You are what you wear—at least according to the 6th Circuit and “donning and doffing”

Section 203(o) of the Fair Labor Standards Act allows an employer to refuse to pay employees for time spent changing clothes if it has been excluded by custom or practice under a bona fide collective bargaining agreement:

Hours Worked.—In determining for the purposes of sections 206 and 207 of this title the hours for which an employee is employed, there shall be excluded any time spent in changing clothes or washing at the beginning or end of each workday which was excluded from measured working time during the week involved by the express terms of or by custom or practice under a bona fide collective-bargaining agreement applicable to the particular employee.

Yesterday, in Franklin v. Kellogg Company [pdf], the 6th Circuit was presented with the question of whether the donning and doffing of safety equipment constitutes “changing clothes” under section 203(o). At issue was Kellogg’s long-standing policy, adopted by its union contract, of not paying employees for time spent putting on and taking off company-provided uniforms (pants, snap-front shirts bearing the
Kellogg logo and employee’s name, and slip-resistant shoes) and standard safety equipment (hair and beard nets, safety glasses, ear plugs, and bump caps).

After noting that the Department of Labor has changed its mind at least three times on whether safety equipment qualifies as “clothes” under 203(o), the 6th Circuit applied a common sense, dictionary definition to settle the dispute:

A leading dictionary defines “clothes” as “clothing,” which itself is defined as “covering for the human body or garments in general: all the garments and accessories worn by a person at one time.” … Thus, the plain meaning of the word “clothes” is quite expansive. However, because the statute indicates that § 203(o) applies to changing into clothes worn during the workday, Congress was referring to clothes worn for the workday and not simply “ordinary” clothes. … Accordingly, there is no reason to limit the definition of clothes to uniforms, which are made up of pants and shirts…. Instead, “clothes” within the meaning of § 203(o) refers to any “covering for the human body or garments in general,” particularly those worn for work….

Given the context of the workday, § 203(o) clearly applies to the uniform at issue in the case at hand. The remaining items—hair and beard nets, goggles, ear plugs, nonslip shoes, and a bump cap—are also properly construed as clothes within the meaning of § 203(o). Each of these items provides covering for the body. Although they also provide protection to the body, we see no reason to distinguish between protective and non-protective clothes. It is arguable that even the uniform, which is clearly clothing, provides protection to the body. We recognize that there may be some heavier protective equipment than what is at issue here that is not clothing within the meaning of § 203(o). However, the items at issue here are simply “standard safety equipment.”

In other words, because the safety equipment serves as a covering for the body, it qualifies as “clothes” under section 203(o).

Unless you are a unionized employer with a contract that codifies a custom or practice of nonpayment for time spent changing clothes, this opinion is of little practical import. It serves, however, as a good example of a court cutting to the chaff and applying its common sense to arrive at a practical result.

Tomorrow, I’ll be back with an analysis of the second part of this opinion (which will be of greater interest to many more employers)—whether Kellogg’s employees are entitled to be paid for time spent walking between the locker room and the time clock.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Do you know? Challenging non-competition agreements

While my practice is heavily slanted towards the representation of management in employment disputes, from time to time I represent employees. Usually, it’s in an advisory role with non-compete agreements, when someone leaves one position for another.

Employees faced with a non-compete when leaving a job to work for a competitor or quasi-competitor have three choices:

1. Approach the old employer—either as part of severance negotiations or otherwise—and attempt to negotiate or buy your way out of the non-compete.
2. Work for the competitor and wait to get sued.
3. Preemptively sue your old employer seeking a declaration that the non-compete is invalid.

In all likelihood, if you ignore option number 1, or negotiations fail, you, and maybe your new employer, will get sued. The latter option, though, has some great upside for employees with specious non-competes. It lets you control the timing and venue of the lawsuit. It also lets you play offense instead of defense in trying to void or modify an overly broad agreement. For a good example of where this strategy worked well, see Jacono v. Invacare Corp. The downside, of course, is the expense. Something to consider if you are faced with a new job and a non-compete of dubious enforceability.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Not another post on wage and hour class actions?

I know what you’re thinking—not another post on wage and hour compliance. Workplace compliance specialist ELT published the results of a recent survey that caught my eye:

The money on the table for wage and hour class action settlements is huge, averaging $23.5M at the federal level and $24.4M at the state level. With the majority of employers already out of compliance with wage and hour laws, these are the kind of open and shut cases plaintiff’s law firms love to take on. Although these lawsuits are often positioned as valiant efforts toward worker protection, most of the money ends up in the hands of the attorneys while many class participants see as little as a few hundred dollars.

Average settlements over $20 million for “open and shut” cases should certainly get your attention. Yet, as long as businesses continue to ignore wage and hour compliance, I’ll continue to write posts about it.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

WIRTW #141 (the creepy-crawly edition)

It all started with a short press release from the National Pest Management Association, which announced the results of the 2010 Comprehensive Global Bed Bug Study. Now the press is all over this bed bug story (The Bed Bug Hub: One-Stop Shop for Bed Bug Information for a collection of links), and people everywhere are itching. Once limited to hotels, the little buggers are even showing up in downtown offices, which poses its own unique set of problems for employers (More offices see bedbug infestations). I’m phantom-scratching myself as I write this. Yick!

Anyhow, here’s the rest of what I read this week:

Social Media & Technology

• Twitter Law (cont.): Doctor Drives Off Cliff While Sending Twitter Message – from Bruce Carton at Law.com - Inside Opinions: Legal Blogs

• Fired: Wore Wrong Hat, Tweeted Wrong Tweet, Misused Facebook – from The Word on Employment Law with John Phillips

• Germany to Outlaw Facebook Stalking Employees – from Frank Roche’s KnowHR Blog

• The Tsunami of Smartphones in Computer Forensics – from Sharon Nelson’s Ride The Lightning

• Fired Employee Makes Unauthorized Changes to Company Website and How to Prevent this From Happening to Your Company – from Defending The Digital Workplace

• Social Media Screening (Potential Hires): Part 1 – from Rob Radcliff’s Smooth Transitions

Wage & Hour

• US Chamber of Commerce Apologizes, But Don’t Be Fooled – from Michael Whitney’s Work in Progress by

• A Wrong and Wrong-Headed Look at the Wage Gap – from David Chavern at the ChamberPost

• Just In Case You Didn’t the Feds Were Controlling Enough In HR – from Michael Haberman’s HR Observations

• Hospitals and Nursing Homes Are Focus of the Department of Labor over Wage Violations – from Wage & Hour Defense Blog

• Nursing Mothers Get a Timeout – from Matthew Gibson’s Wills & Wealth

• Insufficient notice of need for FMLA leave proves fatal for insubordinate employee – from Sindy Warren at the Warren & Hays Employment Law Blog

• Email Time is Probably Compensable Time – from Tom Crane San Antonio Employment Law Blog

• FMLA FAQ - What To Expect When The DOL Comes Knocking – from FMLA Insights

Discrimination

• Statistical Analysis of the Twombly Era – from Philip Miles’s Lawffice Space (guest post by Stephanie Thomas)

• The ADA at 20 - how changes impact your business – from Employment Law Bits

• Religious Discrimination Claims on High – from Employment Essentials

• Tasting Breast Milk And Other Alleged Misdeeds in the Library of Congress – from Adria Martinelli at the Delaware Employment Law Blog

• 3rd Circuit Affirms Workplace Head Scarf Ban – from Fitzpatrick on Employment Law

Litigation

• Lawsuit demands $38 quadrillion – from Walter Olson’s Overlawyered

• $38 Quadrillion Demand is World’s Second Largest – from Lowering the Bar

• Mediator needed to change ‘Ground Zero Mosque’ dialogue – from Lee Jay Berman’s Eye on Conflict

• Civility and Litigation – from Evan Schaeffer’s Trial Practice Tips Weblog

Employee Relations

• What Are Dress & Grooming Policies Doing to Your Talent Pool? – from Lance Haun at TLNT

• How to Tell When Your Boss Is Lying: Cool New Study – from Bob Sutton

• How Not to Obtain a Good Reference From a Former Employer – from employeescreenIQ Blog

Trade Secrets and Competition

• Top Ten Mistakes Made by Departing Employees and Top Ten Things to Do When an Employee Resigns to Join a Competitor – from Trade Secrets & Non-Compete Blog

• Eleventh Circuit Finds 43-City Non-Compete Enforceable Under Georgia Law – from Trading Secrets

• Hooters and the Heavy Consequences of Having Boobs – from Elie Mysta at Abovethelaw.com

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Wal-Mart seeks Supreme Court review of billion-dollar class action

Yesterday, the nation’s largest private employer asked the Supreme Court to review the class certification of the nation’s largest employment discrimination lawsuit. The case—Dukes v. Wal-Mart—is remarkable for several reasons:

1. It has been pending for nine years, and yet the parties are still dealing with the preliminary procedural issue of whether this case will proceed as a class action.
2. The plaintiffs seek a nationwide class, to include every woman employed by Wal-Mart for the past decade, in any of Wal-Mart’s 3,400 separately managed stores, across 41 regions and 400 districts, in any of 53 departments and 170 different job classifications. In other words, there is not much similar about these women other then the fact that they all worked for Wal-Mart.
3. The potential class is more than 1.5 million women.
4. The potential damages are billions.

Steven Greenhouse, at the New York Times, frames the dispute on the class certification issue:

Mr. Boutrous [one of Wal-Mart’s lawyers] said that even if the seven lead plaintiffs had suffered discrimination, that did not mean there was across-the-board bias at thousands of stores nationwide. He said the women’s claims should be tried individually, or if a manager discriminated against a store’s 200 women employees, then perhaps as a 200-member class action for those women.

Joseph Sellers, a lawyer for the plaintiffs, said the case should be a class action because Wal-Mart had and still has a common set of personnel policies at all of its stores. “We regard them as cookie-cutter operations that are similar to each other,” he said.

Wal-Mart—which strongly disputes liability and describes itself as “a leader in fostering the advancement and success of women in the workplace”—has asked the Supreme Court to review the propriety of a class action seeking money damages under the class action provision for injunctive or declaratory relief. The New York Times has available for download a PDF of Wal-Mart’s brief.

There is a lot at stake for businesses in the Supreme Court’s decision of whether to accept review of this class certification. A refusal by the Supreme Court to hear this case, or, worse yet, an affirming of the class by the Court, would greatly increase the risk for employers defending employment decisions (and resulting class actions) that involve disparate groups of employees, reporting to different managers, and working in different facilities. It would result in larger classes with a higher potential for recovery, neither of which is good for companies. It’s safe to say that the class action epidemic in this country would get a whole lot worse.

I am certain I will be one of many blogger commenting today on this case. For a snapshot of what some others have already said, take a look at the following:

• Dukes v. Wal-Mart certiorari petition – from Ted Frank at PointOfLaw Forum
• Dukes v. Wal-Mart Cert. Petition – from Workplace Prof Blog
• Wal-Mart appeals in job bias case – from SCOTUSblog

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

The worst feeling ever, and importance of candor

Imagine a sexual harassment EEOC charge which alleges that a corporate executive displayed pornographic images on his computer to a female subordinate. You interview the executive, in addition to everyone else at the company who could have seen the images; everyone denies they existed. In fact, the executive has a plausible explanation. The charging party is a disgruntled, terminated employee who may have accidentally received an email forward of a dirty joke, and is now exaggerating that one isolated incident to extort money through a bogus claim. You have no reason to disbelieve this executive and everyone else at the company. You respond accordingly in the company’s position statement to the EEOC, which finds no probable cause.

Flash forward six months. The lawyer for the ex-employee (now a plaintiff) is deposing the same executive. Her lawyer marks your position statement as Exhibit 1, and the executive re-affirms his story. Her lawyer then marks as Exhibit 2 the discovery responses in which the company denied that any pornographic photos existed, and the executive again re-affirms his story. When her lawyer marks a manila envelope as Exhibit 3, you start to feel a pit in your stomach. When the executive opens the envelope and reveals a half-dozen pornographic photos, the pit moves up into your throat. When you realize that the photos are of the same executive cavorting with two women—whom he identifies as “escorts”—you just about throw up. And the case settles for much more than it was worth.

I often relay this story to clients from whom I think I may not be getting the whole story. I remind them that whatever they tell me is privileged. I tell them that they might think they are protecting their company, but in this age of email, and Facebook, and computer forensics, it is likely, if not certain, that the truth will eventually come out. I explain that when it does, the liability risk, potential verdict amount, and the value of any settlement goes up exponentially.

The word “candor” is one of the the most important words to lawyers. It’s in our ethical rules—attorneys owe a duty of candor to the tribunal. Almost as important, however, is the candor between a lawyer and client. We owe you a responsibility to be completely honest with you about your case and the risks it presents. We cannot do that, however, without your reciprocal honesty about the facts. It’s our job to tell your most compelling story. We cannot do that, though, if we don’t know what that story truly is.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Do you know? The Department of Labor updates its strategic plan for the next five years

Earlier this year, the Department of Labor launched its We Can Help website, offering employees a one-stop-shop for wage and hour information, and information on how to file complaints against their employers. The DOL recently put a little more meat on its regulatory plans, announcing its updated five-year strategic plan, called “Good Jobs for Everyone” [pdf]. The plan has five strategic goals:

1. Prepare workers for good jobs and ensure fair compensation.
2. Ensure workplaces are safe and healthy.
3. Assure fair and high quality work‐life environments.
4. Secure health benefits and, for those not working, provide income security.
5. Produce timely and accurate data on the economic conditions of workers and their families.

One key provision of this plan caught my eye, and should concern employers.

Outcome Goal 1.5—Secure wages and overtime. This goal has four key components:

• Protecting vulnerable workers: The DOL believes that employers who use contract or temporary workers, in addition to young workers, are at a greater risk for wage and hour violations. It will target these types of workers for greater protection and enforcement efforts.

• Targeting high-risk fissured industries: The DOL will specifically target the following “high‐risk” industries for greater enforcement: agriculture, janitorial services, construction, and hotels/motels. The DOL will continue to conduct investigation‐based compliance evaluations to determine the percent of prior violators who come into and stay in compliance with the FLSA.

• Securing sustained compliance: The DOL will enhance its complaint investigation program, in addition to expanding pubic awareness and outreach. Most notably, the DOL will target the most persistent violators by pursuing corporate‐wide compliance strategies and by imposing appropriate penalties and sanctions.

• Identifying employee misclassifications: The DOL is concerned that employers are misclassifying employees and independent contractors to deny access to benefits and legal protections, such as family and medical leave, overtime, minimum wage, and unemployment insurance. The FLSA recordkeeping regulations under development will require that employers notify each worker of their rights under the FLSA, and provide employees with information regarding their hours worked and wage computations.

In other words, the DOL is making good on its promise to increase monitoring and enforcement of wage and hour laws, specifically as they pertain to low-wage/high-risk employees, and employee/contractor misclassifications. For more on what this means for you and your business, I recommend the following:

• Compliance and training key to victory in overtime lawsuit.
• Study of American working conditions presents opportunity for employers to tune up legal compliance.
• Department of Labor to step up enforcement; employers should step up self-audits.
• Make a list and check it twice – FLSA exemptions.
• Department of Labor investigations highlight important wage and hour compliance issues.
• Use a wage and hour audit to proactively head off claims.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Helping those who help themselves: Be wary of common law retaliation claims

Just because a specific statute does not provide a remedy to a terminated employee does not mean that the employee cannot pursue a claim. In fact, Ohio recognizes a wrongful discharge claim for just this situation. When an employee’s termination offends a clearly defined public policy, courts will permit that employee to pursue a claim for wrongful discharge.

Dohme v. Eurand America provides a good example. In that case, Eurand fired Dohme after he provided an on-site insurance inspector with computer printouts showing overdue fire alarm inspections. Two days late, Eurand fired him. Among other claims, Dohme asserted that his termination violated a public policy in favor of workplace safety. The appellate court agreed:

An employee who reports fire safety concerns to the employer’s insurance inspector, regardless of the employee’s intent in doing so, is protected from being fired solely for the sharing of the safety information. Eurand argues that Dohme’s claim must fail because Dohme did not report the safety issue to a governmental employee. We do not agree. It is the retaliatory action of the employer that triggers an action for violation of the public policy favoring workplace safety.

Regardless of whether a specific statute exists to protect an employee, courts will often find a way to protect someone when it is perceived that an employer retaliated. If it looks like you are firing someone “because of” some complaint the employee made, pause and give some serious thought to the decision before pulling the trigger.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

WIRTW #140 (the social media training edition)

I spend part of this week conducting social media training for a client. I spoke to groups of managers and supervisors. What surprised me most about their collective response to the policy wasn’t the ban on personal social media at work, or their potential personal liability for harassment under Ohio law, but the fact that their employer expected them to be responsible for what their friends and followers posted on their social media sites that could potentially reflect poorly on the company. As someone who is well engaged with social media, I also found it interesting that while the group was nearly unanimous in their use of Facebook and LinkedIn, no one (but me) tweeted. What I took away from these sessions was that if you are going to be rolling out a social media policy—and you should be—you should incorporate training sessions about the policy. What seems straightforward to you might be troubling to your employees. It also makes sense to cover the social media basics, because you will have employees that can’t tell a tweet from Tweety Bird.

Here’s what I read this week:

Wage & Hour

• Yes, You Can Get Fired After Taking Maternity Leave: The confusing state of family-leave policies – from Sharon Lerner at Slate

• Do You Have to Pay People Who Work the Computer Help Desk Overtime Pay? – from Overtime Advisor

• Where’s MY Pay Czar? Why We Need a Total Rewards Audit of Congress – from Ann Bares at Compensation Force

• Independent Contractors and the ABC Test: The Future is NOW – from Michael Haberman’s HR Observations

• US Chamber: Equal Pay “a Fetish for Money,” Women Should “Choose the Right Partner at Home” – from Work in Progress

• Union Representation Activities: Are They “Working Time” Under The FLSA? – from Wage & Hour—Development & Highlights

• Unpaid Internships – from Matthew Gibson’s Wills & Wealth

• The Slacker: Striving For Mediocre – from I Hate People…But It’s Nothing Personal

• Police Sergeant Sues for Overtime Based on Time Spent Reading and Responding to E-mails – from Texas Employment Law Update

Discrimination

• Tick, Tock. Watch the (Retaliation) Clock – from Mindy Chapman’s Case In Point

• It Comes with the Job—Or not – from Workplace Prof Blog

• 2nd Circuit issues interesting opinion on sexually hostile environment Mike Maslanka’s – from Work Matters

• “Similarly situated” can be a high bar – from Sindy Warren at the Warren & Hays Employment Law Blog

• Service dog’s untimely calls of nature – from Walter Olson’s Overlawyered

Human Resources & Employee Relations

• I’m Mad As Hell? – from The Word on Employment Law with John Phillips

• I Don’t Think That Constitution Means What You Think It Does – from Popehat

• A lesson in how NOT to fire an insubordinate employee – from Stephen Meyer’s HR Cafe

• Hospital Workers Post Pics of Dying Man on Facebook: Highlights Need to Educate Employees on Proper Use of Social Media – from Megan Erickson’s Social Networking Law Blog

• Workplace Violence Prevention: Having Police or Security Available at a Termination Meeting – from Dan Schwartz’s Connecticut Employment Law Blog

• Proof That Background Checks Actually Work: If You Use Them – from Nick Fishman at the employeescreenIQ Blog

• The Importance of Office Space – from Adria Martinelli at the Delaware Employment Law Blog

• Telling lies hard work in workplace – from Andrea Kay at the Pittsburgh Tribune

• Monitoring the Monitors – from Sarah Needleman at the Wall Street Journal

• Workplace smoking bans spark obesity? – from USA Today

Trade Secrets

• Lawsuit of the Day: Major Lindsey Files RICO Action Against Former Employee – from David Lat at Abovethelaw.com

• Training and Social Networking Policies: Essential Elements in Protecting Your Company Secrets – from TLNT

• Departing Wells Fargo Vice-President Accused of Looting Data and Clients – from Trade Secrets Blog

• Eighth Circuit Affirms Award Of $1,369,921 As Liquidated Damages In No-Compete Case – from Trade Secrets and Noncompete Blog

Litigation

• SANCTIONS—DENIED!!! – from Katherine Gallo’s Resolving Discovery Disputes

• 80% of Employers’ Summary Judgment Motions Granted – from Philip Miles’s Lawffice Space

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Evidence of moonlighting and misuse of email system prove fatal to retaliation claim

Rudolph Escher claimed that he was terminated in retaliation for complaints he made about his employer’s designation and accounting of his military leave time, in violation of the Uniformed Services Employment and Reemployment Rights Act. As it turned out, his employer fired him for egregious misuse of its computer system through the use of that system to perform substantial work for the Naval Reserves:

Samuel Long, a human resources specialist, reviewed the e-mails and documents Escher had stored on the server. Long initially discovered more than 3,200 e-mails, from 1999-2005, in more than 240 individually named folders and subfolders. He also discovered files outside the e-mail system containing: 18 PowerPoint Presentations; 75 Word documents; 38 Excel spreadsheets; 12 PDF documents; and 140 miscellaneous documents. Long determined that Escher was working on these e-mails during work hours, and using his BWXT e-mail address as an automatic signature, which invited recipients to respond to it. Long could tell from his review that Escher was spending “an inordinate amount of time by reviewing the e-mails, by replying to the e-mails, by writing paragraph after paragraph in response to different e-mails.”

If you are going to moonlight, best not to do business through your main employer’s computer system. Needless to say, the 6th Circuit upheld the trial court’s dismissal of Escher’s USERRA lawsuit. The case is Escher v. BWXT Y-12, LLC (6th Cir. 8/18/10) [pdf].

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Do you know? Handbook disclaimers

Yesterday, I noted that employees often feign ignorance of employee handbooks. Here’s a textbook example.

In Steadman v. Sterilite Corp. (Ohio Ct. App. 7/19/10) [pdf], the employer’s handbook contained the following language:

Sterilite is an “at will” employer in that your employment may be terminated with or without cause and with or without notice at any time at the option of either you or Sterilite, except as otherwise provided by law…. No statement or promise by a supervisor, manager or department head, either verbal or written, may be interpreted as a change in policy nor will it constitute an employment agreement with any employee.

Additionally, the employee signed the following acknowledgement form upon receipt of the handbook:

I understand that this handbook is not a contract of employment, express or implied, between Sterilite and me and that I should not view it as such, or a
guarantee of employment for any specific duration. 

I further understand that no manager or representative of Sterilite, other than the president, has the authority to enter into any agreement guaranteeing employment for any specific period of time. I also understand that any such agreement, if made, shall not be valid or enforceable unless it is in a formal written agreement signed by both the president and me.

Based on this language, the Court affirmed the dismissal of the employee’s claims, which were premised on the handbook constituting a contact of employment:

As a general rule in Ohio, employee handbooks do not constitute an employment contract. The handbook is simply a unilateral statement of rules and policies creating no obligations or rights…. [A]n employee handbook that expressly disclaimed any employment contract could not be characterized as an employment contract.

Reviews of disclaimers should be part of any handbook audit. They will likely make the difference between whether your handbook is a series of aphoristic aspirations and guidelines, or a policy manual that binds your conduct as a contract between your business and your employees.

On Dustin Johnson and knowing the rules: A lesson for your employees

Rule 13.4 of the USGA’s Rules of Golf provides a two stroke penalty for grounding one’s club in a hazard. Certainly Dustin Johnson knew this rule when he approached his second shot on the final hole of Sunday’s PGA Championship leading by one. What he did not know was that trampled area in which his ball rested was a bunker. The two stroke penalty he incurred when he grounded his club cost him the tournament, his first major championship, a five-year tour exemption, and the more than $1M difference between first and fifth places.

His mistake was that he did not read the tournament rules, provided to him before the tournament started and conspicuously posted in the locker room: “All areas of the course that were designed and built as sand bunkers will be played as bunkers (hazards), whether or not they have been raked. This will mean that many bunkers positioned outside of the ropes, as well some areas of bunkers inside the ropes, close to the rope line, will likely include numerous footprints, heel prints and tire tracks during the play of the Championship. Such irregularities of surface are a part of the game and no free relief will be available from these conditions.”

He did not run from his mistake. Instead, he took responsibility for not knowing the rules. From ESPN.com:

I just thought I was on a piece of dirt that the crowd had trampled down…. I never thought I was in a sand trap. It never once crossed my mind that I was in a bunker…. Obviously I know the rules of golf and I can’t ground my club in a bunker, but that was just one situation I guess. Maybe I should have looked to the rule sheet a little harder.

I cannot tell you how many depositions I’ve taken in which an employee tried to justify his or her misconduct by claiming not to have read the handbook. The common refrain: “No one reads those things.” Never mind their signatures on receipts stating that they read the handbook and had the opportunity to ask questions. Consider relaying Dustin Johnson’s story to your new employees during orientation. Maybe it will incent them to do what they should be doing in the first place—reading the handbook and asking questions.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

A real life example of the difference between the old ADA and the amended ADA

Two years after Mantych Metalworking hired Dan Wallace, he suffered a heart attack. He also had a history of back problems. Five years later, Mantych fired him, and he claimed disability discrimination. In Wallace v. Mantych Metalworking (Ohio Ct. App. 8/13/2010) [pdf] the court of appeals concluded that Wallace’s medical problems did not rise to the level of a disability worth of protection from discrimination:

Wallace presented sufficient evidence of back trouble—surgery and rehabilitation—to establish that he had a physiological condition affecting his musculoskelatal system. Also, the evidence shows that Wallace had a heart attack and heart-bypass surgery, evidence that is adequate to establish that he had heart disease. But whether these physical impairments substantially limited one of his major life activities is less clear.

The evidence of the major life activities that Wallace’s impairments affected is composed only of conclusory statements. Wallace’s affidavit states that “[a]s a result of my heart attack … I suffered from shortness of breath,” … and that he had an “impaired ability to work long hours because of shortness of breath, dizziness (standing), [and] muscle cramps (walking).” … The evidence therefore, while establishing that Wallace had physical impairments, does not establish that the physical impairments substantially limited one of Wallace’s major life activities.

This result seems reasonable. Wallace was not “disabled” because his medical conditions, while real, did not have much of an effect on his day-to-day activities. Yet, under the ADA Amendments Act, this issue would likely have a different result. Under the ADAAA, major life activities do not only include day-to-day activities such as caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working, but they also include the operation of a major bodily functions, including the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions. Under the current iteration of the ADA, a heart attack, which affects the circulatory system and caused Wallace shortness of breath, would likely qualify as a disability.

Under the ADAAA, almost every medical condition will qualify as a disability. The focus in disability discrimination cases has shifted from whether an employee is legally “disabled” to whether they are “qualified” (whether they can perform the essential functions of the job with or without reasonable accommodation), and whether the employer reasonably accommodated the disability.

Yet, as the concurring opinion in Wallace aptly pointed out, Wallace still loses this case on the issue of whether he was a “qualified individual with a disability”:

Even if Wallace’s adverse health conditions were to constitute a disability, Wallace would also have to prove that he could safely and substantially perform the essential functions of the job in question in order to prove his disability claim against Mantych…. The hours of work an employer requires of an employee, unless otherwise limited by law or by contract, are functions of the job which are as essential to its performance as is the employee’s ability to perform the particular tasks the job involves. It is undisputed that Wallace is unable, due to his adverse health conditions, to work the number of hours per week that Mantych requires. There is no evidence that Mantych had agreed to allow Wallace to work the reduced number of hours per week to which his health condition now limits him. Therefore, Wallace cannot prove that he can substantially perform the essential functions of the job from which he was discharged, preventing a judgment against Mantych on Wallace’s claim for disability discrimination.

The result of this case may be the same under the ADA and the ADAAA, but the route to that outcome is very different. The fact that an employee such as Dan Wallace might qualify as disabled means that his employer must engage in the interactive process, determine an appropriate reasonable accommodation, and make that accommodation work. In other words, employers must be more attuned to employees’ medical conditions, because more employees will qualify for protection under the ADA. Because the ADA is partly a proactive statute, this increased coverage imposes increased responsibilities that employers ignore at their own risk.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

WIRTW #139 (bald is beautiful edition)

At 37, I’m pretty comfortable in my baldness. I’m not sure if it was Michael Jordan, or finding me wife, who loves me for me, bald head and all. One great thing about being bald is that I never have to pay for a haircut—it’s just me and my Gillette a couple times a week. And now, at least according to Adria Martinelli at the Delaware Employment Law Blog, my baldness may protect me under the Genetic Information Nondiscrimination Act. Finally, a discrimination law I can support 100%.

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

Mark Hurd

• Mark Hurd, HP, Man Gene and Faux Ethics – from The Word on Employment Law with John Phillips

• Will Baggage Stop Former HP CEO, Mark Hurd from Future Employment? – from Nick Fishman at the employeescreenIQ Blog

• The Curious Case of Mark Hurd: Would you Fire a CEO Over Expenses? – from TLNT

• On HP's Mark Hurd: “Assholes Sometimes Get Their Due” – from Bob Sutton

• HP CEO resigned amidst sexual harassment allegations – from Boy Genius Report

• HP and the HR Pro: Watch the Agendas, People – from The HR Capitalist

Discrimination

• Research: Employment Discrimination Cases Often Result in Only Small Victories for Some Employees – from Dan Schwartz’s Connecticut Employment Law Blog

• Cautionary Comments as the ADA Nears Adulthood – from Michael Fox’s Jottings By An Employer's Lawyer

• “Preferences” and the ADAAA – from Workplace Prof Blog

• In Ugly Economy, Age Bias Claims Are a Tough Sell – from Law.com

• Seventh Circuit Holds Nursing Home Violated Title VII In Accommodating Resident’s “White-Only” Request – from Hunton Employment & Labor Law Perspectives™

• Do You Need to Know How Much Your Employees Weigh? – from Frank Roche’s KnowHR Blog

• Was overweight worker a victim of disability discrimination? – from Stephen Meyer’s HR Cafe

• Plain Dealer music critic lost age discrimination lawsuit – from Sindy Warren at the Warren & Hays Employment Law Blog

Litigation

• Lawsuit of the Day: Has Donald Duck Been Unfairly Accused? – from Abovethelaw.com

• When an Apology is a Discovery Response – from Katherine Gallo’s Resolving Discovery Disputes

• Can an apology help to prevent and settle employment litigation? – from David Yamada’s Minding the Workplace

• I Want to Sue the Pants off the Blankety Blank!! – from Teri Rasmussen’s Ohio Practical Business Law

Wage & Hour

• I’m Exempt: Can My Employer Deduct PTO for Doctor’s Appointments? – from Evil HR Lady

• WARNING: Outside Sales Representatives May Not Be Exempt From Overtime Pay – from Wyatt Employment Law Report

• Facts Make the Difference in Misclassification Cases – from Texas Employment Law Update

• Portrait of an Exempt Computer Employee – from Overtime Advisor

• Impact of Healthcare Reform on Business – from Rush Nigut’s Rush on Business

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

More on pregnancy as a disability

The more I think about yesterday’s post discussing Spees v. James Marine, Inc.—which held that pregnancy-related impairments that are not part of a “normal” pregnancy can qualify an an ADA impairment—the more troubled I am about the court’s decision.

The claim in Spees was a “regarded as disabled” claim. Heather Spees claimed her employer transferred her away from her welding duties because it perceived her at risk because of a history of miscarriages. Yet, the ADA states that one cannot premise a “regarded as” claim on “impairments that are transitory and minor”—that is, impairments “with an actual or expected duration of 6 months or less.” Pregnancy, by its very nature, is a transitory condition. Most pregnancy-related impairments—ectopic pregnancy, preeclampsia, miscarriage, gestational diabetes, placenta previa—only occur during a portion of the pregnancy. Moreover, in most cases, childbirth cures these impairments. In other words, by their very nature, pregnancy-related impairments are transitory, and should not be covered by ADA.

There, now I feel much better.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Pregnant = disabled, at least according to the 6th Circuit

The Americans with Disabilities Act expressly excludes pregnancy as a disability. Or at least that’s what it says, and what I’ve always believed to be true. Yesterday, the 6th Circuit decided Spees v. James Marine, Inc. [pdf], which will turn the notion of pregnancy as an ADA-protected disability on its head.

Heather Spees was a welder-trainee with JMI. Shortly after her hire, she learned she was pregnant. Her prior pregnancy ended in a miscarriage. Spees talked to her brother who was also a JMI foreman, her own foreman, and her obstetrician who originally cleared her for work without restrictions. Spees’s foreman, however, told her to revisit her doctor and get a note for light duty. He thereafter assigned her to the tool room away from her welding duties, telling her, “For right now, we don’t know what to do with you.” Apparently, Spees’s brother and foreman concluded that the risks associated with welding were too dangerous for the pregnant Spees. When another doctor later ordered Spees to full bed-rest, JMI terminated her employment for excessive absences. According to Spees, her brother told her that she “was being fired for being pregnant.”

The 6th Circuit resurrected Spees’s “regarded as” disabled claim. Although it recognized that pregancy, in and of itself, does not qualify as a disability, the court concluded that pregnancy-related impairments that are not part of a “normal” pregnancy—such as miscarriage susceptibility—can qualify an an “impairment” under the ADA:

Our first step in evaluating Spees’s ADA claim is to determine whether her prior miscarriage, or a potentially higher risk of having a future miscarriage, could constitute an impairment. Whereas no court has held that pregnancy by itself is an impairment under the ADA, many district courts have held that pregnancy-related conditions can qualify as such…. 

Pregnancy-related conditions have typically been found to be impairments where they are not part of a “normal” pregnancy…. Susceptibility to a miscarriage, moreover, has been deemed by some courts to be such a condition…. 

Although other courts have held that pregnancy complications related to miscarriages are not disabilities, the analysis in those cases did not hinge on the question of whether there was an impairment, but rather on whether the condition was sufficiently severe to substantially limit a major life activity…. There thus appears to be a general consensus that an increased risk of having a miscarriage at a minimum constitutes an impairment falling outside the range of a normal pregnancy.

The 6th Circuit appears to be breaking new ground again in the expansion of employees’ rights under federal discrimination laws. This case ups the ante for employers dealing with pregnant employees. Now, more than ever, employers should adopt, as best as possible, a “see no evil, hear no evil” approach in dealing with those who are pregnant to avoid any knowledge of pregnancy-related complications or conditions.

Do you know? What triggers the duty of reasonable accommodation?

Suppose an employee suffers from sleep apnea, which keeps the employee awake for periods of time at night. In fact, the employee’s nighttime sleep patterns are interrupted to the point that the employee is excessively tired during the work day.

Two weeks after being hired as a manager, the employee falls asleep during a meeting. When questioned, he mentions that he has sleep apnea, but blames the nap on the warmness of his room coupled with his jacket and tie. The employee would repeat his workplace naps numerous times over the next year, and when questioned he would merely state that he had a rough night. He never asked for an accommodation of his sleep apnea, nor indicated that sleep apnea was
interfering with his job. This pattern continued for 18 months.

Finally, the employee’s supervisor catches him sleeping at his desk in the middle of the work day. When it took her more than five minutes to roust him, she told him that he could resign his employment or be terminated. The employee claims that he said that he had sleep apnea which causes him to involuntarily fall asleep, although he never requested any type of accommodation. In his resignation letter, he stated that he was disappointed that his employer was unable to accommodate his medical condition.

These are the facts of Medlin v. Springfield Metro. Hous. Auth. (Ohio App. 8/6/10) [pdf], a case in which Medlin sued for constructive discharge for a failure to reasonably accommodate his sleep apnea. The court of appeals upheld the dismissal of his claim because he failed to request an accommodation for his disability:

Federal courts have recognized that the duty of an employer to make a reasonable accommodation also mandates that the employer interact with an employee in a good faith effort to seek a reasonable accommodation…. To show that an employer failed to participate in the interactive process, a disabled employee must demonstrate: 1) the employer knew about the employee’s disability; 2) the employee requested accommodations or assistance for his or her disability; 3) the employer did not make a good faith effort to assist the employee in seeking accommodations; and 4) the employee could have been reasonably accommodated but for the employer’s lack of good faith.

As noted, Medlin never asked for reasonable accommodations to accommodate sleeping on the job before being given the option to resign or be terminated. At that time, Medlin did not even suggest what a reasonable accommodation might be; he simply stated in his resignation letter that he was disappointed that SMHA was unable to accommodate his medical condition. SMHA was entitled, however, to terminate Medlin’s employment the day before, when he was found asleep in violation of company rules. There is no showing that SMHA failed to act in good faith by giving Medlin the option the following day to resign or be fired for sleeping on the job, particularly when Medlin had never asked for an accommodation. This is not a situation in which an employee was ignorant of his condition. Medlin was aware for many years that he had sleep apnea, and had ample opportunity to bring the issue of accommodation to his employer’s attention. Medlin was twice questioned about sleeping on the job, and was specifically informed that he had been observed sleeping by other employees and by board commissioners. Nonetheless, Medlin failed to ask for a reasonable accommodation for his condition.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

California court declares open season on stray workplace remarks

Traditionally, an employee cannot use stray remarks in the workplace to prove discrimination. Under the stray remarks doctrine, courts deem irrelevant any remarks made by non-decisionmaking coworkers or remarks made by decisionmaking supervisors outside of the decisional process. For more than 20 years employers have successfully avoided liability for crude and even discriminatory remarks made employees not involved in a decision to fire or demote, and for comments that are remote in time from the adverse employment action.

Reid v. Google [pdf]—decided last week by the California Supreme Court—has tossed this long-standing doctrine on its head. The Reid court flatly rejected the stray remarks doctrine in an age discrimination case. Briefly, Brian Reid, a former Google senior executive, claimed that the company discriminated against him because of his age when it terminated his employment. In support of this claim, he pointed to three key pieces of evidence:

1. Statements by one supervisor that Reid was slow, fuzzy, sluggish, lethargic, did not display a sense of urgency, lacked energy, and that his ideas were obsolete and too old to matter.
2. Statements by another supervisor near the time of the termination that Reid was not a good “cultural fit.”
3. Coworkers’ comments calling Reid an old man and an old fuddy-duddy, and a joke that his office placard should be an LP instead of a CD.

The court rejected a strict application of the stray remarks doctrine, concluding that it “would result in a court’s categorical exclusion of evidence even if the evidence was relevant…. An age-based remark not made directly in the context of an employment decision or uttered by a non-decision-maker may be relevant, circumstantial evidence of discrimination.”

One case does not make a trend. Plus, if there’s one thing I learned in law school it’s that California is legal la-la land, where white is often black and black is often white. For the sake of employers, I hope this is the case with the stray remarks doctrine. Certainly, plaintiffs all over the country will use the Reid decision to argue against summary judgment in cases in which there are stray remarks. It will bear watching to see how federal courts and states other than California react to Reid. Reid can either be an anomaly in a sea of stray remarks, or a sea change in how courts rule on summary judgment in employment cases. The latter will have a catastrophic effect on employers’ ability to defend themselves against discrimination claims. It’s hard to find a workplace in which stray remarks don’t exist. If Reid becomes doctrine, it will be hard to find a discrimination case in which an employer will be able to withstand summary judgment.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

WIRTW #138

Boy has it been quiet this week. Sure, the Senate confirmed Elena Kagan to a seat on the Supreme Court, but otherwise it seems like everyone (but me) are away on their summer vacations. Whether you are away or not, consider this as my tip of the week: your office desk is not a great place to stash your collection of kidding porn (c/o Above the Law)

Here's what I read during what felt like an unusually sedate week:

Discrimination

• Muslim Head Gear Ban Allowed by 3rd Circuit – from Philip Miles’s Lawffice Space

• More Men Filing Sex Discrimination Suits – from Law.com

• Fired for Cubicle Exorcism: Is That Religious Bias? – from Mindy Chapman’s Case in Point

• Customer Preference Not Justification for Discrimination – from GT LE Blog

• A Labor Market Punishment to Mothers – from Howard Bashman’s How Appealing

• ADA’s 20th Anniversary: A Contrary View – from The Word on Employment Law with John Phillips

• Getting to Work – from Charles Sullivan at the Workplace Prof Blog

Wage and Hour

• Court Rules Employee Does Not Necessarily Need to Comply with Employer’s Heightened FMLA Notice Procedure – from Texas Employment Law Update

• Disciplining FMLA Leave-Takers – from The HR Cafe

• FMLA Inclusion Act Introduced in Congress ... Again – from FMLA Insights

• Overtime Compliance Must Be Taken Seriously—Damages are Severe and Potentially Crippling for a Business – from Overtime Advisor

Technology

• Employees: If You’re Too Stupid to Set Your Facebook Privacy, You Deserve It If HR Looks – from Know HR

• Wife Says She Learned From Facebook That Her Hubby Had Another Wedding – from the ABA Journal

• I Shouldn’t Have to Tell Employees This, But I Do – from Popehat

• No Need for Panic: 10 Tips to Prevent Employee Issues with Social Media – from TLNT, the Business of HR

• Tips for creative success from Pixar – from Presentation Zen

• Blog Comments as Trial Evidence – from the Delaware Employment Law Blog

• Adobe’s Advice on Purging PDF Documents of Metadata – from Ride the Lightning

• I Tweet, Therefore I am – from Peggy Orenstein in the New York Times Magazine

• Juvenile corrections officer fired over Facebook slurs – from Chris Tye at wkyc.com

HR

• Bereavement Leave for the 21st Century – from Mike Maslanka’s Work Matters

• Leading a Good Fight: Stories and Rules – from Bob Sutton’s Work Matters

Trade Secrets and Non-Compete Litigation

• Trade Secrets of Ultimate Fighting—Stolen? – from Trade Secrets Blog

• From Trade Secrets to Newsletters, What Do Confidentiality Agreements Really Cover? – from Trade Secret/Noncompete

• Emergency! What Can an Employer Do When An Employee is Violating A Non-Compete Agreement – from Dan Schwartz's Connecticut Employment Law Blog

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

The best way to settle an employment case

Yesterday at Jottings By An Employer’s Lawyer, Michael Fox praised the Employment Law Group for announcing a jury trial loss in a blog post. You may be asking yourself why would a defense lawyer announce a loss. It’s what I call smart marketing. There are two things employment plaintiff’s count on to extort a high settlement: 1) a denied summary judgment motion with a firm trial date, and 2) cold feet by a business or its lawyer to take the case to a jury. If you want to obtain a fair settlement in your next employment case, hire an attorney with a proven track record of trying cases. Before you hire the lawyer to defend your next claim, ask him or her how many cases he or she has tried to a jury, and how long ago the last jury trial was.

There are very few things in the law that take more guts than taking an employment case to trial as an employer. No one wants a jury to resolve a dispute. Knowing that your lawyer has the confidence to try your case will give you the confidence to draw a reasonable settlement line in the sand. That line might be at or near zero. You should never pay more than you think a case is worth merely to avoid a trial. Knowing your lawyer can and will try your case for you will enable you to hold that line.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.