciliation measures as required by § 706 prior to filing suit on behalf of the named Plaintiffs.
• The EEOC did not identify any of the thirteen allegedly aggrieved persons as members of the “class” until after the EEOC filed its initial complaint.
• The EEOC failed to make an individualized reasonable cause determination as to the specific allegations of any of the thirteen named plaintiffs in this action….

During the course of its involvement in this case, the EEOC filed, and lost, over a dozen motions. Furthermore, Cintas was forced to file a number of motions because of the EEOC’s failure to properly respond to Cintas’ discovery requests. Cintas succeeded on all of these motions, and the EEOC’s conduct served only to prolong this decade-long litigation…. In his March 2, 2010 Order Granting Motion to Compel, Magistrate Judge Scheer stated, “There appears to be no purpose for [the EEOC’s] position [to withhold the questionnaires] other than to increase the difficulty and expense of the defense of this action by Cintas.”

Employers, if you’ve ever been sued by the EEOC, you know it is never fun to be in its crosshairs. Unlike you, the agency does not pay lawyers to litigate for it, and has seemingly unlimited resources to make your lives a living hell. Take heart, though, that there are judges who will hold the EEOC’s feet to the litigation fire. As this case illustrates, it is possible to beat the EEOC at its own game. But, it’s going to take perseverance.

A copy of the Court’s 31-page opinion is available here.

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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.

LexisNexis nominates the Ohio Employer’s Law Blog for consideration as one of the top 25 Labor & Employment Blogs

I am pleased to announce that LexisNexis has honored me by naming the Ohio Employer’s Law Blog to its list of nominees for the Top 25 Labor and Employment Law Blogs:

Each year, LexisNexis honors a select group of blogs that set the online standard for a given industry. This year, we’ve expanded Top Blogs to our Labor and Employment Law Community. We’ve been fortunate to host the content of a number of distinguished legal professionals who have shared their insights and expertise with our Community, and through the process of seeking what we consider to be “top blogs,” we have discovered many more.

Here’s where the hard part comes in. LexisNexis is asking for your help to whittle the initial list of 59 down to the final list of the top 25 labor & employment blogs. If you have something nice to say about my blog, or any of the other deserving nominees (including my six contributors to Think Before You Click…), please take a minutes to submit your comments to LexisNexis. LexisNexis will consider all comments submitted through September 12 in compiling its top 25 list. At that point, LexisNexis will open the top 25 to voting to select the Top Labor and Employment Blog of the Year.

Thank you, LexisNexis, for including me. And, thank you to any of my readers who take the time to drop LexisNexis a note on my behalf. And, lastly, thanks too to anyone who has taken the time to nominate my blog to the 2011 ABA Blawg 100.

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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.