WIRTW #112

Here’s what you missed this week if you’re only reading my blog.

Labor

• Breakfast with NLRB Regional Director - (Part 3) - What Issues Should Employers Be On the Lookout For? – from Daniel Schwartz’s Connecticut Employment law

• Installing webcams an unfair labor practice? – from the LawMemo Employment Law Blog

• WSJ: Labor Leaders Assess EFCA's Prospects After Brown Election in MA – at the EFCA Report

• DOL Argues State Wage and Hour Class Actions are Compatible with the FLSA – from the Washington D.C. Employment Law Update

Sex Discrimination & Harassment

• Pregnancy discrimination in the workplace still a very live issue – from Donna Seale’s Human Rights in the Workplace

• Adverse employment action based on gender-related non-conforming behavior and appearance is impermissible – from Employment Law Matters

• Of slacks and sex discrimination – from Colleen McGushin’s Work Matters

• Do employers have a heightened duty to protect teen workers from harassment? – by Sindy Warren at the Warren & Hays Employment Law Blog by Sindy

• Judging Credibility of Witnesses in Harassment Investigation – via Debra Reilly’s Workplace Investigations Blog

Non-Competition Agreements

• Court Orders Barring Enforcement of a Non-competition Agreement - Reverse Injunctive Relief – via the My Employment Lawyer Wiki

• Jay & Conan - Best Legal Analysis Roundup – via Teri Rasmussen’s Ohio Practical Business Law

Social Networking

• FINRA Issues Guidance on Blogs and Social Networking Web Sites – from the Social Networking Law Blog

• Q&A On Using Social Networks For Background Screening – from fyiscreening.com

Miscellaneous

• State of the Union — Employment Law – from The Word by John Phillips

• “Zubulake Revisited: Six Years Later” Judge Shira Scheindlin Issues her Latest e-Discovery Opinion – from Electronic Discovery Law

• Sorry Fido, You Won't Qualify Your Owner for FMLA Leave – at the Prima Facie Law Blog

• The Aftermath of a Supreme Court Decision: Another MDV – from Michael Fox’s Jottings By An Employer's Lawyer

• Importance of Litigation Avoidance and Proactive Practices – by Stephanie R. Thomas, Ph.D.

• Shabby Treatment at Termination Begs for a Lawsuit – from HR Daily Advisor

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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.

Don’t forget about the retaliation

According to a story on NJ.com, a jury has ordered an adult novelty company to pay $500,000 to a fired saleswoman. She had sued for harassment and retaliation following her termination, claiming that she was fired after complaining about harassment by a co-worker. According to her attorney, “The president of the company yelled and screamed at her and disciplined her for the first time in the four years she’d worked there. He accused her of saying bad things about the company.”

We can debate whether someone who chooses sell adult products can be sexually harassed. What should not be open to debate, though, is that a company cannot berate, discipline, or terminate an employee following a harassment or discrimination complaint. Allegations of retaliation often turn a defensible EEO lawsuit into a huge liability risk. Unfortunately, this lesson is one that many companies do not learn until it’s too late.

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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.

What’s good for the goose isn’t always good for the gander: legal fees in employment lawsuits

One of the questions clients often ask me is whether they can pursue a plaintiff for defense costs after a successful dismissal. It only seems fair to the client that if they have to pay legal fees if the employee wins a discrimination lawsuit, the employee should be held to the same standard.

The answer is that an employer can pursue a plaintiff for legal fees, but it has to prove that the lawsuit was brought frivolously, which is a tall order. Ohio law defines frivolous conduct as follows:

• It obviously serves merely to harass or maliciously injure another party to the civil action or appeal or is for another improper purpose.

• It is not warranted under existing law, cannot be supported by a good faith argument for an extension, modification, or reversal of existing law, or cannot be supported by a good faith argument for the establishment of new law.

• The conduct consists of allegations or other factual contentions that have no evidentiary support or are not likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.

• The conduct consists of denials or factual contentions that are not warranted by the evidence or are not reasonably based on a lack of information or belief.

While it is not impossible, it is very difficult to prove that a employee acted frivolously in filing an employment lawsuit. Instead of spending time and money worrying about recouping legal fees from ex-employees, employers would better served chalking up litigation expenses as a cost of doing business, or simply avoiding litigation in the first place.

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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? FMLA leave for unmarried fathers

Do you need another reason to get married? The FMLA provides husbands greater rights than unwed fathers.

The FMLA distinguishes between fathers and husbands based on the type of FMLA-leave sought:

• Fathers are entitled to FMLA leave for the birth of their child and for paternity leave to be with the healthy newborn child (i.e., bonding time) during the 12-month period beginning on the date of birth.

• However, only husbands are eligible to take leave to care for his incapacitated pregnant spouse, to care for her during her prenatal care, or to care for her following the birth of a child if she has a serious health condition.

The FMLA only grants unmarried fathers paternity leave rights. It gives no benefit to the unmarried for any leave to care for the baby’s mother, either prenatally or postnatally.

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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.

Faith healing and the FMLA

The Smart HR Manager brought to my attention a recent case out of Massachusetts which held that an employee could not use FMLA leave to care for a spouse with a serious health condition who seeks to travel abroad for faith-based healing. The opinion, however, dodges the issue of whether faith-based healing is covered by the FMLA. Instead, it dismissed the FMLA claim because more than half of the trip was spent visiting family and friends and sightseeing, and the FMLA does not permit employees to vacation with a seriously ill spouse, even in a caregiving capacity.

The case, though, got me to thinking, is a faith-healer covered under the FMLA as a “health care provider?” The most logical place to look is the FMLA’s regulations. Section 825.125 defines a “health care provider” as—

1. A doctor of medicine or osteopathy;

2. Podiatrists, dentists, clinical psychologists, optometrists, and chiropractors;

3. Nurse practitioners, nurse-midwives, clinical social workers and physician assistants;

4. Christian Science Practitioners listed with the First Church of Christ, Scientist in Boston, Massachusetts; or

5. Any health care provider from whom an employer or the employer’s group health plan’s benefits manager will accept certification of the existence of a serious health condition to substantiate a claim for benefits.

Faith-healers do not fall under any of these categories. This conclusion only resolves whether the FMLA covers leave for faith-healing. It does not address whether other laws – such as Title VII’s religious discrimination protections – protect these employees, which is a topic for another day.

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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 #111

Conan O’Brien, Jay Leno, and NBC continue to dominate the headlines this week. I’ve previously shared my thoughts. Here’s what my fellow bloggers had to say this past week:

• What Can Employer’s Learn From Conan O’Brien’s Severance Agreement? – via Molly DiBianca at Delaware Employment Law.

• What Does the Conan-Leno-NBC Debacle Mean for Entertainment Law? – from Above the Law.

• Conan, Leno, Letterman, Money – at The Word on Employment Law with John Phillips.

• Boss Basics: Real Leaders Really Take Care of Their Staffs – from The Business of Management.

• Lessons from Conan's Non-Compete Negotiations – via Rob Radcliff’s Smooth Transitions.

• Thoughts on the Conan O'Brien Debacle – by the Workplace Diva.

The other big story of the week was the election of Scott Brown to fill the late Ted Kennedy’s Senate seat. It cost the Democrats their super-majority, and will have long-lasting effects on the President’s agenda, including his ambitious slate of labor and employment reforms. Here’s what other have to say about the swing of the political tide in Washington:

• The Brown Effect: Is EFCA Dead? – from Mark Toth’s Manpower Employment Blawg.

• How Will Brown's Win Impact Labor and Employment Law? – from the Washington DC Employment Law Update.

• Another Blow to EFCA Passage – via Workplace Horizons.

• Scott Brown win spun as “victory” by Big Labor – at LaborPains.org.

• The Importance Of Scott Brown: Everyone Agrees, But… – via Discriminations.

As for other news of the week that you might have missed…

• The True Cost of Employment Litigation – via Dan Schwartz’s Connecticut Employment Law.

• Comment on ‘Go Time’ For Discrimination Claims – by Stephanie Thomas.

• A Trap for the Unwary: "Professional" Duties and the Professional Exemption – from New York Labor and Employment Law Report by Joseph Dole.

• Employment-related class actions on the rise – by Sindy Warren at the Warren & Hays Employment Law Blog.

• Discrimination on the basis of “color” – at Maryland Employment Law Developments.

• Is This Retaliation or Discrimination? – at the UndercoverLawyer.

• Less Than 15 Employees? There's Always Immigration Discrimination – from Michael Fox’s Jottings By An Employer's Lawyer.

• Non-Disabled Applicant Can Go To Trial Based on Company's Pre-Employment Medical Inquiry, Says Eleventh Circuit – from Florida Employment Law.

• Catch Fishy FMLA Requests With the 3 R's – via Mindy Chapman’s Case in Point.

• Is the job so easy a caveman could do it? – at the Wage & Hour Defense 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.

Warning – vulgar language ahead: 11th Circuit decides whether tasteless workplace behavior is actionable as sexual harassment

We recite the profane language that allegedly permeated this workplace exactly as it was spoken in order to present and properly examine the social context in which it arose. We do not explicate this vulgar language lightly, but only because its full consideration is essential to measure whether these words and this conduct could be read as having created “an environment that a reasonable person would find hostile or abusive.”

So starts the 11th Circuit’s opinion in Reeves v. C.H. Robinson Worldwide (1/20/10) [pdf], which decides the issue of whether vulgar language to which all employees (male and female) are equally exposed is actionable as sexual harassment.

The court made a clear distinction between general vulgarities and sex-specific epithets:

While the record is replete with evidence of general, indiscriminate vulgarity, there is also ample evidence of gender-specific, derogatory comments made about women on account of their sex….

Reeves … identified a substantial corpus of gender-derogatory language addressed specifically to women as a group in the workplace. Her coworkers used such language to refer to or to insult individual females with whom they spoke on the phone or who worked in a separate area of the branch. Although not speaking to Reeves specifically, Reeves said that her male co-workers referred to individuals in the workplace as “bitch,” “fucking bitch,” “fucking whore,” “crack whore,” and “cunt.”

Thus, the court differentiated between general, gender-nonspecific swear words, such as shit and fuck, (maybe improper, but not necessarily unlawful) as compared to gender-specific epithets such as bitch, whore, and, the granddaddy of them all, cunt (unlawful harassment).

[T]he context may illuminate whether the use of an extremely vulgar, genderneutral term such as “fucking” would contribute to a hostile work environment. “Fucking” can be used as an intensifying adjective before gender-specific epithets such as “bitch.” In that context, “fucking” is used to strengthen the attack on women, and is therefore relevant to the Title VII analysis. However, the obscene word does not itself afford a gender-specific meaning. Thus, when used in context without reference to gender, “fuck” and “fucking” fall more aptly under the rubric of general vulgarity that Title VII does not regulate….

[W]ords and conduct that are sufficiently gender-specific and either severe or pervasive may state a claim of a hostile work environment, even if the words are not directed specifically at the plaintiff…. It is enough to hear co-workers on a daily basis refer to female colleagues as “bitches,” “whores” and “cunts,” to understand that they view women negatively, and in a humiliating or degrading way. The harasser need not close the circle with reference to the plaintiff specifically: “and you are a ‘bitch,’ too.”

To conclude:

• General vulgarities are not actionable as harassment.
• Severe or pervasive gender-specific words or phrases are actionable as harassment even if the words are not specifically directed at one employee, but merely generally used in the workplace.
• Severe or pervasive conduct targeting a protected group also qualifies as actionable harassment.

The takeaway for employers – words are sometimes not just words, and businesses should respond to complaints about coarse or vulgar language as they would to any other complaint of harassment. An employer cannot just assume that words are harmless and bury its head in the sand.

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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.

How much is a non-compete worth?

According to one Ohio appellate court, $500,000. Marketing Associates v. Gottlieb (1/14/10) [pdf] upheld a half-million dollar jury verdict against an employee who breached a non-compete by resigning and targeting his former employer’s largest client after opening his own shop.

Non-competition cases tend to follow a pattern. An employee resigns, the ex-employer’s attorney sends out a cease-and-desist letter if competitive activities are threatened or suspected, a lawsuit is filed, and injunctive relief is sought trying to prevent the employee from competing, soliciting customers and employees, and using trade secrets and other confidential information.

Separate from the injunctive relief, though, non-competition agreements have a value. Employees who compete against a former employer in the face of a non-compete not only run of the risk of a court entering an injunction and putting them out of work, but also that any money earned in violation of the non-compete will be paid over to the former employer as damages. And, if the employer can show that an employee breached a duty of loyalty while still employed (misappropriating files or information or diverting customers, for example), that damage figure will only go up.

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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? Do you need a moonlighting policy?

Moonlighting is when an employee works a job other than their primary job. In today’s world, for example, many people find it necessary to work second or even third jobs just to get by. Assuming you want to permit employees work a second job, it is best to have a policy in place to address how it affects your business.

Such a policy should, at a minimum, address the following issues:

1. Interference with primary job. The main purpose of most moonlighting policies is to set out your expectation that employees will treat their work at your business as their primary job and will not allow other jobs to interfere with the performance of the primary job. You should make it clear that you expect the employee to put your job first.

2. Conflict of interest. Above all else, you need to protect your business. A conflict of interest policy can help ensure that your employees don’t work for a competitor while working for you. You should also consider the potential impact – positive and negative – of an employee working for a customer or vendor. The same should also cover confidential and other proprietary information.

3. What about leaves of absence? Employees should not be able to work a second job while on a leave of absence – medical, for example – from their primary job.

4. Approval of employment. Consider including a clause that requires approval of any outside employment. In implementing such a clause, however, be sure to do it fairly and equitably across the board, and avoid any appearance of preferential or discriminatory treatment.

You do not have to permit employees to hold other jobs. If you do, however, consider putting a policy in place to set expectations up-front and to give you the protection you need should an employee’s outside work interfere with your 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.

WIRTW #110

While the tragedy in Haiti has pushed Jay and Conan off the front page, NBC’s late night debacle continues to be one of the week’s biggest stories. My fellow bloggers share their thoughts on the myriad employment law issues this story raises:

• Can Conan Compete in Pennsylvania? – via Philip Miles’s Lawffice Space.

• Why FOX can hire Conan as soon as he leaves NBC and How Conan O'Brien powned NBC – from Jay Shepherd’s Gruntled Employees.

• What Can Employers Learn From Conan O’Brien and NBC? – by William Bowser at Delaware Employment Law.

Other issues covered this week:

Race Discrimination

• Harry Reid Teaches Unintentional Lesson About Racial Language? – from The Word on Employment Law with John Phillips.

• Is Reid racist? (And what we can learn from the recent media frenzy) – from Sindy Warren at the recently redesigned Warren & Hays Employment Law Blog.

• U of Iowa Study Shows Race Not an Important Factor in Hiring NFL Head Coaches – via Patrick Smith’s Iowa Employment Law.

• Forcing Managers to Interview Minority Candidates - Necessary or Pure Bureaucracy? – by Kris Dunn, The HR Capitalist.

Wage & Hour

• Paid Time Off – A Costly Mistake? How Does Your Company Stack Up? – at BLR’s HR Daily Advisor.

• How much influence must someone have in the firing process to qualify as exempt from overtime under the executive exemption to the Fair Labor Standards Act rules? – at the Overtime Advisor.

• EBSA Releases Updated Model COBRA Subsidy Notices – from the Washington DC Employment Law Update.

• Top 10 Wage-and-Hour Settlements Tally 44% More in 2009 – from the ABA Journal.

• Two Steps to Insure You Are Paying Your Employees Correctly – by Marylee Abrams at Minnesota Labor & Employment Law.

Harassment

• What's the Difference Between a Sexual Harassment Investigation and a Sexual Discrimination Investigation? – at Debra Reilly’s Workplace Investigations.

• Eye Witness Testimony is Often Inaccurate – at Tom Crane’s San Antonio Employment Law.

Finally, two follow-ups to earlier posts of mine.

• LaborPains.org reports that AFL-CIO President Richard Trumka is predicting that the Employee Free Choice Act will pass by March. His statement is the exact opposite of my prediction on this same issue.

• The Evil HR Lady asks whether it is legal not to hire someone because she is the sister of a former employee that did not leave on good terms. Associational retaliation – that is, taking an action against someone because a close relation engaged in protected activity – is not illegal in the 6th Circuit. The Supreme Court, however, is considering reviewing this issue, so it is worth keeping an eye on 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.

Bills seeks to prohibit use of credit information in employment

Ohio House Bill 340 seeks to make it unlawful for an employer to discriminate on the basis of credit history. If enacted, it would amend Ohio’s anti-discrimination law to include the following:

It shall be an unlawful discriminatory practice for an employer to use a person's credit rating or score or consumer credit history as a factor in making decisions regarding that person's employment, including hiring, tenure, terms, conditions, or privileges of employment, or any matter directly or indirectly related to employment.

Unlike the federal bankruptcy discrimination statute we looked at on Tuesday, this law would prohibit any use of credit information in employment. While there is no doubt that many have been adversely affected by the ongoing economic crisis, this statute is an overreaction. There exist lots of valid reasons to use consumer credit as one factor in the hiring matrix. For example, if you can conclude that an applicant does not, for whatever reason, manage his personal finances properly, do you want to hire him to handle your business’s finances as its controller or have access to money in your cash register?

The federal Fair Credit Reporting Act already provides protections to consumers in how employers obtain their credit information, and prohibit access without consent. We do not need additional protection to limit how employers use this lawfully obtained information, especially when this information can give employers insight to an employee’s sense of personal responsibility.

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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.

To taking the high road and not burning bridges…

Conan O’Brien has every right to flat out pissed at NBC. They kept him tethered to his 12:35 a.m. slot for five years by promising him The Tonight Show, and then pulled the plug after a short seven months because of their own programming ineptitude. The following is Conan’s witty, yet graceful, response to his bosses at NBC (via MSNBC.com):

People of Earth:

In the last few days, I’ve been getting a lot of sympathy calls, and I want to start by making it clear that no one should waste a second feeling sorry for me. For 17 years, I’ve been getting paid to do what I love most and, in a world with real problems, I’ve been absurdly lucky. That said, I’ve been suddenly put in a very public predicament and my bosses are demanding an immediate decision.

Six years ago, I signed a contract with NBC to take over The Tonight Show in June of 2009. Like a lot of us, I grew up watching Johnny Carson every night and the chance to one day sit in that chair has meant everything to me. I worked long and hard to get that opportunity, passed up far more lucrative offers, and since 2004 I have spent literally hundreds of hours thinking of ways to extend the franchise long into the future. It was my mistaken belief that, like my predecessor, I would have the benefit of some time and, just as important, some degree of ratings support from the prime-time schedule. Building a lasting audience at 11:30 is impossible without both.

But sadly, we were never given that chance. After only seven months, with my Tonight Show in its infancy, NBC has decided to react to their terrible difficulties in prime-time by making a change in their long-established late night schedule.

Last Thursday, NBC executives told me they intended to move the Tonight Show to 12:05 to accommodate the Jay Leno Show at 11:35. For 60 years the Tonight Show has aired immediately following the late local news. I sincerely believe that delaying the Tonight Show into the next day to accommodate another comedy program will seriously damage what I consider to be the greatest franchise in the history of broadcasting. The Tonight Show at 12:05 simply isn’t the Tonight Show. Also, if I accept this move I will be knocking the Late Night show, which I inherited from David Letterman and passed on to Jimmy Fallon, out of its long-held time slot. That would hurt the other NBC franchise that I love, and it would be unfair to Jimmy.

So it has come to this: I cannot express in words how much I enjoy hosting this program and what an enormous personal disappointment it is for me to consider losing it. My staff and I have worked unbelievably hard and we are very proud of our contribution to the legacy of The Tonight Show. But I cannot participate in what I honestly believe is its destruction. Some people will make the argument that with DVRs and the Internet a time slot doesn’t matter. But with the Tonight Show, I believe nothing could matter more.

There has been speculation about my going to another network but, to set the record straight, I currently have no other offer and honestly have no idea what happens next. My hope is that NBC and I can resolve this quickly so that my staff, crew, and I can do a show we can be proud of, for a company that values our work.

Have a great day and, for the record, I am truly sorry about my hair; it’s always been that way.

Yours,

Conan

Do you think NBC will be more or less likely to work with Conan to amicably resolve this dispute because of how he is handling himself? Conan is much better served by issuing this respectful, witty, yet pointed statement, than having his lawyers (and trust me, he has lawyers advising him every step of the way) threaten to unleash unholy hell upon NBC. Kudos for Conan for taking the high road and explaining why he is making his decision without unnecessarily skewering the corporate executives whom he must believe screwed him.

Employees leave businesses each and every day, yet many believe that it is acceptable to burn bridges as they run from one employer to another. For example, it never ceases to amaze me how many employees think its better for them to open a competing shop and poach customers instead of sitting down with their former employer to work out the terms of an existing noncompetition agreement. Employees are best served following Conan’s example in exiting a business – even if they have to swallow a little bit of pride and take the high road.

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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? Bankruptcy discrimination

The economy will continue to dominate the headlines in 2010. And, as the economy continues to struggle to rebound, it is likely that your business will have employees who have filed bankruptcy. The question is what do you do with this information.

Do you know that bankruptcy discrimination is unlawful under the Bankruptcy Code.

No private employer may terminate the employment of, or discriminate with respect to employment against, an individual who is or has been a debtor under this title, a debtor or bankrupt under the Bankruptcy Act, or an individual associated with such debtor or bankrupt, solely because such debtor or bankrupt – (1) is or has been a debtor under this title or a debtor or bankrupt under the Bankruptcy Act; (2) has been insolvent before the commencement of a case under this title or during the case but before the grant or denial of a discharge; or (3) has not paid a debt that is dischargeable in a case under this title or that was discharged under the Bankruptcy Act.

In other words, federal law prohibits an employer from terminating an employee or taking an other adverse action against an employee because that employee filed bankruptcy or is associated with someone else who filed bankruptcy.

Three key points to make about this statute:

1. With one exception, every court that has applied this statute has found that it only applies to termination decisions – not hiring decisions. Thus, employers are reasonably safe taking a bankruptcy into consideration when making a hiring decision.

2. The Fair Credit Reporting Act still applies to how employers obtain employee credit information from third parties, including information about bankruptcies. This law only impacts what employers do with the information once they get it.

3. Unlike Title VII, this statute is narrowly written to provide that the bankruptcy must be the sole reason for the adverse action before liability attaches. This is a high standard for a plaintiff to meet, and perhaps explains why we see so few of these cases.

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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.

Something wicked this way comes – Congress’s 2010 employment law agenda

If political pundits are to be believed, the Democrats’ super-majority will go the way of the dodo in November’s mid-term elections. Without a 60-member super-majority, it will be that much more difficult for the current administration to make good on many of 2008’s campaign promises, which makes this year key for Democratic plans to revamp our employment laws. The Dems have an ambitious employment law slate. The following are the key employment law initiatives pending in Congress, ranked in order of the likelihood of passage this year, along with a discussion of what this will mean for your business if each passes (the full text of the legislation is hyperlinked).

1. Employment Non-Discrimination Act – ENDA would prohibit employers from discriminating or retaliating against actual or perceived gay, bisexual, or transgender employees or applicants. If this bill passes, you will have to cease discriminating on the basis of these classes, re-write your EEO policies, train your managers and supervisors to be more aware of issues that affect gay, bisexual, and transgendered people, and include these issues in all EEO and harassment training.

2. Protecting Older Workers Against Discrimination Act – In Gross v. FBL Fin. Servs., the U.S. Supreme Court held that there is no such animal as a mixed motive under the ADEA, and that to succeed on a federal disparate treatment age discrimination claim, a plaintiff must prove that age was the only cause of the challenged action. This legislation would overturn this case, and permit a plaintiff to establish age discrimination by demonstrating that age was a “motivating factor” for the adverse action. This bill will make it easier for plaintiffs to prove age discrimination, and make it more difficult for employers to defeat age claim on summary judgment. The result will be higher defense costs, more jury trials, and increased settlement values for federal age claims.

3. Healthy Families Act – The swine flu pandemic helped employee advocates prove their point that America’s workers’ need greater access to paid sick leave. This bill would require businesses with 15 or more employees to prove employees seven days of paid sick leave per year. If this bill passes, employers will have to rewrite employee leave policies to provide the required sick leave.

4. FMLA amendments: Family and Medical Leave Enhancement Act and Family Fairness Act – The former would expand the coverage of the FMLA to employers with 25 or more employees, and would expand the reasons for FMLA leave to include a child’s grandchild’s educational or activities extracurricular, or a child’s or elderly relative’s medical appointments. The latter would expand the FMLA’s coverage to include part-time employees. Passage of either of these bills would require employers to revisit and rewrite FMLA leave policies. Along with the Healthy Families Act, these amendments would further limit the ability of employers to manage and schedule employees’ working time.

5. Arbitration Fairness Act – The recent extension of the federal COBRA subsidy contained a provision that prohibits arbitration of Title VII claims for federal contractors who receive more than $1 million. This legislation would void all pre-dispute arbitration agreements that mandate arbitration of employment disputes, except for those contained in collective bargaining agreements. The enactment of this bill would require litigation of all employment disputes (a result, by the way, that I am not entirely opposed to).

6. Paycheck Fairness Act – This bill would provide for compensatory and punitive damages for FLSA violations, and would shift the burden in Equal Pay cases to employers to prove that differences in pay are sex-based and are related to job performance. Wage and hour claims already are the most difficult for employers to handle. This legislation would increase this difficulty, and further underscore employers’ need to be proactively vigilant with wage and hour compliance.

7. Employee Free Choice Act – Enough’s been written about the EFCA. If you are unaware of it, the EFCA would eliminate secret ballot elections for union representation and provide for binding arbitration for first-contract collective bargaining agreements. Next to President Obama’s universal health care, the EFCA is the most controversial legislation the Democrats are putting forth. Because of this controversy, and the hits they have taken during the health care debate, I do not think the EFCA will be pushed this year. And, without a big push from its supporters, I don’t see it becoming law.

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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 #109

Because of how the holidays fell this year, it’s been a few weeks since I’ve been able to recap what else is happening in the L&E Blawgosphere. Here’s what everyone missed.

• Make a New Year's Resolution to Review Your Anti-Harassment Policies – from New York Labor and Employment Law Report.

• EEOC Warns about Background Checks – via employeescreenIQ Blog.

• Senator Dodd's Legacy With Employers Is Clear: Family and Medical Leave Act – from Dan Schwartz’s Connecticut Employment Law.

• Paid Suspensions: You Don't Use Them Unless You're Pretty Sure They're Not Coming Back – from Kris Dunn, The HR Capitalist.

• No Right to Representation for Accused Nonunion Employees in Workplace Investigations-But for How Long? – via Debra Reilly’s Workplace Investigations Blog.

• Summary Judgment: Myths and Realities – at Patrick Smith’s Iowa Employment Law.

• Why the Philadelphia Eagles (Still) Need a Social-Media Policy – from Molly DiBianca at Delaware Employment Law.

• Recession Litigation Takes Off – via The Word on Employment Law with John Phillips.

• Preliminary Injunction Barring Retaliation Offers a Stern Reminder to Employers – from WorkplaceHorizons.

• ‘Tis the season (for seasonal affective disorder, that is) – from Sindy Warren at the Warren & Hays Employment Law Blog.

• Paying Exempt Employees Who Serve Jury Duty – from the Overtime Advisor.

• Do ‘Team Leaders’ Have the Same Harassment-Reporting Duties as Supervisors? – from Mindy Chapman’s Case In Point.

• Leave of absence taken in order to recover from a disability is not necessarily a “reasonable accommodation” under the ADA – from Employment Law Matters.

• Chart of EEOC Charges 1997-2009 – via 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.

A termination is not always a termination when the FMLA is involved

On December 5, 2002, James Randolph suffered a severe episode of depression, blacked out, and failed to report for work. Because December 5 was Randolph’s last day of probation for prior attendance violations, his employer terminated him. When Randolph awoke from his blackout, he discovered a voicemail message on his cell phone from his supervisor terminating him. With that discovery, Randolph had a break-down, abandoned his plans to call work to explain his absence, aborted a trip to his doctor, and drove to his mother’s house. It was his mother who, late that night, spoke to the same supervisor, stating that Randolph was having a nervous breakdown and suffering from a recurring condition that warranted medical leave. Randolph had a similar conversation the following day with the personnel department, but his employer refused to reverse its termination decision.

In Randolph v. Grange Mutual Casualty Co. (Franklin Cty. 12/22/09) [pdf], the court of appeals reversed the trial court dismissal of Randolph’s FMLA claim, and concluded that a jury issue existed on whether the company interfered with Randolph’s attempt to take unforeseeable FMLA leave on December 5. Under the FMLA, “[w]hen the approximate timing of the need for leave is not foreseeable, an employee should give notice to the employer of the need for FMLA leave as soon as practicable under the facts and circumstances of the particular case.”

Grange argued that Randolph did not provide notice of his need for FMLA leave as soon as practicable on December 5, citing to the nearly 9-hour gap between when he awoke from his blackout and when his mother finally contacted his supervisor. The appellate court rejected that argument, concluding that it should be up to jury to conclude whether Randolph’s fragile emotional state excused him from not contacting his employer upon coming to. In other words, what is “as soon as practicable” is a fact question, not a legal question.

Employees’ medical issues should raise a bunch of flags for employers, who must proceed with caution whenever taking action against such an employee. As the Randolph case points out, this caution could even extend to rescinding a termination in the right circumstances.

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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.

Repeat after me – Don’t bring guns to work

Driving into work this morning, I listened to a legitimate debate over whether the NBA should suspend Gilbert Arenas and his teammate, Javaris Crittenton, for pulling guns on each other during a late-2009 locker room confrontation. While a D.C. grand jury considers whether to indict Arenas, he tweets that he is the new John Wayne.

There is simply no excuse that an employee can make for this level of egregious misconduct. Arenas claims that he was joking when invited Crittenton to choose one of three guns to settle their gambling debt disagreement, but that does not even come close to excusing the misconduct. Yet, the media is having a legitimate debate over whether the NBA should fine Arenas, suspend him, or wait for the criminal justice system to have its say.

Let me make this real simple for everyone. If an employee brings a gun into your workplace, that employee should be fired, period. The fact that we can even have a discussion over the fate of Gilbert Arenas underscores the point that the world in which professional athletes live and work is not the same as ours.

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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? An employee’s (lack of) right to representation at an investigatory interviews or disciplinary meeting

Yesterday I discussed the illegality of firing an at-will employee for consulting with an attorney. Despite an employee’s right to talk to a lawyer about issues going on in your workplace, non-union employees do not have a right to representation at investigatory interviews or disciplinary meetings. In a union setting, rank-and-file employees enjoy what are called Weingarten Rights – the right to union representation at these encounters.

Those same rights do not extend to a non-union setting. In IBM Corp. (June 9, 2004) [pdf], the National Labor Relations Board concluded that “the right of an employee to a coworker’s presence in the absence of a union is outweighed by an employer’s right to conduct prompt, efficient, thorough, and confidential workplace investigations.” While the holding only mentioned a coworker representative, the employer had denied the employee’s request for a coworker or an attorney to be present.

It is important to note, however, that the federal courts and the NLRB have gone back and forth on this issue over the years, and that IBM was a tight 3-2 decision of a Bush-appointed NLRB. Even the IBM majority recognized that one could reasonably interpret the National Labor Relations Act to reach the opposite conclusion. Because President Obama has already appointed a new Chairperson, and will fill three other vacancies on the NLRB, there is a good chance this rule will change if the issue makes its way back to D.C. in the next three years.

For now, employers are well within their rights to prohibit employees from having representation during investigatory interviews or disciplinary meetings.

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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.

Lessons from (a) Leach – retaliation for talking to an attorney is a no-no

One of big stories that broke while I was off last week was the firing of Texas Tech head football coach Mike Leach. The university initially suspended Leech after a player accused him of locking him in a closet following a concussion. The school later changed the suspension to a termination after Leach filed a lawsuit seeking a restraining order to allow him to coach in the team’s bowl game.

In Ohio, Texas Tech’s actions could lead to a wrongful discharge claim, provided that the employee is at-will. Ohio law does not allow an at-will employee to be fired solely for consulting an attorney. Ohio law also does not allow an employee to be fired for filing a lawsuit. While an at-will employee generally can be fired for any reason or no reason, an exception exists when the termination jeopardizes a clear public policy. Access to legal services and access to the courts are such public policies.

What does this mean for employers? Simply that you cannot terminate an employee who you suspect may be consulting with counsel. These employees are protected as if they had come to you directly with a complaint about harassment or discrimination, or engaged in any other protected activity.

Come back tomorrow as we take this question to the next level, and answer the question of what happens when an employee asks to have counsel present at a disciplinary or termination meeting.

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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.