Silence can be golden when dealing with employee medical issues

“Regarded as” disability discrimination claims are supposed to be blind to whether an employee actually suffers from a physical or mental impairment that limits a major life activity. These claims protect individuals who are able to meet a job’s requirements from an employer’s perception of an inability to perform the job’s functions because of a medical condition.

What happens, however, when an employer makes a personnel decision with no knowledge that the employee suffers from some medical condition? Can the employee still claim that the employer “regarded” him or her as disabled? According to one recent decision from an Ohio court of appeals, the answer is no.

In Field v. Medlab Ohio (11/1/12) [pdf], the employee alleged that her employer transferred to her a less favorable sales territory and ultimately terminated her because it perceived her as suffering from alcoholism (a protected disability).

The court disagreed, because Medlab had no knowledge of Field’s condition at the time it made its decisions regarding her employment:

There is nothing in the record that shows that MedLab had any knowledge that Field suffered from alcoholism or any mental disorder as defined. Moreover, the record establishes that any transfer or reassignment of territories occurred prior to MedLab learning that Field was hospitalized or that she was having a “nervous breakdown.” Finally, Field was not terminated from employment with MedLab until after Field continued to perform unsatisfactorily in her new “smaller” territory. The record reflects that at no time did MedLab refer to her hospitalization or any mental disorder as the reason for transfer or termination. The record supports that Field’s termination was based on job performance, and Field has failed to show that MedLab’s reasons for termination were merely pretexts.

It’s easy to communicate to managers and supervisors the concept that personnel decisions should be made in a vacuum free from any consideration of medial conditions. It’s difficult, however, for decision makers always to remain silent on these issues. One inopportune slip of the tongue about an employee’s medical condition (or perceived medical condition) could convert a defensible disability discrimination claim into a knock-down, drag-out fight culminating in a risky jury trial. Field v. Medlab Ohio illustrates that good outcomes do result from employment decisions made without reference to impairments, regardless of the employee’s underlying medical issues.

What skeletons are you unearthing by suing an ex-employee?

Before you bring suit against an ex-employee, you might want to consider whether their exist any skeletons in your employment closet that could come back to haunt you in the litigation. Case in point—Automotive Support Group, LLC v. Hightower [pdf], decided yesterday by the 6th Circuit.

Automotive Support Group sued two ex-employees for breaching the non-competition provisions in their employment agreements. One of the sued employees, Don Ray McGowan, counterclaimed in the lawsuit for unpaid wages and severance owed under his employment agreement.

The appellate court affirmed the trial court’s dismissal of the company’s claims. It also affirmed the trial court’s judgment for McGowan on his unpaid wage and severance claims. How much did the employee win? $70,501.31—$750 in unpaid wages (trebled under the applicable South Carolina wage payment statute), $2,500 in severance pay, and $65,751.31 in attorneys’ fees. Add to that $70,000 whatever the company paid its own lawyers to litigate this case.

There are two lessons for employers that leap to mind:

1. Unclean hands. Non-competition cases are often decided on equitable bases. In addition to money damages, you are likely asking a court to award you an injunction enforcing the agreement and precluding the employee from working for a competitor. To obtain an injunction, however, one must have what is called “clean hands.” Clean hands means that the party seeking an injunction has not acted inequitably or unfairly toward the party it is seeking to enjoin. Refusing to pay wages raises the possibility of a court refusing to issue an injunction because of your unclean hands. The better practice: pay the wages (you owe them anyway), and then file suit.

2. Sometimes you get what you ask for. Would McGowan have started a lawsuit over $3,250? Probably not. Once he was sued, did have anything to lose by raising those issues as a counterclaim? Again, probably not. If you are going to bring a lawsuit against an ex-employee, make certain that you are not creating an environment to incent that individual to file a claim that otherwise might stay buried and never see the light of day.

WIRTW #248 (the “vote early, vote often” edition)

In case you haven’t heard, there is a presidential election taking place on Tuesday. My guess is that a few of your employees are going to vote, and some may even want to arrive at work late, or leave early, to beat the pre- and post-9 to 5 rush at the polls.

In case you are thinking about holding your workers to their normal work hours on election day, you should know that Ohio has a statute that requires employers to provide a “reasonable amount of time to vote on election day.”

And remember, if you don’t vote, you have no right to complain. Or, is George Carlin right, and it’s the other way around? (Do I need to warn you that a Carlin clip is likely NSFW?)

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

Discrimination

• EEOC Regional Attorneys Speak On the EEOC’s Future Targets — from Employment Discrimination Report
• Can You Be Fired For Supporting A Political Candidate? — from Donna Ballman’s Screw You Guys, I’m Going Home
• Judge Nancy Gertner on the Situation of Discrimination Claims — from The Situationist
• Butt Slapping … Not Harassment? — from Phil Miles’s Lawffice Space
• What happens when the boss is dating the sexual harasser? — from Warren & Associates Blog

Social Media & Workplace Technology

• Employers, beware the siren’s song of social media searches — from Technology for HR
• Gap veers from its social media policy in Twitter blunder — from Ragan.com
• I Was Fired For Recruiting on LinkedIn — from Jessica Miller-Merrell’s Blogging4Jobs
• How to Update your Employee Handbook to Include Social Media — from i-Sight Investigation Software Blog
• Analysts’ Financial Disclosures on Facebook Lead to Fine and Termination — from Dan Schwartz’s Connecticut Employment Law Blog
• Salty about Sandy: 20 Hurricane tweets from your employees — from Eric Meyer’s The Employer Handbook Blog
• eDiscovery 101: BYOD = BYOA (ASPIRIN) — from e-Discovery Insights
• When you and employer split, who gets your friends and followers? — from Bob Sullivan at NBC News

HR & Employee Relations

• Dear Evil Skippy: Can Management Require Employees To Get Flu Shots? — from Evil Skippy at Work
• Why Documentation Is Important — from Mike Haberman’s Omega HR Solutions
• Non-smokers Should Heart Workplace Smoking Bans — from Workplace Diva
• Employment-at-Will: Walking the Fine Line, Conclusion — from The Emplawyerologist
• DIY Employment and Noncompete Agreements: Are You Getting What you Pay For? — from Jason Shinn’s Michigan Employment Law Advisor
• The horror! Nine things employers say that spook their lawyers — from Robin Shea’s Employment and Labor Insider

Wage & Hour

• Modifying Workweeks to Avoid Overtime: Employers Should Still Proceed With Caution — from Wage & Hour Defense Blog
• Do you have to be paid if your office is closed because of weather? — from Evil HR Lady, Suzanne Lucas
• Dads Need Lovin’ Too! Father Can Proceed with FMLA Retaliation Claim in “Macho Culture” Lawsuit — from Jeff Nowak’s FMLA Insights
• Transfer to Lesser Sales Territory Was Okay under FMLA, Court Says — from Smart HR Manager
• How to Negotiate Your Parental Leave — from Harvard Business Review

Labor Relations

• Unions Scold Corporations… For Trying to Keep Up With Union Politicking — from LaborPains.org
• Was the NLRB’s Decision About Employee Use of Social Media on Company Time Much To Do About Nothing? – Maybe — from netWORKed Lawyers

The “I”s have it: NLRB says don’t shred those at-will disclaimers just yet

If you are a non-union employer, you likely have an employee handbook that sets forth the policies and procedures that guide your relationship with your employees. And, if you have an employee handbook, it likely contains a disclaimer stating that employees are at-will, that employees can be fired at any time for any reason, and that nothing in the handbook alters that at-will status. Indeed, employers commonly deploy these disclaimers to avoid claims by employees that the handbook creates a binding and enforceable contract.

Consider the following three at-will disclaimers, taken from real, live employee handbooks:

1. I further agree that the at-will employment relationship cannot be amended, modified or altered in any way.

2. The relationship between you and Mimi’s Cafe us referred to as “employment at will.” This means that your employment can be terminated at any time for any reason, with or without cause, with or without notice, by you or the Company. No representative of the Company has authority to enter into any agreement contrary to the foregoing “employment at will” relationship. Nothing contained in this handbook creates an express or implied contract of employment.

3. Employment with Rocha Transportation is employment at-will. Employment at-will may be terminated with or without cause and with or without notice at any time by the employee or the Company. Nothing in this Handbook or in any document or statement shall limit the right to terminate employment at-will. No manager, supervisor, or employee of Rocha Transportation has any authority to enter into an agreement for employment for any specified period of time or to make an agreement for employment other than at-will. Only the president of the Company has the authority to make any such agreement and then only in writing.

What’s the difference between these three policies? According to the February 1, 2012, opinion of a National Labor Relations Board Administrative Law Judge, #1 is an illegal and overly broad restraint on the right of employees to engage in protected concerted activity. According to two advice memoranda published yesterday by NLRB Acting General Counsel Lafe Solomon, #2 and #3 pass muster and are not illegal.

What’s the difference? According to Mr. Solomon, the distinction lies in the use of the personal pronoun, “I.”

The ALJ found that the signing of the acknowledgement form, whereby the employee—through the use of the personal pronoun “I”—specifically agreed that the at-will agreement could not be changed in any way, was “essentially a waiver” of the employee’s right “to advocate concertedly … to change his/her at-will status.” Thus, the provision in American Red Cross more clearly involved an employee's waiver of his Section 7 rights than the handbook provision here.

By comparison, the Mimi’s Cafe and Rocha Transportation disclaimers merely serve to reinforce the unambiguously-stated purpose of the employers’ at-will policies, and do not require employees individually to agree never to alter their at-will status.

These distinctions are nuanced, and the NLRB recognizes their unsettled nature. From the NLRB’s website:

Because Board law in this area remains unsettled, the Acting General Counsel is asking all Regional Offices to submit cases involving employer handbook at-will provisions to the Division of Advice for further analysis and coordination.

It is refreshing (surprising? relieving?) to see that the NLRB’s Office of General Counsel is backing off the position that any at-will disclaimer violates the NLRA, and is willing to evaluate them on a case-by-case basis.

For now, you should take a look at your handbook disclaimers and consider scrubbing them of personal pronouns. Instead, consider using the examples from either Mimi’s Cafe or Rocha Transportation as a template.

Of course, the validity of that template to avoid a binding contract under state law could vary from state to state. For this reason, you are best served running any disclaimer by your employment counsel before rolling it out to your employees.

What scares employers? How about a union organizing campaign

Oooh, Scary!

Since today is Halloween, I thought it appropriate to theme today's post around that which scares employers. Something of which I know most employers live in undying fear is a union organizing campaign.

Do you know what one of the best tools employers have at their disposal to combat this fear? A no-solicitation policy, which prevents employees from discussing union-related matters in work areas and during work time.

These policies, however, have to be both lawfully drafted and lawfully enforced. For example, two weeks ago a federal court in Cleveland entered an injunction preventing an employer from enforcing a no-solicitation policy against its employees who were engaged in a union campaign. The policy, which was non-discriminatory on its face, read as follows:

During work time, each associate is to be occupied with his or her assigned responsibilities. Engaging in the distribution of literature during work time or in working areas or soliciting support of other associates for any group, cause or product on work time is prohibited.

On its face, there is nothing wrong with that work rule. It non-discriminatorily and equally applies to union and non-union activities, and only prohibities solicitations during work time or in working areas. 

The court, however, did not limit its examination to the face of the policy. It also looked at statements made by the employer's CEO about the policy. He allegedly told a non-employee union organizing representative that "the facility would neither recognize nor bargain with the Union." Then, in an employees-only meeting, the CEO bragged about the number of nursing homes he owned, "that none of them are union, and none of them will be union," and that there would be no union solicitations on the premises.

Based on those series of comments, the court concluded that the CEO's statements were sufficient to transform a facially lawful no-solicitation policy into an overly broad illegal policy.

What's the lesson for employers from this scary tale? It is not enough merely to have a no-solicitation policy. You must also take seriously the NLRA's rules against applying policies to single-out labor unions and the employees who support them. 

If you only enforce your no-solicitation policy when faced with a union organizing campaign or to ban union-related activity, no amount of vanilla in your policy will save you from an unsavory trick when your enforcement is challenged.

Whether your managers should “friend” subordinates may be gender based.

I’ve written before about whether you should allow your employees to connect with each across the various social networks (here and here).

Last week, The Washington Post reported on the upcoming publication of a white paper by Wharton School professor Nancy Rothbard, entitled, “OMG My Boss Just Friended Me.” In this white paper, professor Rothbard argues that an employee's decision of whether to accept the friend request made by a manager or supervisor depends on the “creep” factor—the gender of the person making the request:

The boss’s gender plays a role in an employee’s willingness to accept the invitation. In one experiment, Rothbard found that participants were more likely to accept Facebook friend requests from female bosses when the women disclosed more information about themselves online. When male bosses disclosed more information about themselves, however, participants were less likely to want to virtually connect with them.

What does this mean for your business's social media policy? It means you have lots to think about when adopting the right social media policy for your organization. For example, social media use has a generational component. Baby Boomers have a much different conception of how much is appropriate to share online than Gen-Xers, who, in turn, are more guarded than Gen-Yers and Millennials. Your social media policy has to account for these generational differences.

If professor Rothbard is correct, your social media policy also has to account for gender differences. Needless to say, there is no right or wrong answer to this question. As professor Rothbard’s whitepaper illustrates, however, these issues are highly nuanced, and need to be understood and accounted for in your workplace.

Greatest hits: Do you know what to do when severe weather strikes your workplace? #Sandy

I don’t know if you've heard, but there this little storm named Sandy trekking towards the mid-Atlantic and New England. The storm is so potentially dangerous that the National Weather Service is sending out passive-aggressive warnings, just in case people are thinking of riding it out: “If you are reluctant, think about your loved ones, think about the emergency responders who will be unable to reach you when you make the panicked phone call to be rescued, think about the rescue/recovery teams who will rescue you if you are injured or recover your remains if you do not survive.”

Do you know know what to do with your workers when a weather event such as Sandy aims for your workplace? Two winters ago, I offered five suggestions for your workplace extreme weather policy, including how to handle issues such as attendance, wage and hour, and telecommuting. In light of this week’s storm of apparently historical proportions, I thought it best to revisit that post: Do you have a severe weather policy?

In the meantime, for all of my family and friends in the storm’s immediate path, stay safe, and think of a kinder, more gentler Sandy:

WIRTW #247 (the “meet ’n greet” edition)

What does it look like when two behemoths of the blogging world get together in person for the first time?

Dan, hopefully you don’t mind that I cribbed your photo.

As an aside, if you find yourself near Union Square in San Francisco, I recommend Café Claude. Great classically French meal, only outdone by the company. Your mileage may vary on the latter. 

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

Discrimination

• EEOC Cracking Down on Discrimination of Arab and Muslim Workers — from Hiring & Firing
• The Never-Ending Employment Law Case and the Hour-Long Commute — from Dan Schwartz’s Connecticut Employment Law Blog
• Workplace Discrimination Against Pregnant Women Now Being Targeted By The EEOC — from Hunton Employment & Labor Law Perspectives™
• Appeals Court Slams Trial Judge For Not Issuing Injunction Against Egregious Sexual Harasser — from Employment Discrimination Report
• Can Employers Discriminate Against You Because You're Unemployed? Absolutely — from Donna Ballman’s Screw You Guys, I’m Going Home
• Court Dismisses Bachelor Discrimination Suit — from TVLine
• Asperger’s Syndrome in the Workplace — from Workplace Insights

Social Media & Workplace Technology

• Take Your Life Back — from Harvard Business Review
• Six Principles for Reputation Management in a Transparent World — from Social Media Today
• “The Problem with the Internet Is That Nothing Is Temporary” — from Lifehacker
• Fired for “Liking”—Social Media Use at Your Job — from From the Sidebar
• Social Media and Employment: My Name, My Picture, My Info - Why Not My Account!? — from Outten & Golden Employment Law Blog
• An Eye-Opening Termination Of A Former Lingerie Model — from Social Media Employment Law Blog
• Fired for WHAT!? - Jailbait and Creepshots — from Phil Miles’s Lawffice Space
• NY Times social media policy a good model for law firms — from Kevin O’Keefe’s Real Lawyers Have Blogs
• Dear Evil Skippy: What’s The Best Way To Enforce Computer-Use Rules? — from Evil Skippy at Work
• Privacy and Porn on Workplace Computers — from Employment & Human Rights Law In Canada

HR & Employee Relations

• As the Election Nears, Employers Should be Cautious of Politics in the Workplace — from Stoel Rives World of Employment
• Politics at Work: Employer Dos, Don'ts, and Be Very, Very Carefuls — from Robin Shea’s Employment and Labor Insider
• An HR Lesson from the Presidential Debate — from Molly DiBianca’s Delaware Employment Law Blog
• Employment-at-Will: Walking the Fine Line, Part I and Part II — from The Emplawyerologist
• Ohio Background Screening Law Not Perfect, But Deserves Applause — from Nick Fishman’s employeescreenIQ Blog
• Do you know what your references will say? True quotes from reference checks — from Evil HR Lady, Suzanne Lucas
• “Vacation” Rules Around the World — from Compensation Cafe
• Effective Ways to Start and End an Investigatory Interview — from Trade Secret / Noncompete Blog

Wage & Hour

• “No Soup for You!” If An Employee Doesn’t Turn in Medical Certification, FMLA Leave is Not Protected — from Jeff Nowak’s FMLA Insights
• What happens in Vegas, becomes an FMLA claim — from Eric Meyer’s The Employer Handbook Blog
• The DOL’s FMLA Forms Do Not Comply with GINA — from Minnesota Employer
• Changing Workweek to Minimize Overtime Is Not “Evasion” of the FLSA — from Wage & Hour Defense Institute

Labor Relations

• Whiskey Bent and Hellbound: The NLRB May Target Employer Email Systems Next — from Todd Sarver’s Employment Essentials
• Five Actions That Non-Union Employers Should Take to Retain Their Union-Free Status in 2013 — from Management Memo
• Unions Promote State Workplace Anti-Bullying Bills — from Washington D.C. Employment Law Update
• NLRB welcomes “micro-unions” — from Walter Olson’s Overlawyered
• The Real Reason Walmart’s Social Media Policy Survived and Costco’s Didn’t (Hint: It’s Not “Defamation”) — from Augmented Legality

Are you attending the COSE Small Business Convention?

Will you be at Kalahari for the COSE Small Business Convention? If so, I’m speaking at tomorrow—Friday, October 26, at 10:15. My session is entitled, Think Before You Click: Strategies for Managing Social Media in the Workplace.

What will you learn?

• Why discrimination, breaches of confidentiality, and protected concerted activity are the 3 biggest HR risks facing employers via their employees' use of social media.
• Why you are fighting a losing battle if you try to ban your employees from accessing Facebook and other social sites from work for personal reasons.
• How to limit your risk when you search for information on job candidates online.
• What a "pervy wanker" has to do with concepts such as corporate risk tolerance.
• How to account for who owns official corporate social media channels.
• Whether anyone can make any sense out of the NLRB's position on social media posts as protected concerted activity.

Plus, I promise a prize for at least one person who attends my session. How can you pass up my talk?

If you’re at the convention, please stop by and say hello. I love meeting my readers. I hope to see you there.

 

EEOC opines on domestic violence, sexual assault, or stalking as Title VII and ADA violations

There is no federal law that expressly gives workplace rights to employees who find themselves victims of domestic violence, sexual assault, or stalking. That omission, however, does not unchain employers to discriminate against employees who find themselves in these unfortunate circumstances.

Earlier this month, the EEOC issued a Q&A entitled, Application of Title VII and the ADA to Applicants or Employees Who Experience Domestic or Dating Violence, Sexual Assault, or Stalking [pdf].

While Title VII and the ADA do not expressly protect victims from discrimination, they do protect against employers’ use of stereotypes rooted in protected classes (e.g., sex or mental illness) to treat these employees differently.

The EEOC is kind enough to provide some examples of these stereotypes in action:

Title VII—Disparate Treatment Based on Sex

• An employer terminates an employee after learning she has been subjected to domestic violence, saying he fears the potential “drama battered women bring to the workplace.” 

Title VII—Sexual Harassment

• An employee’s co-worker sits uncomfortably close to her in meetings, and has made suggestive comments. He waits for her in the dark outside the women’s bathroom and in the parking lot outside of work, and blocks her passage in the hallway in a threatening manner. He also repeatedly telephones her after hours, sends personal emails, and shows up outside her apartment building at night. She reports these incidents to management and complains that she feels unsafe and afraid working nearby him. In response, management transfers him to another area of the building, but he continues to subject her to sexual advances and stalking. She notifies management but no further action is taken.

ADA—Disparate Treatment Based on Actual or Perceived Disability

• An employer searches an applicant’s name online and learns that she was a complaining witness in a rape prosecution and received counseling for depression. The employer decides not to hire her based on a concern that she may require future time off for continuing symptoms or further treatment of depression.

ADA—Denial of Reasonable Accommodation

• An employee who has no accrued sick leave and whose employer is not covered by the FMLA requests a schedule change or unpaid leave to get treatment for depression and anxiety following a sexual assault by an intruder in her home. The employer denies the request because it “applies leave and attendance policies the same way to all employees.”

Retaliation

• An employee files a complaint with her employer’s human resources department alleging that she was raped by a prominent company manager while on a business trip. In response, other company managers reassign her to less favorable projects, stop including her in meetings, and tell co-workers not to speak with her.

The Q&A contains many more examples. It is worth reading, and incorporating into your harassment/EEO training so that managers and supervisors are aware of these issues.

Hat tip to the Workplace Prof Blog for brining this to my attention.

Please don’t tell your employees for whom to vote

Have you read the story about a certain presidential candidate telling employers that’s it’s okay to suggest to their employees how to cast their votes in the upcoming election? Here’s the quote, via The Guardian.

I hope you make it very clear to your employees what you believe is in the best interest of your enterprise and therefore their job and their future in the upcoming elections. And whether you agree with me or you agree with President Obama, or whatever your political view, I hope — I hope you pass those along to your employees. Nothing illegal about you talking to your employees about what you believe is best for the business, because I think that will figure into their election decision, their voting decision and of course doing that with your family and your kids as well.

Governor Romney is correct about one thing—it is not illegal for employers to talk to their employees about the upcoming election and suggest how to vote. Indeed, as Professor Paul Secunda points out at the Yale Law Journal Online, employers may be able to go so far as to “compel their employees to listen to their political views at such meetings on pain of termination.” According to the Proactive Employer Blog, “employers justify their actions countering that rather than controlling or coercing workers, they are simply educating them.”

There are some laws covering this type of conduct. The federal government criminalizes intimidation, threats, or coercion for the purpose of interfering with one’s right to vote one’s choice in a federal election. A few states (Michigan, for example) expressly prohibit employers from discharging or otherwise coercing employees to influence their votes in political elections. Ohio is not one of those states.

Legal or illegal, however, you need to ask yourself whether holding captive audience meetings to discuss political issues, threatening employees’ jobs, or mandating their attendance at political events is a valid business practice. How you answer the question of whether you think it’s okay to try to shape or influence your employees’ votes helps to define the kind of employer you are. Voting is an intensely personal choice. I don’t think it’s my business how my family members cast their votes. I certainly don’t think it’s an employer’s business how its employees cast their votes. Voting booths have privacy curtains for a reason. Exercise some discretion by not invading that privacy of your workers.

More on telecommuting as a reasonable accommodation

Two months ago, I reported on Core v. Champaign County Board of County Commissioners, which, in denying a motion to dismiss, concluded that the employee’s complaint had sufficiently pleaded the issue of whether the employer’s decision to deny her request to telecommute as a reasonable accommodation violated the ADA.

The case involved an employee with an alleged sensitivity to certain perfumes worn by her co-workers. She claimed that her employer unlawfully denied her request to work from home as an accommodation for her chemical sensitivity. In denying the motion to dismiss and allowing the case to proceed, the court concluded that technological advances may make telecommuting an appropriate accommodation in certain cases.

Last week, that same court decided that this was not the right case to recognize telecommuting as an accommodation, and dismissed the employee’s lawsuit on the employer’s motion for summary judgment. On the specific issue of telecommuting, the court ruled as follows:

With regard to Plaintiff’s request to work from home as an accommodation, the Sixth Circuit has agreed with the general proposition that an employer is not required “to allow disabled workers to work at home, where their productivity inevitably would be greatly reduced.” The Sixth Circuit also recognizes, however, the possibility of exceptions to the general rule “‘in the unusual case where an employee can effectively perform all work-related duties at home [.]’”

Here, Defendant points to evidence that Plaintiff’s position … required her to meet with non-employee clients regarding services, inspect and certify in-home daycare facilities, conduct and attend training sessions, input data into a state database only accessible at the … facility, and maintain physical files that are to be restricted to the … facility. Defendant also points to Plaintiff’s own admissions that she cannot perform all of the essential functions of her position at home. Plaintiff points to no evidence rebutting these facts. Accordingly, the Court finds that the requested accommodation that Plaintiff be permitted to work from home is not reasonable.

This decision highlights two important points:

1. It does not take much for an employee to survive a motion to dismiss. A motion to dismiss merely tests the legal sufficiency of the complaint. In other words, reading the complaint in a light most favorable to the plaintiff, does it plausibly state a claim upon which a jury could award relief. It is a preliminary motion brought at the earliest stage of the case. In most cases, it is denied. When denied, it is rarely reflects on the merits of the case.

2. While telecommuting as a reasonable accommodation remains the exception, the line that separates exception from rule is shifting as technology makes telecommuting more feasible. If you want to be able to defend a workplace rule that employees work from work, and not from home, consider implementing the following three-step process:

• Prepare job descriptions that detail the need for time spent in the office.
• Document the cost of establishing and monitoring an effective telecommuting program.
• If a disabled employee requests telecommuting as an accommodation, engage in a dialogue with that employee to agree upon the accommodation with which both sides can live (whether it’s telecommuting or something else).

The real problem with individual liability

As Senate Bill 383—Ohio’s attempt at comprehensive employment discrimination reform—weaves its way through the legislative process, a lot of blood is going to be spilled. In fact, it started yesterday in the comments to my post discussing the legislation.

One of the key battlegrounds will be the issue of whether Ohio’s discrimination law should provide for liability of managers and supervisors for their own individual acts of discrimination. My friends from the plaintiffs’ bar (and, yes, they are my friends) accuse me of protecting those who should be punished. Nothing could be less accurate.

To put this issue into context, I need to take a step back and explain why individual liability is an issue at all. It is universally accepted that Title VII does not provide for the individual liability of supervisors and managers. Ohio’s counterpart, however, is different. In 1999—in Genaro v. Central Transport—the Ohio Supreme Court held that contrary to federal law, Ohio’s state employment discrimination statute renders supervisors and managers personally liable for their own discriminatory acts.

S.B. 383 eliminates this difference, and brings Ohio’s statute in line with its federal counterpart by eliminating individual liability.

Opponents of this legislation argue that individual liability for managers and supervisors is needed to properly deter discriminatory and harassing behavior and hold accountable those who perpetrate it.

This argument is a fallacy. Employees aggrieved by invidious and intentional discrimination or harassment have claims available against the individual perpetrators—assault, battery, intentional infliction of emotional distress, invasion of privacy, and defamation, to name just a few. These civil remedies are in addition to criminal penalties that one can seek for the most egregious misconduct.

Opponents of this legislation argue that it protects sexual predators.

In addition to being offensive, headline grabbing hyperbole, this argument also is a fallacy. If you believe that the employment discrimination laws should punish predatory behavior, then the availability of a remedy should neither depend on the employment status of the accused, nor the statute under which the suit is brought. Yet, currently, only managers and supervisors can be held liable. One can never sue a non-supervisor or non-managerial co-worker for discrimination, no matter how bad the conduct. Moreover, one can bring suit against a manager or supervisor under state law; federal law provides no such remedy. If we are really concerned about punishing predators, then we shouldn't differentiate between supervisors and non-supervisors, or between state and federal laws.

Opponents of this legislation argue that the only reason employers want to eliminate individual liability is to expand the availability of the removal of cases to federal court.

This argument is also a fallacy. When an Ohio plaintiff sues a non-Ohio company in state court under state law, the employer can take the case to federal court. Adding a local manager or supervisor as a defendant eliminates this possibility. The reality is that if a plaintiff wants to keep a case in state court, he or she will find a cause of action to name a non-diverse individual defendant, whether or not a statutory claim exists against that individual under the employment discrimination statute.

By focusing on the rare example of a workplace sexual predator, opponents of S.B. 383 gloss over the real harm caused by individual liability. Consider this example. Jane Doe, a supervisor for ABC Company, has to fire a poor performing employee. She has counseled the employee repeatedly for the past two years, but his performance has not improved. Unfortunately for Jane Doe, this employee happens to be the only African-American in her department. Five years after the termination, Jane Doe’s doorbell rings at 9 p.m. She answers her apartment door to find a process server, lawsuit in hand. The employee she had terminated five years earlier has sued Jane Doe, in addition to her company, for race discrimination. Ms. Doe had done nothing other than her job. Now, she is forced to defend against allegations of discrimination and bigotry.

This example is much more common than the workplace sexual predator that the opponents of S.B. 383 hold out as the standard bearer. There is little, if any benefit to keeping individual liability as a part of Ohio’s employment discrimination statute, and it is a key facet of this reform that must become part of the law of this state.

Major reform to Ohio’s discrimination laws introduced in state senate

Ohio’s employment discrimination laws leave a lot to be desired. They expose employers to claims for up to 6 years, render managers and supervisors personally liable for discrimination, contain no less than 4 different ways for employees to file age discrimination claims—all with different remedies and filing periods, and require no filing with the state civil rights agency as a prerequisite for filing a civil lawsuit.

Yesterday afternoon, Senate Bill 383 was formally introduced in the Ohio Senate. It is a business-friendly attempt at comprehensive reform of Ohio’s employment discrimination statute.

Among its key reforms and amendments, S.B. 383:

• Creates a universal 365-day statute of limitations for all employment discrimination claims.

• Clarifies that the inclusion of “religion” as a protected class does not include those working in a ministerial capacity.

• Unifies the filing of age discrimination claims to the same procedures and remedies as all other protected classes.

• Requires individuals to elect between filing an administrative charge with the Ohio Civil Rights Commission, or filing a discrimination lawsuit in court, and making clear the the election of one bars the other.

• Prioritizes mediation and conciliation for all charges filed with the OCRC.

• Establishing an affirmative defense to claims not alleging an adverse, tangible employment action, when 1) the employer exercised reasonable care to prevent or promptly correct the alleged unlawful discriminatory practice or harassing behavior, and 2) the employee failed to take advantage of any preventive or corrective opportunities provided by the employer or to otherwise avoid the alleged harm.

• Eliminates individual liability for managers and supervisors.

• Caps noneconomic and punitive damages based on the size of the employer.

This bill presents a tangible opportunity to fix a broken law. Ohio’s current employment discrimination statute is so different from both its federal counterpart and the similar laws of other states that it places Ohio at a competitive disadvantage. By paralleling much of the federal employment discrimination statutes, S.B. 383 restores balance and predictability for Ohio employers.

Focusing on the elimination of individual liability for discrimination claims, the Ohio Employment Lawyers Association, a vocal group of plaintiff-side employment lawyers, has already labeled this legislation as “protecting sexual predators.” Nothing could be further from the truth. The legislation leaves intact all common remedies employees have if they are subjected to predatory behavior in the workplace—assault, battery, intentional infliction of emotional distress, invasion of privacy, and criminal sanctions. S.B. 383 merely brings Ohio in line with federal law and the law of most states on this issue.

Now comes the hard part—getting this bill passed. If you believe S.B. 383 presents the necessary reform of a broken system, call and email your state senator and urge him or her to support this bill. Getting S.B. 383 passed will be an uphill battle, but it is a battle worth fighting to bring meaningful reform to a broken statute.

Employment Law Blog Carnival: The 007 Edition

“A dry martini,” he said. “One. In a deep champagne goblet.”

“Oui, monsieur.”

“Just a moment. Three measures of Gordon’s, one of vodka, half a measure of Kina Lillet. Shake it very well until it’s ice-cold, then add a large thin slice of lemon peel. Got it?”

“Certainly monsieur.” The barman seemed pleased with the idea.

“Gosh, that’s certainly a drink,” said Leiter.

Bond laughed. “When I’m … er … concentrating,” he explained, “I never have more than one drink before dinner. But I do like that one to be large and very strong and very cold, and very well-made. I hate small portions of anything, particularly when they taste bad. This drink’s my own invention. I’m going to patent it when I think of a good name.”

Ian Flemming, Casino Royale, Ch. 7 (1952).

This month marks the 50th anniversary of the world’s most famous movie spy, James Bond. Since many have compared my suaveness and sophistication with that of 007, celebrating Bond is a fitting topic for my edition of the monthly roundup of the best that the employment law blawgosphere has to offer.

 

007 is always on guard. In fact, it’s how he starts every movie. In 2012, one of the biggest issues from which employers need to be on guard is the National Labor Relations Board. According to John Holmquist’s Michigan Employment Law Connection, this includes keeping track of how employees use corporate email systems. And, according to Heather Bussing at the HR Examiner, employers also need to be on guard against overly broad workplace policies.

 

007 has never gotten anyone pregnant (as far as we know) despite ample opportunities. He did get married once, though, at the end of On Her Majesty’s Secret Service, only to have his arch-nemesis, Ernst Stavro Blofeld, kill his bride a mere hours after ceremony. Her untimely demise prevented the pair from ever procreating. If Bond did have children, however, he’d want to read up on the workplace rights of pregnant women. Two good places to start? No, Seriously - EEOC Targeting Pregnancy Discrimination, from Phil Miles’s Lawffice Space, and Pregnancy Discrimination Continues to Present Hurdle for Women, from Randy Enochs’s Wisconsin Employment & Labor Law Blog.

 

Live and Let Die brought some color to the James Bond series. Its villain, Mr. Big, was known as the Voodoo Baron of Death. The movie took Bond to the jazz joints of Harlem, to New Orleans, to the Everglades, and finally to the Caribbean. It also features one of the first on-screen mixed-race love scenes. (Interesting fact: Entertainment Weekly reports that the scene was edited from the film for its theatrical run in South Africa). If Bond can embrace diversity, shouldn’t we all? See The Benefits of Embracing Diversity in the Workplace, from CPEhr’s Small Biz HR Blog. Or, if the whole voodoo thing freaks you out, I recommend you read Employment Law Made Un-Scary, the ADA, at Mark Toth’s Manpower Employment Blawg, to calm you down.

 

The first 14 James Bond movies featured Lois Maxwell as Miss Moneypenny, the secretary of Bond’s boss and the head of MI6, M. Maybe M needs to read 5 Ways Not to Handle a Sexual Harassment Complaint, from the i-Sight Investigation Software Blog, in case Moneypenny ever gets tired of Bond’s cheesy come-ons and lodges a complaint. Does Bond really have the hots for Moneypenny, or is it just a game to him? Maybe they all need to read If you hire only people you have the hots for, is that sex discrimination?, from Robin Shea’s Employment & Labor Insider. Or, given how many foreign agents Bond has bedded over the years, maybe M should read $$$ reasons to have a second-language anti-harassment policy, from Eric Meyer’s The Employer Handbook Blog.

 

Goldfinger, the most iconic James Bond movie, involves a plot to steal America’s gold supply from Fort Knox. What if, instead, it was about an employee blowing the whistle on someone planning to do something illegal at a bank. Take a look at A New Whistleblower Retaliation Statute Grows Up: Dodd-Frank is the new Sarbanes-Oxley, from Dan Schwartz’s Connecticut Employment Law Blog, before you take action against that whistleblower. Something tells me that in the coming years, as these Dodd-Frank whistleblower claims mature, a lot of employers are going to feel like Bond strapped to that table.

 

No James Bond movie has ever been set in Canada. In fact, only one, The Spy Who Loved Me, even filmed in our neighbor to the North. According to Stuart Rudner, writing at the HR Examiner, Employment is Different in Canada. It looks like spy movies are different up their too.

 

Finally, the opening chase scene in Casino Royale ends with Bond taking on an entire army inside the Nambutu Embassy. If 007 was a U.S. citizen working in a foreign embassy, would he keep his rights under our discrimination laws? According to Robert Fitzpatrick on Employment Law, the answer is yes.

 

The Employment Law Blog Carnival will return… Our gracious curator, Eric Meyer, will host next month’s Employment Law Blog Carnival, at The Employer Handbook Blog, on November 14. If you want to participate, email him a link to your employment-law-related blog post by November 9. If you want to host a future edition of the Carnival, you can also let Eric know.

Because I am hosting this month’s Carnival, WIRTW will not run this Friday, and will return with to its regularly featured slot next Friday, with #247.

Employers or employees: who owns social media accounts?

Courts and businesses are grappling over the issue of who owns a social media account—the company or the employee responsible for maintaining it. The most high-profile case is the ongoing dispute between PhoneDog and Noah Kravitz over the company’s Twitter account (which Kravitz took with him when he resigned).

Last week, Eagle v. Moran [pdf] tossed its hat into the ring on this issue.

During 2008, while Dr. Linda Eagle was president of Edcomm, she established an account on Linkedin, which she used to promote Edcomm’s services, foster her reputation as a businesswoman, reconnect with family, friends, and colleagues, and build social and professional relationships. A co-worker had access to Eagle’s password and assisted her in maintaining her account. Edcomm, through its CEO, recommended that all employees participate in Linkedin and indicated that employees should list Edcomm as their current employer. Edcomm generally followed the policy that when an employee left the company, the company would “own” the Linkedin account and could “mine” the information and incoming traffic, so long as it did not steal the ex-employee's identity.

On June 20, 2011, Edcomm terminated Eagle, accessed her LinkedIn account and changed her password, and changed the account to display the name and photograph of its new CEO.

The court dismissed Eagle’s federal statutory claims, but refused to dismiss her state law misappropriation claims. Trial is set to begin today.

What are the takeaways for businesses deciding how to deal with the ownership of corporate social media accounts? I have some thoughts, but Eric Meyer, at the Employer Handbook Blog, beat me to it:

1. Start with a written social-media-specific agreement. This document should clearly set out the rights and expectations of the company and its employee. Also, include social-media language in your other broader-based non-disclosure agreements.
2. The company should create/register the account. This will indicate that the company has some ownership stake in the account. Also, be sure to consider the terms of use that any social-media company has in place for end users.
3. Change the password when employees leave. Make sure that you know the account password at all times and immediately change it when employees leave your company. That will reduce the risk that your former employee will act first and lock you out.

More succinctly, I can sum up the one key takeaway for employers and the one key takeaway for employees:

• For employers: If you have employees creating or using a work-related social media account, before you grant the employee access, put in writing who owns the account. Otherwise, you will end up litigating the issue after the fact.
• For employees: For gods sake, exercise some common sense and never give your employer the passwords to your personal social media or other online accounts. This whole mess could have been avoided if Eagle simply kept to herself what is supposed to be private.

On second thought, go ahead and enforce those noncompetes in mergers

Typically, a decision from the Supreme Court establishes the rule of law going forward on the issue specific to that case. Acordia of Ohio, L.L.C. v. Fishel (10/11/12) [pdf], however, is not your typical case. When the pro-business Ohio Chamber of Commerce and the pro-plaintiff Ohio Employment Lawyers’ Association join together on an issue, something is up.

In Acordia I, decided earlier this year, the Ohio Supreme Court held that if a noncompetition agreement does not provide for its transfer to successor and assigns, the company’s merger with another entity terminates the agreement. That decision, however, was not the end. The losing party filed a motion for reconsideration, supported by a whole bunch of business groups (including the aforementioned Ohio Chamber of Commerce and the Ohio Employment Lawyers’ Association).

Last week, the Supremes issued its decision reversing course:

Employee noncompete agreements transfer by operation of law to the surviving company after merger. The language in Acordia I stating that the L.L.C. could not enforce the employees’ noncompete agreements as if it had stepped into the original contracting company’s shoes or that the agreements must contain “successors and assigns” language in order for the L.L.C. to enforce the agreements was erroneous. We hold that the L.L.C. may enforce the noncompete agreements as if it had stepped into the shoes of the original contracting companies, provided that the noncompete agreements are reasonable under the circumstances of this case.

You can now return to your regularly scheduled noncompetition agreements.

WIRTW #246 (the “you get what you ask for” edition)

Watch this video, and then let’s talk:

The HR Capitalist, Kris Dunn, shared this video on his blog earlier this week. Believe it or not, the creator of this video, an online videogame company called Kixeye, actually uses this video for recruiting. Kixeye recently fired a manager and three other employees following complaints of racial harassment. Here’s Kris Dunn’s take on the synergy between the video and the harassment, which is 100 percent spot-on:

The question that's fascinating to me is if you can separate the way you market from the values you have as a company related to culture, people, etc. 

What do you think? I think if he needed to fire people, he did the right thing. But the marketing platform suggests that the company doesn't exactly reinforce treating others with respect.

Rock - meet hard place. Pot - meet Kettle.

Folks, if this video is the message you send to employees on their way into the company, it is any surprise that they act like children, or worse, once they’re hired.

No WIRTW next week. In its place, I’m hosting the Employment Law Blog Carnival on Wednesday. There’s still time (but not much) to send me a link if you want your blog included.

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Also, please remember that if you subscribe to my RSS feed, you need to re-subscribe at this link to ensure that you do not lose your daily updates.

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

Discrimination

• Utilityman can't climb utility poles, but has ADA claim against utility company — from Eric Meyer’s The Employer Handbook Blog
• ADA news: Court upholds termination of deaf employee — from Warren & Associates Blog
• ADA Attorney: Agent of Change or Personal Gain? — from Stephanie Thomas’s Proactive Employer Blog
• Telework as a Potential Reasonable Accommodation — from Mike Haberman’s Omega HR Solutions
• Trouble for Employers - The Obesity Based ADA Claim — from Rob Radcliff’s Smooth Transitions
• Slap Happy Celebration of Work Accomplishment Not Severe or Pervasive Enough for Sexual Harassment or Retaliation Claim — from Employer Law Report

Social Media & Workplace Technology

• Is being a former lingerie model grounds for dismissal? — from Workplace Prof Blog
• Password Demand Laws - A Fallen Tree In An Empty Forest — from Social Media Employment Law Blog
• How to Get Fired for Facebook Posts — from Social Media Today

HR & Employee Relations

• Boomers, Stop Yelling at Gen Y to Get Off Your Lawn — from Harvard Business Review
• A Step-by-Step Guide to On-Boarding New-Hires — from ERC Insights Blog
• Synonym showdown: Which word works best? — from Ragan.com
• Employment Law Basics: Coping With the Fair Credit Reporting Act — from TLNT
• That Sniffly, Sneezy Time Of Year: Can You Require Your Employees To Get a Flu Shot? — from Stoel Rives World of Employment
• Enforceability of Noncompete Agreements Post-Merger — from Delaware Employment Law Blog

Wage & Hour

• FMLA Back Pay Includes Overtime — from Phil Miles’s Lawffice Space
• Intermittent Leave for Foster Care & Adoption? Only If Employer Approves — from Dan Schwartz’s Connecticut Employment Law Blog
• Jury charge quiz for Fair Labor Standards Act cases — from Work Matters
• Is Gold's Gym Out Of Shape? Company Hit With Collective Action On Off-the-Clock Time — from Wage & Hour - Development & Highlights

Labor Relations

• Whiskey Bent and Hellbound: The NLRB May Target Employer Email Systems Next — from Employment Essentials
• NLRB is finding ways to implement its Employee Rights Notice posting, in spite of legal challenges. — from Employment Law Matters
• The NLRB Is Screwing Everything Up For Everybody. Seriously. — from Tim Eavenson’s Current Employment

What is main reason to limit access to social media profiles in hiring? EEO information, of course.

In Neiman v. Grange Mutual Casualty Co. (C.D. Ill. 4/26/12), the plaintiff claimed that he was not hired for a position because of his age. The employer argued that it could not have considered the plaintiff’s age because it had no idea how old he was when it made its decision. The plaintiff, however, argued that the employer must have been aware of his age because he included the year he graduated from college on his LinkedIn profile.

According to the court, that allegation was enough to get the plaintiff past the employer’s motion to dismiss:

Plaintiff alleges … that during telephone interviews, Heindel [the Vice President of Human Resources] did inquire about and confirm the year that Plaintiff and the candidate who was selected for the position each earned their degrees. According to the Complaint, the Plaintiff’s interview was conducted in February 2010. It is not difficult to determine that someone who graduated from college in 1989 probably was over the age of 40 in 2010. This is enough to place Integrity on notice that he is subject to the protection of the laws against age discrimination.

Businesses need to understand that without appropriate controls in place, reviewing Google, Facebook, LinkedIn, or any other publicly available online information before making a hiring decision is a risky proposition. These online searches could reveal all sorts of protected EEO information that no employer would want to discover as part of the hiring process.

Assume, for example, that the search revealed that a candidate belonged to a group for breast cancer survivors. You can imagine the potential problems (ADA and GINA, to name two) that could arise if the employer passes over this candidate. You would never ask an interviewee if she is a breast cancer survivor, but the unfettered searches of candidates’ online profiles could put you in the same untenable position as if you had asked.

I see three possible solutions to this potential risk. You should adopt one of these if you are searching applicants online profiles.

1. Don’t do online searches. The easiest way to avoid these potential EEO traps is simply not to conduct online searches. That omission from your screening process, however, will deprive you of valuable information you could learn about a candidate, such as whether s/he presents professionally or matches your corporate culture, how s/he communicates, or if s/he has ever trashed a former company or divulged confidential information. In other words, given the wealth of information you can learn, I think you are doing your organization’s hiring process a disservice by skipping online searches.

2. Outsource the process. Companies are popping up that will conduct these searches for you and return scrubbed reports clean of any potential EEO pitfalls. Of course, because these companies are external to your organization, they add cost to your hiring process.

3. Train someone internally. Alternatively, you can train someone within your organization, but extern to the hiring process, to do the same thing that the third-party vendors are doing—conduct the searches and return a scrubbed report to the hiring manager. Your organization will save the cost of retaining an outside company, but gain the benefit of the person making the hiring decision not coming into contact with protected EEO information.

Please indulge me while I shill (about my new book) for a second

I try not to shill too often. Sure, I let you know when and where you can see me speak (October 16 at the HR Compliance Conference / October 26 at the COSE Small Business Convention … please stop by and say hi). More often than not, though, I try to give a healthy dose of employment law news and information without any hard sells.

Today, however, is different. Yesterday, I completed my draft of The Employer Bill of Rights (of which I am extremely proud).

Here’s the description, courtesy of Amazon:

The Employer Bill of Rights: A Manager’s Guide to Workplace Law is a practical handbook designed to help managers and business owners navigate the ever-changing maze of labor and employment laws, rules, and regulations….

The Employer Bill of Rights: A Manager’s Guide to Workplace Law aids employers in navigating choppy personnel waters. It instructs employers on the ins and outs of the various laws. It provides employers with the confidence to make hiring, firing, and other personnel decisions free from the fear of litigation. No personnel decision or policy is litigation-proof, but The Employer Bill of Rights: A Manager’s Guide to Workplace Law will help businesses make informed decisions to hedge against the biggest blunders and errors that too often result in expensive and time-consuming lawsuits….

The Employer Bill of Rights: A Manager’s Guide to Workplace Law targets the owners of small to mid-size businesses and the managers that work in them. These businesses usually lack a dedicated in-house counsel responsible for, or knowledgeable in, labor and employment law. They often may also lack a human resources department. Without these internal resources, such businesses often shoot from the hip when making hiring, firing, pay, and other personnel decisions. Because of the intricacies and nuances of the ever-changing world of labor and employment law, these decisions can lead to costly mistakes. This book ensures that each personnel decision is made with the law—and the company’s best interests—in mind.

I’ll have a lot more to say about the book when (fingers crossed) it’s officially released on November 21, including some well-deserved thanks to my publisher, who has been invaluable as I navigated the writing process, and my partners, who provide me the freedom to chase these white rabbits down the hole.

For now, however, if you want to purchase some early holiday gifts, the book is on a pre-order sale at Amazon. I can’t think of a better stocking stuffer for that special HR person in your life.

Tomorrow, we’re back to your regularly scheduled employment law info.