What isn’t a reasonable accommodation?

Employers spend a lot time with employees figuring out reasonable accommodations they can make for disabled employees. There are many accommodations that employers must consider if necessary to enable a disabled employee to perform the essential functions of the job. One type of accommodation that typically beguiles employers is job restructuring, including reassignments to other positions.

Wardia v. Justice & Public Safety Cabinet Dept. of Juvenile Justice (6th Cir. 1/3/13) provides an example of how these principles can play out.

John Wardia was a Youth Worker at the Campbell County Regional Juvenile Detention Center. Following neck surgery, he became unable to perform physical restraints on juveniles, an essential function of his job. Wardia initially requested, and the employer granted, a temporary accommodation working a light-duty position in the control room. After Wardia’s doctor made clear the disability was permanent, he asked for one of two accommodations—being relieved by coworkers whenever the need to restrain arises, or a permanent reassignment to the control room. The employer denied both requests and terminated Wardia’s employment.

The court upheld the dismissal of Wardia’s disability discrimination lawsuit.

• Rejecting Wardia’s request that a co-worker relieve him when the need arose to restrain someone, the court concluded, “The ADA does not require employers to accommodate individuals by shifting an essential job function onto others.”
• Rejecting Wardia’s request for a permanent assignment to the control room, the court concluded, “Employers cannot be required to convert either rotating or temporary positions into permanent positions … [and] temporary light-duty positions for recuperating employees need not be converted into permanent positions.”

Just because a disabled employee asks for an accommodation does not mean that you have to grant the request. Engage in the employee in the interactive process, and make a reasoned decision that the accommodation will enable the employee to perform the essential functions of the job while protecting your business from undue hardship.

Firing of “irresistible” employee does not equal sex discrimination?

She’s unavoidable, I’m backed against the wall
She gives me feelings like I never felt before
I’m breaking promises, she’s breaking every law
She used to look good to me, but now I find her
Simply irresistible

Robert Palmer. “Simply Irresistible.” Heavy Nova. EMI Records, 1988.

Every now and again an employer wins a case that offends my sensibilities as an advocate for employers’ rights. This is one of those stories.

By now, you’ve likely read about the employee fired because her boss found her too attractive. You’ve also probably read how the Iowa Supreme Court concluded that an employee fired under these circumstances cannot pursue a claim for sex discrimination under that state’s civil rights laws.

Melissa Nelson worked as a dental hygienist for Dr. James Knight for ten-and-a-half years. Dr. Knight terminated Nelson at his wife’s request. Nelson never flirted with Dr. Knight or sought an intimate or sexual relationship with him. Dr. Knight, however, was attracted to her, and made several comments to her about the tightness of her clothes, and their effect on the tightness of a certain area of his clothes.

Following Nelson’s termination, Dr. Knight replaced her with another female. In fact, every hygienist who ever worked for Dr. Knight was female.

In Nelson v. Knight (12/21/12), the Iowa Supreme Court concluded that Nelson had not presented a sex discrimination claim.

So the question we must answer is … whether an employee who has not engaged in flirtatious conduct may be lawfully terminated simply because the boss views the employee as an irresistible attraction….

The civil rights laws seek to insure that employees are treated the same regardless of their sex or other protected status. Yet … Dr. Knight's unfair decision to terminate Nelson … does not jeopardize that goal. This is illustrated by the fact that Dr. Knight hired a female replacement for Nelson….

Nelson raises a legitimate concern about a slippery slope. What if Dr. Knight had fired several female employees because he was concerned about being attracted to them? Or what if Ms. Knight demanded out of jealousy that her spouse terminate the employment of several women? The short answer is that those would be different cases. If an employer repeatedly took adverse employment actions against persons of a particular gender because of alleged personal relationship issues, it might well be possible to infer that gender and not the relationship was a motivating factor.

It is likewise true that a decision based on a gender stereotype can amount to unlawful sex discrimination…. If Nelson could show that she had been terminated because she did not conform to a particular stereotype, this might be a different case. But the record here does not support that conclusion. It is undisputed, rather, that Nelson was fired because Ms. Knight, unfairly or not, viewed her as a threat to her marriage.

The media has heavily criticized this decision. That criticism is warranted. Yes, Dr. Knight only employs female hygienists, and replaced Nelson with another female. One could also argue that the doctor only fired Nelson because of her looks, not because of her gender. Those arguments, though, ignore the fact that if  she was a he, her looks would not have been an issue in her employment at all. The sex discrimination laws are supposed to insulate employees from employment decisions based on sex-based stereotypes, not protect the employers who make those decisions.

Nelson, a ten-plus-year employee, should not have to look for a new job merely because her boss might not be able to control himself around her. If the sex discrimination laws do not protect an employee like Nelson, then I fear we are taking a huge civil rights step backwards. 

Fringe “religions” (veganism?) raise interesting problems for accommodation requests

Like most medical facilities, Cincinnati Children’s Hospital appears to require that all of its employees receive an annual flu shot. It fired Sakile Chenzira, a customer service representative, for refusing to comply. Chenzira sued, claiming that because the flu vaccine contains eggs the requirement violated her religion—veganism—which prohibits the ingestion of any animals or animal by-products.

In Chenzira v. Cincinnati Children’s Hosp. Med. Ctr. (S.D. Ohio 12/27/12) [pdf], the federal court denied the hospital’s motion to dismiss the religious discrimination claim. The core issue the court decided is whether veganism is a sincerely held religious belief, or merely a moral or secular philosophy or lifestyle (as the hospital argued). In support of her argument, Chenzira cited an essay, The Biblical Basis of Veganism. She also cited bible verse to her employer when she made her request for a religious accommodation.

In denying the motion to dismiss, the court stated:

The Court finds that in the context of a motion to dismiss, it merely needs to determine whether Plaintiff has alleged a plausible claim. The Court finds it plausible that Plaintiff could subscribe to veganism with a sincerity equating that of traditional religious views.

In other words, the court punted. It allowed the parties to test in discovery whether Chenzira’s veganism rises to the level of a sincerely held religious belief. For what it’s worth, the lone other case I could find that discussed whether veganism is a religion worthy of protection under employment discrimination laws—Friedman v. Southern Cal. Permanente Med. Group (Cal. Ct. App. 9/24/02)—concluded that veganism is not a religion, but a personal philosophy and way of life.

This case raises an interesting question—how far should businesses go to accommodate employees’ requests for special treatment. I cover this issue in depth in The Employer Bill of Rights: A Manager’s Guide to Workplace Law, concluding, “Sometimes, the path of least resistance makes sense.”

For a hospital, there may not be a path of least resistance when comes to public health issues such as flu vaccinations. Other businesses, however, have to balance the burden of granting the accommodation versus the risk of a lawsuit (and the costs that go with it). In many cases, the accommodation should win out, because it is easier and less costly than denying the request and eating a lawsuit, even if it’s a defensible lawsuit.

For example, if you face this same vaccination issue at your widget company, is there a harm in letting employees opt out on religious ground, even if it’s a borderline (at best) religion, like veganism. You can defend your decision to deny the request based on the bona fides of the claimed religion. But, where does that get you? Are you on right side of the law? Probably. Have you irreparably damaged your relationship with your employee, while at the same time demonstrating to your entire workforce that you practice policies of exclusion instead of inclusion? Possibly.

In other words, there are more factors to consider other than answering the question, “What does the law say about this?” How your incorporate those other factors into your accommodation decision-making is often more important than simply answering the legal question.

[Hat tips: The Employer Handbook Blog, Employment & Labor Insider, and Jottings by an Employer’s Lawyer]

WIRTW #255 (the “back to the future” edition)

This week’s “WIRTW” is all about looking ahead. On Wednesday, I shared the one New Year’s resolution all employers should make for 2013. This week, some of my blogging brethren also shared their thoughts on resolutions employers should make for the coming year.

• 2013 New Years’ Resolutions for Employers — from Tim Eavenson’s Current Employment
• Countdown to 2013: Five Key Predictions for the Future Workforce — from EmployerBrief
• Evil Skippy’s Workplace Resolutions for 2013 — from Evil Skippy at Work
• The Top 4 Employment Law Concerns for Small Businesses in 2013 — from CPEhr
• HR Predictions for 2013 — from Mike Haberman’s Omega HR Solutions
• Top Five New Year’s Resolutions for Wage/Hour in 2013! — from Wage & Hour Defense Institute
• HR’s 2013 “To Do” List — from China Gorman
• 6 HR tech resolutions for 2013 — from Technology for HR

Here’s the rest of what I read this week (and last week):

Discrimination

• With employers like THIS, it's gonna be a busy 2013 for the lawyers — from Eric Meyer’s The Employer Handbook Blog
• Who Says I’m a Girly Man? Doth Sayeth the EEOC — from Molly DiBianca’s Delaware Employment Law Blog
• Company Fires “An Old Penny That Keeps Coming Back?” — from Employment Discrimination Report
• Bad “Business Judgment” is not Discrimination – Veronese v. Lucasfilm — from California Labor and Employment Defense Blog
• Policy for Requesting Medical Info Runs Afoul of ADA, Says EEOC — from The Proactive Employer Blog
• Critics are Unfairly Attacking the Iowa Supreme Court's Sex Discrimination Ruling in Nelson v. Knight — from Iowa Employment Law Blog
• The EEOC’s Strategic Enforcement Plan for 2013 — from Warren & Associates Blog

Social Media & Workplace Technology

• Should C-suites and Boards of Directors be Exempt from Social Media Training? — from Social Media Today
• BYOD: It’s Way Ahead of the Law, But You Need a Policy — from HR Daily Advisor
• Someone sent a dirty email from my work account — but it wasn’t me! — from Ask a Manager
• Defining who speaks for a company and when important in age of social media — from The Shreveport Times
• Six states outlaw employer snooping on Facebook — from CNET

HR & Employee Relations

• Is There Room for Humanity in HR? — from We Know Next
• President Obama Signs Trade Secrets Clarification Act and House of Representatives Considers Enhancing Economic Espionage Act Penalties — from Trading Secrets
• Restrictive Covenants in Employment Agreements: Guarding the Family Jewels, Part I and Part II — from The Emplawyerologist
• 6 Action Steps When Confronting Employee Theft — from i-Sight Investigation Software Blog

Wage & Hour

• My coworker is working off the clock — from Evil HR Lady, Suzanne Lucas
• 2 Recent Cases Draw Distinction Between Volunteers and Employees — from Overtime Law Blog

Labor Relations

• NLRB Continues to Assert Its Influence Over Non-Union Employees — from Labor Relations Counsel
• National Labor Relations Board Rules Employers Must Bargain With Union Representatives Over Discretionary Discipline — from Labor Relations Today

Lactation rights case teaches valuable lesson on responding to employee complaints

Believing that her employer, Roche Surety & Casualty Co., had deprived her of her right under the Fair Labor Standards Act for a time and place to express breast milk, Danielle Miller put her request in writing via an email to her supervisor. She claimed that the company retaliated against her after she emailed her supervisor with her request. That email stated:

Shannon, I’m scheduled tomorrow all day at the bail office, so therefore, I need to know where I can use my breast pump at and who will cover the office while I’m doing it. I’ll need to be able to do it at least twice while there. Please let me know. Thanks.

In Miller v. Roche Surety & Casualty Co. (11th Cir. 12/26/12) [pdf], the appellate court concluded that Miller had not filed a complaint sufficient to raise the protections of the FLSA’s anti-retaliation provision:

Although the filing of a complaint … need not be in the form of an official complaint, … or even be in writing, some degree of formality is required in order that the employer has fair notice that an employee is lodging a grievance….

Neither the context nor content of Miller’s email put Roche on notice that she was lodging a grievance. Indeed, the circumstances surrounding the email would not have informed a reasonable employer that Miller was filing a complaint. Before sending the email, Miller had never asked for, or been denied, a time or place to express breast milk. She was given breaks at her leisure without question or criticism. Miller decided to express breast milk in her office without notifying any Roche supervisors. She did not complain or ask for a different location….

This case appears to have been an easy call for the 11th Circuit, since no one could possible interpret Miller’s email as a complaint. Nevertheless, this case teaches employers an important lesson: respond when an employee raises an issue, no matter how silly or trivial it may seem. Although the opinion is vague, it is safe to assume that the genesis of Miller’s lawsuit was a lack of any response to her email. Could this company have staved off a lawsuit by a simple reply to the email? Next time an employee communicates an issue with you, think about whether it is worth the risk to let the concern go un-addressed.

[Hat tip: Wage & Hour Law Update and Joe’s HR & Benefits Blog]

Your New Year’s resolution: draft a social media policy

Recently, Proskauer Rose published the results of its second survey covering social media in the workplace. Social Media in the Workplace Around the World 2.0 [pdf] questioned 250 multinational businesses on their social media policies and practices.

The results?

• 75 percent of businesses reported using social media for business purposes
• 77 percent permit at least some employee to access social media sites at work for non-business purposes,
• 69 percent have a social media policy,
• 46 percent have a social media policy that covers on-duty and off-duty activities.
• 33 percent their employees on the appropriate use of social media.

Employers, here is your New Year’s Resolution for 2013—draft a social media policy and train your employees on what it means.

Social media is still novel. Most of your employees do not understand how their off-duty online activities can impact their jobs. If you want to hold your employees accountable for what they say and do online both at work and outside of work, establish expectations. Put it in writing and explain to your employees what the policy means. That way, if you have to take action against an employee for something he or she says online, no one has any excuses.

According to a recent study, 88 percent of New Year’s resolutions fail. Strive to be among the minority that succeed in keeping their resolutions. Your employees will thank you.

Happy New Year!

Best of 2012: Numbers 2 and 1

The last day of 2012 brings my year-end countdown to a close. Here are my two favorite posts of the past year.

2. How to avoid your organization’s muppet manifesto

1. A letter to the NLRB on its latest position against confidential workplace investigations

Best of 2012: Numbers 4 and 3

Today, numbers 3 and 4 on the countdown.

4. New pregnancy legislation is unneeded; the law already requires accommodation of expecting employees

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

Best of 2012: Numbers 6 and 5

My year-end countdown continues with the my number 5 and 6 favorite posts of the year.

6. Even terminations over “genitalia sandwiches” can generate lawsuits

5. Does your social media policy educate about being “profersonal?”

Best of 2012: Numbers 8 and 7

Let’s continue our walk through my favorite posts of the past year.

8. When defending employment cases, chasing attorneys’ fees is a snipe hunt

7. Don’t forget these 5 security issues in your BYOD policy

Best of 2012: Numbers 10 and 9

Today, I start my annual year-end countdown of the year’s top posts. In years past, I’ve done the 10 most important issues and the 10 most popular posts based on page views. This year, I ‘m simply using my 10 favorite posts from the past year. Enjoy my nostalgic walk down memory lane.

10. The 5 little words that will cause your company a huge headache

9. Firing an employee? Tell them! (don’t Milton the termination)

WIRTW #254 (the “until the end of the world” edition)

Today is December 21, 2012, which, according to the Mayans, is the day the world ends. Or, it’s the day that they simply stopping counting days on their calendar. Or, it’s entirely a coincidence.

Either way, one thing will end today for certain— my original posts for the year. As I’ve done in years past, on Monday I will start counting down my top 10 posts of the past year, two per day through December 31. I’ll be back on January 2, 2013, with fresh content. Please have a happy, healthy, and safe holiday.

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Today is the last day to vote for the ABA Journal Blawg 100. If you’ve voted, thank you. If you haven’t, what are you waiting for?

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

Discrimination

• Does the law require transfers for employees seeking medical treatment? — from Eric Meyer’s The Employer Handbook Blog
• The right way to handle a request for a religious accommodation — from Warren & Associates Blog
• Can Volunteers Sue For Discrimination? — from LE Blog
• Does Ho Ho Ho = Prostitutes? — from Evil Skippy at Work
• Can You Withhold Severance To An Employee Who Files An EEOC Charge? — from Employment Discrimination Report

Social Media & Workplace Technology

• Enforcing an Unwritten Social-Media Policy — from Molly DiBianca’s Delaware Employment Law Blog
• Internet Defamation Claims on the Rise as Online Reviews Impact the Bottom Line — from netWORKed Lawyers
• Fired for What!? - Defending Her Hair on Facebook — from Phil Miles’s Lawffice Space
• Twitter now has more than 200 million active monthly users — from The Verge
• The Sedona Conference® Publishes Primer on Social Media (Pubic Comment Version) — from Electronic Discovery Law
• Like or dislike? Social media profiles and employer access — from Technology for HR
• 5 pitfalls to avoid when responding to rogue employees — from Ragan.com

HR & Employee Relations

• My boss says I smell bad from Evil HR Lady, Suzanne Lucas
• Would You Enforce Workplace Policy If You Had to Follow Them? — from Blogging4Jobs
• An Employer’s Opinion on How To Quit Your Job — from Lifehacker
• How to Prevent/Deal With Employee Theft in the Workplace – Part 1 — from i-Sight Investigation Software Blog
• Medical Device Industry Remains a Hotbed for NonCompete Litigation — from Trade Secrets & Non-Compete Blog
• How Not to Unwittingly Reveal Company Secrets — from Harvard Business Review
• Confidentiality Clauses in Employment Agreements: Who’s Minding the Store, Conclusion — from The Emplawyerologist
• Holidays in the workplace: Listen to Bad Santa, and do precisely the opposite — from Robin Shea’s Employment and Labor Insider
• Letter to the Editor, Cleveland Plain Dealer on Background Checks Story — from employeescreenIQ Blog

Wage & Hour

• A Recent Off-The-Clock Case Should Not Breed Complacency — from Wage and Hour Laws Blog
• Independent contractor or employee? — from EmployerLINC

Labor Relations

• Libertarians and right to work laws — from Walter Olson’s Overlawyered
• Right-to-Work or Wrong-to-Work? Why the Michigan Vote Makes Sense — from Tim Sackett at TLNT
• Hell Freezes Over: Michigan is Right-to-Work — from Labor Relations Institute

Happy Holidays.

The NLRB’s holiday gift: a Facebook firing decision

Earlier today, I suggested that the appropriate gift on the 5th day of Employment Law Christmas is 5 Facebook firings. Today, the NLRB made good on this suggestion by publishing its decision in Hispanics United of Buffalo [pdf].

Hispanics United concerned the terminations of five employees on the heels of a Facebook discussion critical of another employee’s job performance. Last year, the Administrative Law Judge ruled that the terminations violated the non-union employees’ rights to engage in the protected concerted activity.

The NLRB affirmed the earlier decision.

There should be no question that the activity engaged in by the five employees was concerted for the “purpose of mutual aid or protection” as required by Section 7. As set forth in her initial Facebook post, Cole-Rivera alerted fellow employees of another employee’s complaint that they “don’t help our clients enough,” stated that she “about had it” with the complaints, and solicited her coworkers’ views about this criticism. By responding to this solicitation with comments of protest, Cole-Rivera’s four coworkers made common cause with her, and, together, their actions were concerted …, because they were undertaken “with … other employees.” … The actions of the five employees were also concerted … because, as the judge found, they “were taking a first step towards taking group action to defend themselves against the accusations they could reasonably believe Cruz-Moore was going to make to management.” …

The Facebook comments here fall well within the Act’s protection. The Board has long held that Section 7 protects employee discussions about their job performance, and the Facebook comments plainly centered on that subject. As discussed, the employees were directly responding to allegations they were providing substandard service to the Respondent’s clients. Given the negative impact such criticisms could have on their employment, the five employees were clearly engaged in protected activity in mutual aid of each other’s defense to those criticisms.

This case clarifies a two key points for employers.

     1. Employees can engage in protected concerted activity even if their online conversations take place off-duty and via their own computers.

     2. The employer argued that the employees’ Facebook posts lost any protections because they were a form or harassment or bullying in violation of company policy. The Board did not buy that argument, concluding that the National Labor Relations Act trumps any workplace bullying or harassment policy. It did, however, leave open the possibility that objectively and subjectively illegal harassment (that which is on the basis of “race, color, sex, religion, national origin, age, disability, veteran status, or other prohibited basis”) would strip the employees’ comments of their protected status.

The 12 Days of Employment Law Christmas

Since the holidays are almost upon us, and the news is a little slow, I thought I’d have a little fun. So I wrote a song. For your listening pleasure (you have to sing yourself; trust me, there’s no pleasure if I do it for you), I present The 12 Days of Employment Law Christmas.

(Some musical accompaniment)

On the first day of Christmas,
my employment lawyer gave to me
a lawsuit for my company.

On the second day of Christmas,
my employment lawyer gave to me
2 trade secrets
and a lawsuit for my company.

On the third day of Christmas,
my employment lawyer gave to me
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

On the fourth day of Christmas,
my employment lawyer gave to me
4 collective actions,
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

On the fifth day of Christmas,
my employment lawyer gave to me
5 Facebook firings,
4 collective actions,
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

On the sixth day of Christmas,
my employment lawyer gave to me
6 guys-a-lying,
5 Facebook firings,
4 collective actions,
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

On the seventh day of Christmas,
my employment lawyer gave to me
7 sex harassers,
6 guys-a-lying,
5 Facebook firings,
4 collective actions,
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

On the eighth day of Christmas,
my employment lawyer gave to me 
8 discriminating managers,
7 sex harassers,
6 guys-a-lying,
5 Facebook firings,
4 collective actions,
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

On the ninth day of Christmas,
my employment lawyer gave to me
9 ladies lactating,
8 discriminating managers,
7 sex harassers,
6 guys-a-lying,
5 Facebook firings,
4 collective actions,
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

On the tenth day of Christmas,
my employment lawyer gave to me
10 labor campaigns,
9 ladies lactating,
8 discriminating managers,
7 sex harassers,
6 guys-a-lying,
5 Facebook firings,
4 collective actions,
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

On the eleventh day of Christmas,
my employment lawyer gave to me
11 personnel manuals,
10 labor campaigns,
9 ladies lactating,
8 discriminating managers,
7 sex harassers,
6 guys-a-lying,
5 Facebook firings,
4 collective actions,
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

On the twelfth day of Christmas,
my employment lawyer gave to me
12 disabled workers,
11 personnel manuals,
10 labor campaigns,
9 ladies lactating,
8 discriminating managers,
7 sex harassers,
6 guys-a-lying,
5 Facebook firings,
4 collective actions,
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

Happy holidays!

The importance of getting your story straight

Many discrimination cases hinge on the issue of pretext—whether the employer’s proffered non-discriminatory reason was the real reason for the adverse action, or subterfuge to cover up illegal discrimination.

One way for an employee to establish pretext is to demonstrate that the employer’s reason for the adverse action changed over time. As the 6th Circuit explained in Thurman v. Yellow Freight System: “An employer's changing rationale for making an adverse employment decision can be evidence of pretext.”

For example, in Asmo v. Keane, Inc. (another 6th Circuit case), a manager gave the employee five different reasons for her termination at the time of the dismissal. However, when the company responded to the EEOC charge, and again during that manager’s deposition, the company and manager provided different reasons. The Court held that the employer’s changed explanation required that the matter be submitted to a jury:

It is unclear how Santoro [the manager] initially came up with these [five] reasons for termination, but the fact that they were later eliminated, and they happen to be the two reasons that Santoro gave that are false, is very suspicious. It appears that Santoro offered any and all reasons he could think of to justify his decision to Asmo, whether or not they were true. Once a lawsuit was filed and Keane knew the reasons would be subject to scrutiny, it changed the justifications … to include only those that were either circumstantially true or could not be as easily penetrated as false.

What lessons can you take away from this case? An employer’s reason for a termination is fixed at the time of termination. Changing that reason in litigation will only help the employee prove his or her case by offering evidence of pretext. For this reason it is vitally important that companies have all their ducks in a row before terminating an employee. Conduct a full investigation before pulling the termination trigger. Have a bona fide reason and stick to it.

If the proffered reason is based on an honest business judgment, it is unlikely that a court will disturb it. If, however, the reason shifts over time, it is conceivable that a jury will find pretext and concluded that discrimination, and not one of your changing reasons, motivated the decision.

Ohio Supreme Court all but eliminates the intentional tort exception to workers’ comp claims

The history of the workplace intentional tort as an exception to the state workers’ compensation system has  a long and tortured history in the annals of Ohio jurisprudence. In Houdek v. ThyssenKrupp Materials N.A., Inc. (Ohio 12/6/12), the Ohio Supreme Court may have put the final nail in the coffin of this long misused claim.

Generally speaking, the state workers’ comp law providers immunity to employer from their employees’ workplace injuries. In Blankenship v. Cincinnati Milacron Chems., Inc. (1982), the Ohio Supreme Court recognized a cause of action for an employer’s intentional tort against its employee, holding that because intentional tort claims do not arise out of the employment relationship, the workers compensation laws do not provide immunity from suit.

Blankenship started at three-decade odyssey to define the meaning of “intention.” This odyssey included three different statutes, the first two of which the Court declared unconstitutional. The current statute (R.C. 2745.01), the constitutionality of which the Court in 2010 blessed twice, provides:

(A) In an action brought against an employer by an employee, or by the dependent survivors of a deceased employee, for damages resulting from an intentional tort committed by the employer during the course of employment, the employer shall not be liable unless the plaintiff proves that the employer committed the tortious act with the intent to injure another or with the belief that the injury was substantially certain to occur.

(B) As used in this section, “substantially certain” means that an employer acts with deliberate intent to cause an employee to suffer an injury, a disease, a condition, or death.

(C) Deliberate removal by an employer of an equipment safety guard or deliberate misrepresentation of a toxic or hazardous substance creates a rebuttable presumption that the removal or misrepresentation was committed with intent to injure another if an injury or an occupational disease or condition occurs as a direct result.

In Houdek, the plaintiff brought suit for an intentional tort under 2745.01 after being struck by a sideloader. He alleged that his employer deliberately intended to injure him by requiring him to work in a dimly lit aisle without a reflective vest and by failing to place orange safety cones or expandable gates to prevent machinery from entering aisles where employees were working.

The Court concluded that for an employee to prevail on an intentional tort claim, the employee must prove that that the employer deliberately intended to cause injury:

Absent a deliberate intent to injure another, an employer is not liable for a claim alleging an employer intentional tort, and the injured employee's exclusive remedy is within the workers' compensation system.

The Court made clear that the law differentiates between accidents and intentional injuries, and that 2745.01 provides a remedy only for the latter:

Here, Houdek’s injuries are the result of a tragic accident, and at most, the evidence shows that this accident may have been avoided had certain precautions been taken. However, because this evidence does not show that ThyssenKrupp deliberately intended to injure Houdek, pursuant to R.C. 2745.01, ThyssenKrupp is not liable for damages resulting from an intentional tort.

The lone dissenter, Justice Pfeifer, laments that the majority’s decision ends the workplace intentional tort claim under Ohio Law:

The court below … wrote what the consequences would be if my dire evaluation of the law was indeed correct: “As a cautionary note, if Justice Pfeifer is correct, Ohio employees who are sent in harm’s way and conduct themselves in accordance with the specific directives of their employers, if injured, may be discarded as if they were broken machinery to then become wards of the Workers’ Compensation Fund. Such a policy would spread the risk of such employer conduct to all of Ohio’s employers, those for whom worker safety is a paramount concern and those for whom it is not. So much for “personal responsibility” in the brave, new world of corporations are real persons.” More’s the pity.

Houdek is a huge victory for Ohio’s employers. “Deliberate intent” is a very high standard for injured employees to meet, and should protect employers  except in the most egregious of circumstances.

What cases will still prove problematic for employers under this statute? Because of presumption of deliberate intent created by 2745.01(C), those in which it is alleged that the employer deliberately removed an equipment safety guard or deliberately misrepresented a toxic or hazardous substance. How do you guard against these intentional tort cases?

• Train all of your employees about the importance of safety guards, and the dangers of toxic and hazardous substances.
• Inspect all equipment at the beginning and end of each shift to ensure that safety guards are in the proper place.

Some thoughts on Sandy Hook

There is nothing to say that can capture the grief and inhumanity we all witnessed last Friday. For what it’s worth, and because these events of unmistakable tragedy seem to be occurring at a more rapid clip, let me share some of my previous thoughts on how to cope when violence invades the workplace.

• In the wake of a tragedy, more on humanity and human resources
• Do you know what to do when violence invades your workplace?

In the wake of this tragedy, lots will be written about the need for tougher gun laws, better help for the mentally ill, and whether 24/7 news coverage of these tragic events helps encourage the next person to shoot for his 15 minutes of fame. The reality is that nothing can stop these events from happening. If an evil or sick person wants to get his or her hands on some guns and impose his evil or illness on a group of innocent people, there is nothing anyone to can do to stop it. All we can do is offer our prayers in its aftermath.

WIRTW #253 (the “words to live by” edition)

The Greenhouse Tavern is my favorite restaurant, anywhere. If you live in Cleveland and have not paid it a visit, do your palate a favor and get yourself to E. 4th Street to sample its amazing food (do not miss the confit-fried chicken wings). And, if you don’t live in Cleveland but find yourself visiting my fine town, put the Greenhouse at the top of your list of restaurants at which to dine.

It’s not just the amazing food that makes the Greenhouse so memorable. Its chef/owner, Jonathon Sawyer, is one of the most gracious small business owners in Cleveland. I had the pleasure of meeting Chef Sawyer several years ago at Hopkins Airport while both of our families were waiting to board a flight to Disney World. He and his wife treated my wife and me like royalty on our subsequent visit to his restaurant. As good as his food is (and it really is that good), it tastes that much better when the business is run by someone who pays such acute attention to his patrons.

For that reason, I paid special attention to a recent Washington Post Q&A column, entitled, On Small Business, which asked several small business owners, including Chef Sawyer, the following question: “Have you found any simple, inexpensive methods to make your workspace more employee-friendly? What tricks have you used to make sure your staff is happy with your office?” This was part of Chef Sawyer’s answer: “It starts from the top — employees must want to work with you, not for you. We’ve found the most success in this mutual respect….” You cannot go wrong following this advice in your own business and with your own employees.

[Hat tip: Steve Suttell]

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Have you voted yet for the ABA Journal Blawg 100. Polls close next Friday, Dec. 21.

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

Discrimination

• EEOC: Requiring Old Medical Documentation Violated ADA — from Joe’s HR and Benefits Blog
• Testimony for U.S. Civil Rights Commission Hearing on Background Checks — from Nick Fishman’s employeescreenIQ Blog
• Criminal Background Checks: Good in Theory, Problems in Practice — from LP Magazine
• EEOC Plans to Heavily Attack Pregnancy Discrimination in the Workplace — from Wisconsin Employment & Labor Law Blog
• Dear Evil Skippy: Is It Religious Discrimination To Have Christmas Trees At Work? — from Evil Skippy at Work
• Employers, don't let that "protected" employee hold you hostage — from Robin Shea’s Employment and Labor Insider
• When Dads do “Mom work,” how much accommodation is required? — from HR Cafe

Social Media & Workplace Technology

• Who Owns Your Company’s Social Media? Are You Sure? — from Dan Schwartz’s Connecticut Employment Law Blog
• Big Brother Can’t Ask For Access To Your “Personal” Social Media Accounts Either … More Social Media Legislation Proposed In California — from Trading Secrets
• Proposed Michigan Social Media Law Banning Employer Access to Employee Passwords - Not Something to “Like” — from Jason Shinn’s Michigan Employment Law Advisor
• Social Media Horror Stories: More to Come In 2013 — from Alabama Employment Law Report
• MATH: How Much Would Banning "Reply All" Save Your Company? — from The HR Capitalist, Kris Dunn

HR & Employee Relations

• Santa Fired For Telling A 3-Year-Old The Maple Leafs Suck — from Deadspin
• Keys For A Successful Holiday Party – Infographic — from Stephanie Thomas’s The Proactive Employer Blog
• Rudeness at Work: What's Your Story? — from Harvard Business Review
• The Trade Secret Litigator's 7 Deadly Sins of Former Employers in Trade Secret and Non-Compete Disputes — from Trade Secret Litigator Blog
• Confidentiality Clauses in Employment Agreements: Who’s Minding the Store? Part II — from The Emplawyerologist
• More Thoughts on Arbitrating Non-Competes — from Rob Radcliff’s Smooth Transitions
• Slack To The Future: The 50 Best Places To Work In 2013 — from Workplace Diva
• 10 terrible holiday gifts from bosses — from Evil HR Lady, Suzanne Lucas

Wage & Hour

• FMLA Leave for Same-Sex Couples to be Clarified by Supreme Court's DOMA Decision? — from Jeff Nowak’s FMLA Insights
• Fact or Fiction: Breaks/lunch taken at work may qualify for FMLA — from Eric Meyer’s The Employer Handbook Blog
• Employers Provide Too Little Leave Time — from Blogging4Jobs
• Tis the Season of Holiday Hiring — from DOL's Work in Progress
• What Deductions Are Allowed From an Exempt Employee’s Salary Under the FLSA? — from Minnesota Employer
• A Crash-Course in Paid Vacation and Holiday Policies — from CPEhr
• Man Fired After Complaining About Clocking In May Maintain Lawsuit For Retaliation — from Overtime Lawyer Blog

Labor Relations

• Great moments in labor arbitration — from Walter Olson’s Overlawyered
• Would You Buy THIS Union Made Product? — from Mike Haberman’s Omega HR Solutions
• Labor and the “Union” Name: Is a Rebrand Really the Answer? — from LaborPains.org

Holiday parties say a lot to about your workplace culture … for good and for bad

Last week I shared my thoughts on avoiding liability during your workplace holiday parties. Among the 7 tips I shared was:

Normal work rules and standards apply to holiday parties. As a subtle reminder, consider holding an anti-harassment refresher in anticipation of the party.

Shiner v. State Univ. of N.Y. (W.D.N.Y. 11/2/12) illustrates what can happen when a company ignores this advice and allows an office party to get out of hand.

Lesley Shiner worked as a clerk at the University at Buffalo Dental School. Dr. Jude Fabiano was the school’s Associate Dean and Steve Colombo its Director of Clinical Operations. Each year the school holds an annual Christmas party. Shiner attended the 2010 party despite her reservations about sexually inappropriate conduct and sexually explicit comments made by Colombo and Fabiano during the 2008 and 2009 parties.
As it turned out, Shiner should have listening to her inner voice and stayed home. In her lawsuit, she alleged that during the party Fabiano:

• Fondled her breasts.
• Inserted his tongue in her ear.
• Chased her around a table.
• Grabbed her by her neck and bent her over a table.
• Pushed her face together with that of another female employee and told them to kiss, stated that he wanted some “girl on girl” action, and asked for the three of them to be together sexually.
• Puller her on his lap and asked her to meet him somewhere after the party.
• Pinched and squeezed her ribs when she resisted his advances.

Colombo encouraged and cheered Fabiano’s behavior. At one point during the party, Colombo grabbed Shiner’s hand and pulled her onto his lap, stating to Fabiano “you might be the boss, but I have her now.”

All you need to know about the Shiner case is that, unsurprisingly, the court denied the school’s motion to dismiss.

This case, however, holds a deeper lesson about corporate culture and your workplace. If your company has a culture of condoning this type of behavior, no policy, and no amount of training, will render your holiday parties (or any workday, for that matter) safe. You need to decide what kind of company you want to be, and set the tone year-round. Then, when it comes time for the annual holiday party, you do not have to worry about an employee being bent over a table or asked for a threesome. And, if it happens, your employees will have confidence that your company will arrest the offending behavior quickly and severely.

12 is the magic number: 12 thoughts for your workplace

Today is 12/12/12. The number 12 holds a lot of historical significance. There are 12 tribes of Israel, 12 months in the Gregorian calendar, 12 signs of the zodiac, 12 days of Christmas, and 12 original studio albums released by the Beatles (in the UK).

Since today won’t come around for another 100 years, I thought I’d honor its unique date with 12 thoughts to help better your workplace.

1. Review your employee handbooks and other personnel policies (annually is preferred).

2. If you don’t have policies addressing social media and the other roles technology plays in your workplace, draft one(and train your employees on them).

3. Hold company-wide harassment training (least once every two years, if not every year).

4. Make it a point to rid your workplace of bullies (even though there is no law against it).

5. Even if your business is not a jurisdiction that bans sexual orientation discrimination, adopt a policy outlawing it anyway.

6. Audit your wage and hour practices.

7. Document all discipline and performance problems.

8. Do not make promises to your employees that you cannot keep.

9. Make hiring and firing decisions based on performance.

10. Be more understanding of your employees’ family responsibilities outside of the office.

11. Employ the golden rule — treat your employees as you would want to be treated.

12. Have fun (but not too much fun).