Vague complaint dooms employee’s retaliation lawsuit

Susanne Pintagro worked for Sagamore Hills Township as an administrative assistant. When a newly hired intern made her feel “uncomfortable and concerned for [her] safety” she took her concerns to the township’s trustees. The trustees determined that because Ms. Pintagro and the intern had to work the same schedule, and gave her the choice of resignation or termination. After Ms. Pintagro resigned, she sued, claiming, among other things, that the township retaliated against her for reporting the intern’s workplace harassment.

In Pintagro v. Sagamore Hills Twp. (Ohio Ct. App. 5/23/12), the court of appeals affirmed the dismissal of her retaliation claim. It concluded that Ms. Pintagro had not engaged in protected activity sufficient to raise the protections of Ohio’s anti-retaliation statute:

It was Ms. Pintagro’s burden … to establish that she engaged in a protected activity, that is, to demonstrate that she “opposed an unlawful discriminatory practice” such as harassment because of her “race, color, religion, sex, military status, national origin, disability, age, or ancestry.” …

Ms. Pintagro also has not presented any authority for her argument that a court should infer discriminatory intent when an employer fails to investigate a claim of workplace harassment…. Even assuming that [the] actions constituted harassment, it is as likely that his conduct was motivated by a personality conflict or other non-discriminatory reasons as it is that it was motivated by prejudice.

In other words, because Ms. Pintagro could not prove that she complained about unlawful harassment, her retaliation claim failed.

Repeat after me:

We will not do what Sagamore Hills Township did in this case.

When an employee comes to you with a complaint about a co-worker, do not ignore it, do not fail to investigate it, and do not fire the employee (or force her to resign). Yes, you might successfully defend a subsequent retaliation lawsuit based on the vagueness of the complaint. But, you might also step in a huge pile. This court refused to interpret a woman’s complaint than a man made her “uncomfortable and concerned for [her] safety” as a complaint about sexual harassment. Another court, however, could just as easily conclude that a jury should have the final say in interpreting that complaint.

Constructive discharges cannot exist in a vacuum of illegality

A constructive discharge occurs when an employer’s actions make an employee’s working conditions so intolerable that a reasonable person under the circumstances would feel compelled to resign. Usually, a constructive discharge arises in the context of a discrimination lawsuit, satisfying the “adverse action” necessary to support the claim.

What happens, though, when there is no connection between the resignation and the law alleged to have been violated. Can an employee claim that a constructive discharge occurred in this vacuum? Kemper v. Springfield Twp. (Ohio Ct. App. 6/6/12), says no.

Patrick Kemper worked as a patrolman for the Springfield Township police department. The department had a formal policy requiring employees to submit a written request, and receive written permission, before engaging in outside work. Kemper planned to start a side security business. He discussed the idea with his supervisor, Chief David Heimpold, who told him that there would have to be precautions to prevent any conflict with police business. A few months later, Kemper submitted a letter to the department misstating that Heimpold had given permission to operate the business. When the township administrator, Michael Hinnenkamp, confronted Kemper with his lie, and with the prospect of an internal investigation, likely termination, and the loss of his pension and benefits, he resigned.

Kemper sued, claiming a constructive discharge related to an FMLA leave he was taking at the time. The jury awarded Kemper $491,000. The court of appeals agreed that the township had constructively discharged Kemper:

Hinnenkamp let it be known that any disciplinary proceeding would in all likelihood end in termination and that Kemper would lose his pension and other benefits…. Kemper had reasonably believed termination to be a foregone conclusion….

The court concluded, however, that the constructive discharge was lawful: 

But our inquiry does not end with the conclusion that Kemper produced sufficient evidence with respect to the alleged constructive discharge. A plaintiff must also establish a connection between the exercise of FMLA rights and the adverse employment action…. All of the evidence demonstrated that Kemper’s acknowledged dishonesty was the basis for the challenged discharge. There was no threat of discipline prior to the letter submitted to Heimpold and no indication in the record that Kemper's absences—or the conditions that led to those absences—bore any relationship to the adverse employment action.

Employees resign all the time, sometimes for reasons related to poor treatment by their employers. As this case makes clear, unless that poor treatment is connected to protections provided by the law, the resignation cannot form the basis for a lawsuit.

Know when to fish, and when to cut bait

I spent last week on Hilton Head Island, South Carolina. If you’ve never been there, do yourself a favor a take a trip. It's about as perfect of a vacation spot you can find in the continental 48 (see sunset below).

On the last day of our vacation, my family took a dolphin cruise through the Calibogue Sound. It was a hands-on trip for the kids. They got to cast a fishing net, pull up a crab pot, and fish for shark. The ship’s captain told us that they usually catch a lot of shark. For example, the day earlier they had reeled in 19, including two baby hammerheads. So, it was with much excitement that my daughter cast her line into the sound. After about 5 minutes (an eternity for a 6-year-old) she started asking when she would catch her shark. My wife explained that fishing is more about patience and relaxation than actually catching fish. As you would imagine, that did not go over so well with my newly minted 1st grader, although she did stick with it and enjoyed the experience. We, however, were not the only ones having issues. The captain moved the boat to what he hoped would be more fertile water. It wasn’t. She moved again, hoping the third time would be the charm. It wasn’t, and she had to call it a day. Indeed, on our cruise, only one lone shark was reeled in (by the boy next to us, much to my daughter’s chagrin).

As I am wont to do when I am not blogging, I began to think about what this tale could teach you, my readers. Much like fishing, in dealing with marginally performing workers, employers must know when to fish and when to call it a day. And, much like our ship’s captain, you usually don’t quit at the 1st sign of failure.

Employees are investments—of time, training, salary, and benefits. Unless an employee commits an egregious violation of the rules that cannot be tolerated, most deserve multiple chances to prove themselves worthy. Performance problems are not terminable offenses; they are teaching opportunities. Use them to hone your employees, and only terminate when an employee proves himself or herself un-teachable. You will be surprised how many employees you can rehabilitate (and investments you can save) merely by resisting the urge to cut bait too early on your marginal performers.

I’ll miss experiencing the sunsets at Harbour Town, but I’m happy to be home, and, believe it or not, happy to be back at work.

(If you’re interested in reading more about our vacation—and who wouldn’t be—you can jump over to my wife’s blog).

Best of: Despite what some think, employers do not set out to discriminate

Despite what some think, employers do not set out to discriminate:

http://www.ohioemployerlawblog.com/2012/03/despite-what-some-think-employers-do.html

Best of: 10 thoughts for your mobile device policy

10 thoughts for your mobile device policy:

http://www.ohioemployerlawblog.com/2012/02/10-thoughts-for-your-mobile-device.html

Best of: Disability discrimination law in Ohio is a mess

Disability discrimination law in Ohio is a mess:

http://www.ohioemployerlawblog.com/2012/01/disability-discrimination-law-in-ohio.html

See also Courts are finally starting to apply ADAAA—and it ain’t pretty:

http://www.ohioemployerlawblog.com/2012/03/courts-are-finally-starting-to-apply.html

Best of: “Friending” co-workers depends on your level of organizational risk tolerance

“Friending” co-workers depends on your level of organizational risk tolerance:

http://www.ohioemployerlawblog.com/2012/01/friending-co-workers-depends-on-your.html

See also Latest stats about supervisors being “Facebook friends” with employees reveals interesting generational data:

http://www.ohioemployerlawblog.com/2012/02/latest-stats-about-supervisors-being.html

Best of: Trying to make sense of the NLRB’s lastest social media missive? Good luck

Trying to make sense of the NLRB’s lastest social media missive? Good luck:

http://www.ohioemployerlawblog.com/2012/01/trying-to-make-sense-of-nlrbs-lastest.html

WIRTW #228 (the “Sound Odyssey” edition)

Where were you in 1983? I was in the 5th grade at Loesche Elementary School in Northeast Philly. I’ll get back to 1983 in a second.

Today is my daughter’s last day of kindergarten. Her (amazing) teacher (see #13 below) assigned the class a time capsule project. Each child had to answer 14 questions, which, along with a letter from mom and dad, will be sealed in a time capsule, to be opened at their graduation in 2024. Here’s my daughter’s submission:

When I posted this photo to Facebook, one of my grade school classmates reminded me of the time capsule our 5th grade class buried in 1983. He even had the article from The Jewish Times discussing the project (page 1 / page 2). For the record, I sacrificed the instruction manual from our Smurfs ColecoVision game. I’m not sure what’s more shocking, that I’m admitting to owning a Smurfs game, or that people paid $569.99 for a VCR (check out the Sound Odyssey ad at the bottom of page 2, and bonus points to anyone who can name any other store that was in the Leo Mall).

I am taking a much needed vacation next week. Enjoy some of my greatest hits spanning the past 6 months. I’ll be back on June 11 with brand new content.

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Thanks to Tom Mighell for featuring me on Wednesday as the Blawg of the Day at Inter Alia. Tom’s blawg is one of the originals, dating all the way back to 2002. It’s always nice to be recognized by one of the trailblazers.  

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

Discrimination

• Employee “loses track of time” due to disability — from Walter Olson’s Overlawyered
• Up in smoke: Hopes of ADA protection for medical marijuana use are dashed … for now, anyway — from Robin Shea’s Employment and Labor Insider
• The ADA does not protect medical-marijuana use, but… — from Eric Meyer’s The Employer Handbook Blog
• USERRA’s Statute of Limitations — from Molly DiBianca’s Delaware Employment Law Blog
• Crude, Bullying, and Despicable Workplace Conduct Does not Create Hostile Work Environment based on Sexual Harassment — from Jason Shinn’s Michigan Employment Law Advisor
• Company’s wording of termination letter, which mentioned employee’s disability leave, was direct evidence of discrimination — from Employment Law Matters
• ‘The Bachelor’ and ‘The Bachelorette’: Inside the Racial Discrimination Lawsuit — from Jennifer Pozner at The Daily Beast

Litigation

• Surprise! Study Finds That Everyone Hates Employment Litigation — from Mark Toth’s Manpower Employment Blawg
• You’re Damned if You Don’t Take the Right Steps After Being Sued — from damnedif
• Litigation is Not War, Nor Should it Be — from San Antonio Employment Law Blog

Social Media & Workplace Technology

• Trash Your Social Media Policy — from Heather Bussing at HR Examiner
• NLRB Releases Memo on Social Media Policies — from Phil Miles’s Lawffice Space
• Homeland Security reveals hundreds of words that could put you on their online watch list — from Boy Genius Report
• Who Owns Social Media? Risk Management? — from SocialFish
• The Password Debate: What’s an Employer to Do? — from Technology for HR
• Michigan Federal Court Adopts Narrow Interpretation of Civil Liability Under Computer Fraud and Abuse Act — from Trading Secrets

HR & Employee Relations

• Summer Reading: Is the “Mommy Porn” in “Fifty Shades of Grey” Workplace Safe? — from Dan Schwartz’s Connecticut Employment Law Blog
• How to handle sexual misconduct at work — from Evil HR Lady, Suzanne Lucas
• What the 1990s taught us about abusive work environments — from David Yamada’s Minding the Workplace
• Watch Where You Turn Up the Volume — from New York Times
• Treat Your Terminations as “For Cause” (Even When They’re “At Will”) — from Litigation PostScript
• Can Task-Based Employment Really Work? — from The Proactive Employer Blog
• Whistleblowers: Why you should heed their warnings — from Fortune
• Employee Handbook Version 2.Awesome — from Workplace Prof Blog
• Dear Evil Skippy: I Caught My “Temporarily Disabled” Employee Out Shopping — from Evil Skippy at Work

Wage & Hour

• 5 Steps to Better Wage & Hour Law Compliance — from Blogging4Jobs
• Wage and Hour Violations in the New Economy: A Tricky Business for Employers and Employees Alike — from Employment Lawyer Blog
• What Is A “9/80” Pay Plan? — from Wage and Hour Laws Blog
• Paycheck Fairness Act Moves Forward — from Washington D.C. Employment Law Update
• Fairness Doctrine — from We Know Next
• In FMLA-leave cases, here’s why employers' counsel always should depose the family member the employee claims needs to be “cared for” — from Mike Maslanka’s Work Matters
• Must an Employer Designate FMLA Leave When the Employee Does Not Want to Use FMLA Leave, or When the Employee Fails to Mention FMLA? — from Jeff Nowak’s FMLA Insights

Labor Relations

• Unions Restrict What Workers Can Get Paid — from Michael Haberman’s Omega HR Solutions
• Appellate Court Credits Employer’s Challenge of Mock Card Check Ceremony During Union Campaign — from Labor Relations Counsel

NLRB’s position on social media policies remains a bungled mess

Oh! what a tangled web we weave
When first we practice to deceive!
– Walter Scott, Marmion, Canto VI, Stanza 17 (1808)

Yesterday, NLRB Acting General Counsel Lafe Solomon issued his third report on social media cases brought to the agency [pdf]. This report focuses entirely on “policies governing the use of social media by employees.” If you read the employment law blogs today, my guess is that you will find a whole bunch of management-side employment bloggers critical of Mr. Solomon (Molly DiBianca, Eric Meyer, and Dan Schwartz, for starters). Allow me to add my name to the mix. I apologize in advance for my treatise-length post.

As you might recall, I was very critical of Mr. Solomon’s 2nd report in its treatment of employer policies. Has the Acting GC solved any conundrums for employers with his latest missive? Can a company draft a social media policy with any teeth that the NLRB will conclude passes muster? Don’t count on it. In fact, Mr. Solomon's latest missive is as galling of a piece of legal analysis I have ever read. It's nothing short of intellectual dishonesty masquerading as hair splitting. How else can you explain the following razor-thin distinctions?

• A policy that prohibits the “release [of] confidential guest, team member or company information” is illegal, but a policy that cautions employees to be suspicious when asked to disclose confidential information is okay.
• This policy is illegal: “When in doubt about whether the information you are considering sharing falls into one of the [prohibited] categories, DO NOT POST. Check with [Employer] Communications or [Employer] Legal to see if it’s a good idea.” And this policy is illegal: “Offensive, demeaning, abusive or inappropriate remarks are as out of place online as they are offline" are illegal.” Yet, this policy is legal: “Employees should avoid harming the image and integrity of the company and any harassment, bullying, discrimination, or retaliation that would not be permissible in the workplace is not permissible between co-workers online, even if it is done after hours, from home and on home computers”.
• “Get permission before reusing others’ content or images” is illegal, while “Respect all copyright and other intellectual property laws. For [Employer’s] protection as well as yours” is legal.

Other baffling illegal policies?

• “Think carefully about ‘friending’ co-workers.”
• “Report any unusual or inappropriate internal social media activity.”
• “Don’t comment on any legal matters, including pending litigation or disputes.”
• “Adopt a friendly tone when engaging online. Don’t pick fights…. Remember to communicate in a professional tone…. Don’t make any comments about [Employer’s] customers, suppliers or competitors that might be considered defamatory.”
• “You are encouraged to resolve concerns about work by speaking with co-workers, supervisors, or managers.”
• “Avoid harming the image and integrity of the company.”

Mr. Solomon also invalidated various “savings clauses,” including one that provided:

This policy is for the mutual protection of the company and our employees, and we respect an individual’s rights to self-expression and concerted activity. This policy will not be interpreted or applied in a way that would interfere with the rights of employees to self organize, form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection or to refrain from engaging in such activities.

This unlawful policy is not all that different from the workplace posting that the NLRB wanted to have in every break room in America, yet it’s not good enough for any employer’s social media policy? Where is the logic and consistency? This is the exact breed of intellectual relativism that makes me furious.

Here’s the kicker. If challenged, Mr. Solomon would have to take issue with his own agency’s internal social media policy. Thanks to Mike VanDervort’s The Human Race Horses and Human Resources Executive Online, we can take a peek at the NLRB’s own social media policy, which prohibits: “Comments that the NLRB Office of Public Affairs deems inappropriate.” How is the NLRB’s own policy substantively different than any of the policies Mr. Solomon thinks are overly restrictive of employees’ rights to engage in protected concerted activity?

So, what’s the takeaway? The NLRB’s position on social media policies remains an absolute mess. If anything, it’s more confusing now than before Mr. Solomon issued his 3rd report. Employers need to be able to adopt bright line rules to guide their employees towards proper conduct. Yet, this report puts employers in the dangerous position of being fearful of drawing even the simplest of lines. The result, I’m afraid, is that businesses won’t adopt any rules, creating online anarchy among their employees.

As a emerging communication tool, social media is unstructured enough. Do we really want to create unnecessary legal impediments to disincentivize employers from drafting the rules their employees desperately need?

Perhaps the answer for employers lies in this policy, which Mr. Solomon concluded was lawful:

Use your best judgment and exercise personal responsibility. Take your responsibility as stewards of personal information to heart. Integrity, Accountability and Respect are core [Employer] values. As a company, [Employer] trusts—and expects—you to exercise personal responsibility whenever you participate in social media or other online activities. Remember that there can be consequences to your actions in the social media world—both internally, if your comments violate [Employer] policies, and with outside individuals and/or entities. If you’re about to publish, respond or engage in something that makes you even the slightest bit uncomfortable, don’t do it.

Think before you click? My four-word social media policy might be a whole lot closer to reality.

Epilogue: If you scroll down to the last 3 pages of Mr. Solomon’s report, you will find a form social media policy on which the NLRB signed off. If you want to err on the side of abundant caution, this policy is the one you should be using (with the input of your attorney). Until the federal courts weigh in on this issue, however, we will have to live in world of uncertainty over the permissible scope, reach, and breadth of social media and other workplace communication policies.

BREAKING: NLRB issues 3rd report on social media

Hot off the presses, NLRB Acting General Counsel Lafe Solomon has issued his third report on social media cases brought to the agency [pdf]. This report focuses entirely on “policies governing the use of social media by employees.” I am digesting the report and will share my thoughts first thing tomorrow morning. Here’s a preview: if you are holding your breath for a sign that the NLRB will allow employers to draw lines to guide employees about what’s right and wrong (or permissible and impermissible), you will suffocate.

Time to re-read your non-competition agreements; Ohio Supreme Court issues ruling on enforceability by successors

Acordia of Ohio, L.L.C. v. Fishel [pdf], decided last week by the Ohio Supreme Court, is a pretty straight-forward case. In this case, four ex-employees claimed that Acordia could not enforce their non-competition agreements. They argued that the under the plain language of their covenants, the agreements were limited to the predecessor employer, and that there were no allowances in the agreements for a successor entity such as Acordia, which had acquired the original employer.

The Supreme Court agreed:

The agreements defined the “Company” only as “Frederick Rauh & Company,” the predecessor employer. Because the agreements did not extend the definition of “Company” to include successor entities, Acordia could not enforce them. Simply, the agreements lacked any language that specifically assigned rights to the new company….

The noncompete agreements between the employees and their original employers specified that they applied only to the specific companies that had originally hired each employee. Because the agreements made no provision for the continuation of the agreement upon any acquisition of the original company by another company, the agreements are not enforceable by the L.L.C. according to the agreements’ original terms past the two-year noncompete period agreed to by the employees and their original employers.

In other words, if have any current non-competition agreements that operate under Ohio law, you need to review them to ensure that they allow for successor entities. Otherwise, even a simple change in corporate structure could render your agreement unenforceable.

Going forward, non-competition agreements should:

1. Define “employer” to include the current entity, in addition to any successors and assigns.
2. Include a specific clause in the agreement, which provides that all rights in the agreement flow to “successors and assigns,” which are entitled to enforce the agreement against the employee.

Luckily for employers, Ohio law provides that continued employment is sufficient consideration to support a non-competition agreement. In other words, you should be contacting your counsel to review all non-competition agreements for compliance with the Acordia case, and redrafting and reissuing to employees where necessary.

Ohio joins the fray on employers asking for social media passwords

It was only a matter of time before Ohio joined the list of states to introduce legislation that would prohibit employers from asking for social media passwords. Senate Bill 351, introduced late last week, would amend Ohio’s employment discrimination statue to make it an “unlawful discriminatory practice” for employers to do any of the following:

• Ask or require an applicant or employee to disclose usernames or passwords associated with, or otherwise provide access to, a private electronic account of the applicant or employee;
• Fail or refuse to hire an applicant for employment, or discharge, discipline, threaten to discharge, discipline, or otherwise penalize an employee, if the applicant or employee refuses.

The bill defines “private electronic account” as “a collection of electronically stored private information regarding an individual, including such collections stored on social media internet web sites, in electronic mail, and on electronic devices.” It then broadly defines “social media internet web site” as “an internet web site that allows individuals to do all of the following”:

1. Construct a public or semipublic profile within a bounded system created by the service;
2. Create a list of other users with whom the individual shares a connection within the system; or
3. View and navigate the list of users with whom the individual shares a connection and those lists of users made by others within the system.

The bill does not prohibit an employer from monitoring the electronic accounts of employees or applicants on the employer’s own Email or Internet system.

As far an enforcement, the bill would permit aggrieved individuals to file a charge of discrimination with the Ohio Civil Rights Commission, or a private cause of action in court. It also allows the OCRC to levy fines of up to $1,000 for the first violation and up to $2,000 for each subsequent violation.

I’ve said it before and I’ll say it again, this is not a problem that needs fixing. Companies simply aren’t engaging in the type of conduct this bill seeks to legislate. I am troubled that the path this legislature chose is to seek to make this an unlawful discriminatory practice, on the same plane as race, sex, age, and disability discrimination. Moreover, there are no exceptions for industries that might have a legitimate reason to know what applicants or employees are doing on social sites (schools, police departments, financial services). The lack of any exceptions is a glaring omission from this legislation.

This bill is in its infancy. I will continue to monitor its status and update you with any movement in Columbus.

6th Circuit applies “but for” causation to ADA claims (but does it matter?)

More than a year ago, the 6th Circuit upheld its use of a “sole reason” causation standard in ADA cases, but invited the full 6th Circuit to revisit (and overrule) this issue. That en banc panel issued its ruling last Friday, and, expectedly, it overruled the Court’s prior use of the “sole reason” causation standard. Unexpectedly, however—in Lewis v. Humboldt Acquisition Corp. (6th Cir. 5/25/12) [pdf]—the Court replaced it with a similarly restrictive “but for” causation standard.

Relying on the linguistic similarities between the ADA and the ADEA, the Court looked to the Supreme Court’s decision in Gross v. FBL Financial Services for the appropriate causation standard:

[W]hat standard should trial courts use in instructing juries in ADA cases? Gross [v. FBL Financial Services] points the way. The ADEA and the ADA bar discrimination “because of” an employee’s age or disability, meaning that they prohibit discrimination that is a “‘but-for’ cause of the employer’s adverse decision.”

Case closed. Or is it? As one of the dissenting opinions points out, the 6th Circuit is very much in the minority in its interpretation of the ADA’s causation standard. “Significantly, a majority of our sister circuits have embraced the motivating factor standard in reviewing ADA claims.” (citing to the 1st, 2nd, 3rd, 4th, 5th, 8th, 9th, and 11th Circuits). Could this conflict among the circuits now head to the United States Supreme Court for resolution?

Or, is this issue a mere academic exercise? The ADA Amendments Act changed the ADA’s operative causation language. Pre-amendments, the ADA provided: “No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual.” The ADAAA, however, changed the “because of” causation standard to a “discriminate … on the basis of disability” standard. This alteration is significant, because it changes the key language in the ADA that had mirrored the ADEA, and upon which the 6th Circuit based its opinion that the rationale of Gross also applies to ADA claims. Is is splitting hairs to say that “because of” is materially different than “on the basis of?” Maybe. But, it is not insignificant that the ADAAA altered this key phrase.

As you can see, these issues are complex and, despite the en banc ruling, are far from settled. For employers, you are infinitely better off making reasonable accommodations and avoiding disability discrimination claims, so that you do not place yourselves in positions to have to worry about proper burdens of proof and causation standards. In other words, if you don’t put yourself in a position to be sued, because-ofs and but-fors simply don’t enter the equation.

WIRTW #227 (the “replay” edition)

Yesterday afternoon, I appeared on the The Proactive Employer, talking all things workplace social media with host Stephanie Thomas, fellow guest Molly DiBianca (of the Delaware Employment Law Blog and @MollyDiBi). Thanks to Stephanie for a great hour.

Luckily for you, if you missed yesterday’s hour live, its available for replay two different ways:

• Streaming via The Proactive Employer.
• Download via iTunes.

Now there’s no excuse for not listening. Enjoy your holiday weekend.

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

Discrimination

• How to lose a disability discrimination case in 5 easy steps… — from Eric Meyer’s The Employer Handbook Blog
• Second Circuit = The Avengers? Judges Create Alter Ego Liability — from Dan Schwartz’s Connecticut Employment Law Blog
• EEOC: Confederate Flag = Hostile Work Environment? — from Phil Miles’s Lawffice Space
• Religious employers, the ministerial exception and single moms—again! — from Robin Shea’s Employment and Labor Insider
• Title VII does not protect employee terminated because of illegal alien spouse — from EmployerLINC
• Another EEOC Systemic Lawsuit Bites The Dust In A Favorable Ruling For Employers — from Workplace Class Action Litigation
• Time to check the dress code? Can an employee be “too hot?” — from John Holmquist’s Michigan Employment Law Connection
• Getting Fired for Being “Too Hot” — from Mike Haberman’s Omega HR Solutions

Social Media & Workplace Technology

• Illinois Passes Password-Privacy Law — from Delaware Employment Law Blog
• Are You a Victim of Social Media Discrimination? — from Social Media Today
• Don’t Search Cyberspace Without This — from Mark Toth’s Manpower Employment Blawg
• iPhone thief’s Disney cruise adventure goes on public display in owner’s Facebook album — from The Verge
• IBM stung by BYOD pitfalls — from TheAppleBlog

HR & Employee Relations

• Do temporary employees have rights? — from Evil HR Lady, Suzanne Lucas
• Expanding Ban the Box Legislation Impacts Small Business — from COSE Mindspring
• I Do Not Like to Fire People — from You’re the Boss Blog
• Five Employment Law Takeaways From American Idol — from TLNT
• Dear Evil Skippy: Can My Supervisor Make Me Use Less Perfume? — from Evil Skippy at Work
• 6 Reasons You’ll Be Investigating More Workplace Bullying This Year — from i-Sight Investigation Software Blog
• Whoomp, There It Is: Employees Are Skipping Work To Watch Sports — from Workplace Diva
• Female bus driver claims her boss licked her face — from New York Daily News
  

Wage & Hour

• Spring Tune-Up: Gas Stations Should Review Their Pay Policies and Recording Practices to Steer Clear of the DOL’s Recent Enforcement Initiative Targeting Them — from Wage & Hour Defense Blog
• Court Sends Collective Action to the Showers on Wage Claim for Time Spent Changing Clothes and Blows the Whistle on the “Clock” Starting when Traveling From the Locker Room — from Trade Secret / Noncompete Blog
• Taking FMLA leave does not affect employee’s obligations under non-FMLA attendance policies — from Employment Law Matters

Labor Relations

• What the U.S. Chamber Of Commerce Doesn’t Want You to Know About Your Workplace Rights — from Donna Ballman’s Screw You Guys, I’m Going Home
• 2nd Circuit Overturns NLRB, Holds Starbucks Can Limit Employee Union Flair — from Randy Enochs’s Wisconsin Employment & Labor Law Blog

Ohio Supreme Court upholds statewide workplace smoking ban

On November 7, 2006, Ohio voters passed a ballot initiative to
enact the Smoke Free Workplace Act. It became effective on December 7, 2006, and is codified in R.C. Chapter 3794.

Generally, to adhere to the Act, businesses must do four things:

• Prohibit smoking in any enclosed “public place” or “place of employment,” including areas immediately adjacent to locations of ingress or egress.
• Post no-smoking signs—with the toll-free enforcement number, 1-866-559-OHIO (6446)—at all entrances or areas of transition between non-regulated and regulated areas.
• Remove ashtrays and other tobacco receptacles.
• Not discharge, refuse to hire, or in any manner retaliate against anyone for exercising any rights under the workplace smoking ban law.

Yesterday—in Wymsylo v. Bartec, Inc. [pdf]—the Ohio Supreme Court unanimously upheld the constitutionality of the Smoke Free Workplace Act.

If you have been dragging your feet in enforcing this law in your business, or have been hoping for a reprieve from the Ohio Supreme Court, you are out of luck. You need to ensure that your business complies with the Act and is smoke free.

In addition, whether you are in Ohio or another state, and your business is to be smoke-free, you should adopt a formal smoke-free policy, which includes formally designating where on your property employees are allowed to smoke (if allowed at all).

Even terminations over “genitalia sandwiches” can generate lawsuits

The court properly granted summary judgment because reasonable minds could only conclude that appellant’s actions in photographing an inmate placing his penis on a sandwich and then feeding the sandwich to another inmate were manifestly outside the scope of employment.

I can promise you read that sentence correctly. It is the Ohio Supreme Court’s digest summary for Cantwell v. Franklin Cty. Bd. of Commrs. (Ohio Ct. App. 5/22/12) [pdf] You can do a double-take, a triple-take, or as many takes as you need. It is still going to say that a Franklin County jail guard, while delivering bologna sandwiches to inmates, asked an inmate to place his penis on a sandwich, took of cell phone photo of said penis sandwich, and fed said sandwich (sans penis) to another unsuspecting inmate while taunting him.

The lawsuit concerned whether these actions were in good faith, and not manifestly outside the scope of Cantwell’s employment or official responsibilities, which would determine whether the county had a duty to defend Cantwell in the prisoners’ subsequent civil rights lawsuits.

What could Cantwell possibly argue?

It was commonplace for jokes and pranks to take place at the Franklin County jail between inmates, as well as hazing to take place between deputies, and such, if not condoned, were certainly not discouraged. Thus, appellant contends, because these jokes were encouraged, promoted, and tolerated, his “joke” to give Copeland a genital-tainted sandwich was not manifestly outside the scope of his employment.

The explanation is a whole lot funnier than the joke. Needless to say, none of this amused the court, which affirmed the trial court’s dismissal of Cantwell’s claim.

From this mess of a case, I draw the following lesson. You cannot always guard against lawsuits by ex-employees. I am certain that given these facts, the county never dreamed it would be defending a lawsuit by this employee. Yet, he found a reason to sue. No termination (no matter the reason) is bulletproof. Even the most rock-solid termination can result in a lawsuit. That fear, however, should not hamstring employers from making appropriate termination decisions based on legitimate reasons. The best you can do with any termination is to make sure every “i” is dotted and every “t” is crossed (with the help of counsel, if needed), and let the chips fall where they may.

Radio/Podcast appearance: Being Smart About Social Media in the Workplace

This Thursday, May 24, at 3 pm, Molly DiBianica (proprietor of the Delaware Employment Law Blog and tweeter extraordinaire @MollyDiBi) and I will be guests on The Proactive Employer, hosted by Stephanie Thomas. 

We will be discussing all things social media for employers, including providing tips on workplace social media policies, offering suggestions on how to ensure employees are using social media safely, and talking about how companies can be be smart about social media.

We will also be taking live questions, both via Twitter with the hashtag #TPE, and via call-in at (866) 472-5790. If you can’t join us live, the episode will also be available for streaming or download.

Molly and I go way back in the blawgosphere. She also contributed the chapter on privacy to my social media book, Think Before You Click, Strategies for Manging Social Media in the Workplace. Please tune in for what should be a very engaging and interesting conversation.

The obligatory post about the EEOC’s charge filing data

The EEOC has released state-by-state charge filing statistics for the past three years. Which types of discrimination are popular (and not so popular) with Ohio employees?

• Race discrimination: 35.4% of all charges
• Retaliation: 32.9%
• Disability: 29.6%
• Age: 28.6%
• Sex: 27.3%
• National Origin: 5.3%
• Religion: 3.5%
• Color: 1.7%
• Equal Pay: 0.9%
• Genetic Information: 0.3%

These numbers shouldn’t be that much of a surprise to any businesses.

What is more interesting (at least to me) is how Ohio fairs when compared to the other 49 states. For fiscal year 2011, there were 3,137 total charges of discrimination filed with the EEOC in Ohio. Overall, that number comprises 3.1 percent of all charges filed nationwide, placing Ohio 12th among the 50 states.

Ohio is 7th in overall population, yet 12th in EEOC filings. Is is possible that Ohio is more friendly to employers than smaller states such as Georgia, North Carolina, Virginia, Tennessee, and Alabama, all of which rank ahead of Ohio in the number of EEOC filings per year? Probably not. Instead, let me offer a different explanation. Ohio’s employment discrimination statute is quirky. It allows employees to proceed directly to court without first exhausting their administrative remedies by filing a charge with the EEOC (or its state equivalent).

Ohio businesses are facing their fair share of discrimination claims; they are just facing them in courts instead of in the agencies. This quirk fails Ohio businesses. Employees are able to bypass the EEOC’s crucial role in filtering out frivolous claims. Until Ohio’s legislators step up to the plate and fix this anomaly of our discrimination statute, our state’s business community will continue to be disadvantaged by defending the bulk of discrimination claims in a more costly and time-consuming judicial venue.

Can a poor performance review count as an “adverse action?”

For an act to be considered an “adverse employment action” sufficient to support a discrimination claim, it must constitute
”a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Traditionally, a negative performance review does not constitute an adverse employment action, unless “the evaluation has an adverse impact on an employee’s wages or salary.” Or does it?

In Goldfaden v. Wyeth Laboratories (5/14/12) [pdf], the Sixth Circuit concluded that a warning letter issued to an employee constituted an “adverse action” even though the employee quit her job before she could suffer any consequences from the warning:

She received a warning letter in September that limited her year-end performance evaluation to a three on a scale of one to five. However, she never made it to the year-end evaluation, as she resigned three weeks after receiving the evaluation. The parties dispute what the effect of the lower evaluation would have been…. We cannot know for sure what would have happened, but there was a possibility that she would have received a lower bonus. This doubt is sufficient to survive summary judgment….

This result is even more troubling because the same opinion affirmed summary judgment for the employer on Goldfaden’s constructive discharge claim. In other words, the warning letter was not so intolerable that it compelled Goldfaden to quit, but it nevertheless could rise to the level of an adverse employment action because it could, maybe, have resulted in a lower year-end bonus.

It’s cases like this one that make it so difficult (and often frustrating) to attempt to predict outcomes for clients.