Friday, September 19, 2014

BREAKING: Federal judge dismisses EEOC severance agreement lawsuit against CVS


The Chicago Tribune is reporting that U.S. District Judge John Darrah has granted CVS’s motion to dismiss a lawsuit filed by EEOC, which challenged the company’s severance agreements as overly broad and retaliatory. 

Recall that the lawsuit challenged several garden-variety terms in standard employee severance agreements, including non-disparagement, confidentiality, and a covenant not to sue (which expressly disclaimed EEOC charges).

When the EEOC filed this lawsuit earlier this year, I exclaimed that a ruling for the agency could be ruinous for employers. Kudos to this judge for recognizing the folly of the EEOC’s position.

The Tribune reports that the court granted CVS’s motion at a hearing, and said that a written opinion would follow. I’ll have full coverage of this significant rebuking of the EEOC’s extreme position as soon as the opinion publishes.

In the meantime, this is not the end of this issue. It is possible, it not probable, that the EEOC will appeal this dismissal to the 7th Circuit. Also, the EEOC has filed a similar case in at least one other court. There is always a chance that another judge will see this issue the EEOC’s way, creating a split, and a headache for employers.

[Hat tip: Ameet Sachdev]

WIRTW #337 (the “page limit” edition)


When you were in school, did you ever fudge the margins, or the font, or the line-spacing to fit your term paper within the confines of a teacher’s page limit. Let me give you lawyers reading today’s post a little practice pointer. Don’t do that when you file a brief with a court. Slate.com quotes the opinion of District Court Judge Carl Barbier, who took BP to task for playing with page limits.

BP’s counsel filed a brief that, at first blush, appeared just within the 35-page limit. A closer study reveals that BP’s counsel abused the page limit by reducing the line spacing to slightly less than double-spaced. As a result, BP exceeded the (already enlarged) page limit by roughly 6 pages. The Court should not have to waste its time policing such simple rules—particularly in a case as massive and complex as this. Counsel are expected to follow the Court’s orders both in letter and in spirit. The Court should not have to resort to imposing character limits, etc., to ensure compliance. Counsel’s tactic would not be appropriate for a college term paper. It certainly is not appropriate here. Any future briefs using similar tactics will be struck.

Ouch.

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

Discrimination

HR & Employee Relations

Wage & Hour

Labor Relations

Thursday, September 18, 2014

The best defense to a discrimination claim is…


Wilson v. Chipotle Mexican Grille (6th Cir. 9/17/15) [pdf] is an unusual or distinct case, yet it teaches employers an important lesson about how to win a discrimination case.

Catherine Wilson, an African-American female, worked as a part-time crew member at a Cincinnati Chipotle. Her reviews listed her as a “low performer,” and her supervisors counseled her about her “attitude.” Wilson requested, and was denied, a 10-day leave of absence to go to Disney World. Because of her insistence for the time off, however, her manager took her off the schedule for those 10 days and considered her to have quit her job.

When she was fired after attempting to work after she “quit,” she sued the restaurant for race and sex discrimination.

The court had little trouble dispensing with the employer’s claim that Wilson had quit her job. Whether or not she requested time off, she returned to work the next day with the intent to work. Those actions do not demonstrate a voluntary resignation.

Regardless, the employer still won the case because Wilson could not show that she was replaced by someone outside the protected classes.

Wilson offered no evidence that Chipotle replaced her with white or male employees. To the contrary, Wilson’s part-time slot was picked up by three African-American females and one African-American male. The Clifton branch work force was 75% African American during the relevant period, and Wilson offers no evidence that this changed at the time.

So, what’s the best defense to a discrimination claim? Hire others in the same protected group. If your workplace is three-quarters black, it become very hard for a black employee to claim disparate treatment. If you replace that black, female employee with three other black females, and a black male, it’s case over.

An African-American, female employee cannot show discrimination when you replace her with another African-American female. All the more reason to maintain a diverse workforce. And, an important point to consider if you need to replace a fired employee that you think might turn around and sue.

Wednesday, September 17, 2014

Psych. Claims: Not the Dead Bang Loser You May Think


One of the benefits of my new firm is that it exposes me to new practice areas. Case-in-point, workers’ comp, which I could not previously offer. Today, I am introducing you to my partner, Steve Dlott, who heads the Workers’ Compensation Department at Meyers Roman, and is a Certified Specialist in Workers’ Compensation Law.

Steve was kind enough to author a guest post, discussing a tricky issue under Ohio’s workers’ comp laws, psych claims.



Having worked with several different TPA’s regarding psych. claims, there seems to be a general doomsday mindset about the inevitability of such claims. As I have been accustomed to hearing, “What’s the point in fighting them? They always get allowed.” Certainly, based on the IC’s history when it came to such claims, this reaction was entirely understandable. However, based on my own recent experience of taking a string of psych. claims to hearing, these claims are winnable. In fact, I have won the last 5 psych. claims that went to hearing. And, to reinforce this point, several of those claims were state funded claims where the BWC psychologist supported the C-86. That is not to say, of course, that every psych. claim is winnable, or that this streak will indefinitely continue. Certainly, it will not. The point is simply to dispel the commonly held notion, upon getting a C-86 for depression or PTSD, that success is hopeless-or dismal at best.

Two factors account for this new outlook-one, clarification of existing law, the other, good old fashioned detective work. First, in Armstrong v. Jurgensen, the Ohio Supreme Court reiterated the legal requirement for establishing a psych. condition. As the court noted, the psych. condition must result from the physical injuries in the claim and not simply relate to the injured worker’s involvement in the accident. In Armstrong, the injured worker (Armstrong) was slightly injured in an accident in which the other driver was killed. After Armstrong’s claim was allowed for soft tissue injuries, he sought to additionally allow his claim for PTSD. The IC allowed the PTSD and the employer appealed the disallowance to court. The employer ended up taking the case to trial. The judge overturned the IC’s decision, finding the claim not compensable because it did not arise from the allowed conditions. The case was ultimately appealed to the Ohio Supreme Court, which affirmed the trial court’s decision. While employers have always argued this was the law, as apparent from the IC’s decision, hearing officers did not always buy this argument. Now, with the Supreme Court’s decision, they must. 

Without question, Armstrong has changed the landscape in terms of giving employers a significant advantage in getting psych. claims denied, provided it can be shown-which happened in 3 of the 5 cases I won-that the psych. condition did not arise from the physical injuries.

The second step in successfully fighting psych. claims is simply good old fashioned detective work. In one claim, I discovered claimant had a previous history of psychological treatment. Claimant had denied this to both her psychologist and to the BWC psychologist. While this certainly is not unusual, through discovering a record buried in other documents in the injured worker’s file which led to my discovering claimant’s previous history of depression, I was able to discredit claimant at the hearing. Not surprisingly, hearing officers do not like liars, and, not just in this case, but in all of the cases I’ve won to date, the claimant’s credibility has been a major focus of the hearing. Because credibility is such a key component in psych. claims-more so than in any other claim because the condition is based almost entirely on the claimant’s subjective symptoms (“I’m depressed”, “I can’t sleep”, “I can’t concentrate”, etc.), a thorough investigative background is absolutely critical (and often overlooked) in making the difference between success and failure at the IC.

So, my advice to tpas and others is: Bring it on. Don’t assume that fighting that psych. claim that was just filed is a hopeless cause. With Armstrong at our side and good detective work of the injured worker’s background aggressively pursued, who knows, it may be a winner after all.

Tuesday, September 16, 2014

Confirm, but don’t fish, when seeking return-to-work medical info under the ADA


The EEOC has sued Minnesota-based Cummins Power Generation for requiring an employee to submit to an alleged overly broad fitness-for-duty examination.

According to the EEOC:

In its lawsuit, the federal agency contended that Cummins required an employee to sign various medical release forms that sought irrelevant information. Cummins informed the employee that he had to sign a release before taking a fitness-for-duty examination. When the employee objected to executing the releases presented to him, Cummins informed him that he had to sign a release or face termination. Cummins ultimately fired the employee for failing to sign the release, the EEOC said….

“The EEOC doesn’t challenge Cummins’ request for a fitness-for-duty examination, but Cummins had an obligation to request only those medical records and information that actually pertained to that issue,” said John Hendrickson, regional attorney for the EEOC’s Chicago district. “Employees don’t give up all rights to privacy of their medical information when they get a job. By asking for all and sundry medical information, Cummins went too far.

The EEOC’s Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the ADA provides further explanation:

May an employer make disability-related inquiries or require a medical examination when an employee who has been on leave for a medical condition seeks to return to work?

Yes. If an employer has a reasonable belief that an employee’s present ability to perform essential job functions will be impaired by a medical condition or that s/he will pose a direct threat due to a medical condition, the employer may make disability-related inquiries or require the employee to submit to a medical examination. Any inquiries or examination, however, must be limited in scope to what is needed to make an assessment of the employee’s ability to work. Usually, inquiries or examinations related to the specific medical condition for which the employee took leave will be all that is warranted. The employer may not use the employee’s leave as a justification for making far-ranging disability-related inquiries or requiring an unrelated medical examination.

In other words, medical information related to the employees ability to return to work is fair game upon a post-leave fitness-for-duty examination. An employer cannot, however, use the examination as an excuse for a fishing expedition into an employee’s entire medical history.

The 6th Circuit said it best in Sullivan v. River Valley School Dist. (1999), the leading case on this issue:

[A] fitness-for-duty examination … is not an excuse for every wide-ranging assessment of mental or physical debilitation that could conceivably affect the quality of an employee’s job performance. While it is true that the ADA limits an employer’s ability to request unfounded examinations to prevent “the unwanted exposure of the employee’s disability and the stigma it may carry,” an employer may order a well-founded examination…. [H]ealth problems that significantly affect an employee’s performance of essential job functions justify ordering a physical examination “even if the examination might disclose whether the employee is disabled or the extent of any disability.”

So, the moral of this story is to confirm, but don’t fish, when seeking medical information from an employee returning to work following a medical leave of absence.

Monday, September 15, 2014

Cutetallica — 4 lessons in talent management


Those of you who’ve been reading for awhile know that my 8-year-old daughter plays in a rock band. “Band” might be too ambitious of a term. She’s taken guitar lessons at School of Rock, in Strongsville, Ohio, for a couple of years, and since January has taken part in its performance program, which is known as Rock 101 for the beginner musicians. For her first set of performances in January, she was the only student, leaving her to play guitar and sing on every song. That pattern continued for her next set of shows in May, as the band added a drummer, but no singers.

Norah performed her most recent shows over the past two Saturdays. This time, even though she was joined by two other singers, she still sang lead on three of the songs (while still playing guitar), and added a new instrument, bass, on the fourth. Needless to say, she killed it (again):

 

 

So you don’t think I’m just a shill for my daughter, here are four talent-management lessons to take away from my rock star:

1. Let employees be who they are. “Cutetallica” was born out of the show director telling Norah that she sounds too cute when she sings For Whom the Bell Tolls, which, after all, is about death and the Grim Reaper. Her guitar teacher, on the other hand, liked Norah’s cute-sounding version of the song. Hence, Cutetallica. Your employees are who they are. If you want their best, don’t try to force a round peg into a square hole. Instead, let them perform while being true to themselves and their talents.

2. Push your employees. School of Rock gets it. It knows how to push kids to their limits, and recognizes that, much more often than not, talent rises to the occasion. Let your employees rise and fall to their abilities. Push them hard, and take away the safety net. They’ll surprise and delight you.

3. Age has no role in the workplace. Don’t rely on age (young or old) as a factor in your employment or staffing decisions. If School of Rock limited Norah’s ceiling by her 8-year-old age, she’d still be playing one instrument, and would stay in Rock 101 for a few more years. Instead, they allow her to take off the training wheels and succeed by her ability, not the perception of her ability based on how many years she’s been alive.

4. Talent is not a substitute for hard work. What impresses me most about how well Norah performs isn’t the performance, but all of the time and effort she puts in to honing it. Yes, I can be the nagging parent (“Did you practice your guitar today?”), but she’s the one putting in the time in her bedroom, making sure she’s going to nail her solo in About A Girl, and guaranteeing that she won’t forget any lyrics in the second verse of For Whom the Bell Tolls. Talent can sometimes leave you in the lurch, but hard work never will.

This was Norah’s last Rock 101 performance. She’s graduated to playing with the older, more experienced kids. Four months from now, I’ll be back to entertain you with the music of Joan Jett, as strummed and sung by Norah Hyman, maybe with an HR or employment law lesson to teach along the way.


If you’re in the area, Cutetallica has one show left, this Sunday, September 21, at 4 pm, at the Strongsville Chalet, 16200 Valley Pkwy, Strongsville, Ohio, as part of the Arts in Strongsville “Day at the Chalet.”

Friday, September 12, 2014

WIRTW #336 (the “tinder-box” edition)


If you’re a start-up in the business of selling online dating through an iPhone app, its probably best that one of your executives not be accused of sexual harassment. Thus, it shouldn’t come as a surprise that earlier this week, Tinder’s chief marketing officer resigned as part of a settlement of a sexual harassment claim levied by one of the company’s female co-founders. From USAToday:

Justin Mateen, the Tinder executive accused of sexually harassing a coworker he had dated, has resigned from the company. The resignation came as the dating startup settled the sexual harassment lawsuit from Whitney Wolfe, one of Tinder’s early employees.

Wolfe, who says she was a Tinder co-founder, alleged in June that she was pressured to resign after complaining about Mateen’s behavior which included “sexist, racist and otherwise inappropriate comments, emails and text messages.” She also claimed she was stripped of her “co-founder” title.

This is one of several high-profile cases that alleges sexist behavior in California’s tech industry.

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

Discrimination

Social Media & Workplace Technology

HR & Employee Relations

Wage & Hour

Labor Relations

Thursday, September 11, 2014

Do your BYOD employees understand the remote-wipe?


Remote_Wipe_Apple_iPhoneMy kids are growing up. For example, we’ve now graduated from me having to wake them up in the morning for school and helping my son get dressed, to his big sister setting the alarm on her iPod, and both kids waking up and dressing without parental supervision. There is one area, however, for which my 6-year-old still requires help. Every now and again, I will hear the familiar cry of, “Daddy, I went poopies,” which beckons me into the bathroom to inspect, and, if necessary, aid his wiping technique.

Employers and employees are getting used to wiping of another kind—the remote wiping of employees’ personal mobile devices.

More and more employers are embracing BYOD (“bring your own device”) as a win-win for employers and employees. Employees get to use the device of their choice, without having to juggle multiple gadgets, while employers save on hardware costs. One survey I read (as cited by the Wall Street Journal) suggested that by 2017, half of all employers will stop providing mobile devices to employees and require them to use their own for work.

The use of personal devices for work, however, raises an important issue. How do employer ensure that company information is removed from a device if it goes missing or if an employee leaves the business. The answer is the employer must have the ability to remote-wipe the device to remove its data. What happens, however, if a remote-wipe compromises an employee’s personal data? I would argue that it is the risk employees take for BYODing. Employer have to be able to guarantee the security of their own information, even if it might compromise employee’s personal data.

SHRM predicts that “as state and federal regulations struggle to keep up with new technology, an employer’s ability to wipe employee personal cell phones and devices will likely be tested through the courts.” How can you best protect your organization from the risk of lawsuit by an employee who loses personal data through your remote-wipe of a mobile device? Have a BYOD policy—upon which employees place their John Hancock attesting to having read and understood the policy—which unequivocally states that:

  1. the employee’s phone will be wiped (remotely or otherwise) of all company-related information if the device is reported lost or stolen and upon the termination of employment;
  2. the employee understands that this wiping could result in the loss of personal data or information; and
  3. the employee indemnifies the company for an loss or damage that may result from the wiping of the phone under the policy.

With those protection in place before an employee decides to use his or her own personal device for work, an employee will have a harder time challenging the after-effects of a remote wipe.

As for my son, that’s for another day…

[Image by Intel Free Press [CC-BY-2.0], via Wikimedia Commons]

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