Friday, December 31, 2010

Top 10 Labor & Employment Law Stories of 2010: Numbers 2 and 1


top-ten-gold2. Social Networking. Mark Zuckerberg made the top of Time Magazine's annual list, but could only reach number two on mine. Last year’s top story fell a spot to number two this year. Nevertheless, 2010 was  huge year for social networking. In 2010, courts addressed the discovery of social media in employment disputes, the NLRB took up whether social media policies violate federal labor laws, and employers continued to harness social media as a screening tool for job applicants. Do you want to harbor a guess on whether this story will be near the top of 2011's list too?

 

1. Activist Federal Agencies. President Obama’s labor and employment legislative agenda may be a been a big dud, but that has not stopped the EEOC, the NLRB, and especially the DOL (and here, and here, and here, and here) from picking up the torch and running with it. And, as we've seen over the last couple of weeks, as big as story has been in 2011, it is poised to be even bigger in 2011. Employers, be afraid. 

 


There you have it—the top 10 labor and employment stories of the past year. Everyone have a safe and happy new year. I’ll be back on January 3 with fresh content.

 


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.

Thursday, December 30, 2010

Top 10 Labor & Employment Law Stories of 2010: Numbers 4 and 3


top-ten-gold Our next two stories impact women during and immediately after pregnancy.

4. Lactation Breaks. One of the lesser heralded provisions of the Patient Protection and Affordable Care Act (better known as the Health Care Reform Bill) is section 4207, which provides reasonable break time for nursing mothers. All employers with 50 or more employees (and most with less than 50 employees) are required to provide nursing mom’s as many unpaid breaks as needed, in a private space other than a bathroom, to express breast milk.

3. Pregnancy Leave Rights. In June, the Ohio Supreme Court clarified that Ohio’s pregnancy discrimination statute does not require that employer provide pregnant women greater leave rights than other employees. Two months later, the 6th Circuit likely took away part of this gift by holding that pregnancy-related impairments that are not part of a “normal” pregnancy qualify as an ADA-protected disability.

(And thank you everyone for your votes in the ABA Blawg 100 -- today is the last day for voting)

 

 

 


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.

Wednesday, December 29, 2010

Top 10 Labor & Employment Law Stories of 2010: Numbers 6 and 5


top-ten-gold Numbers 6 and 5 on our list takes up employee privacy rights and employee disability rights.

6. The Intersection of Privacy and Technology. Quon v. Arch Wireless may not have resolved the issue of employee privacy rights in employer-owned equipment, but it at least framed the scope of the debate: “Cell phone and text message communications are so pervasive that some persons may consider them to be essential means or necessary instruments for self-expression, even self identification. That might strengthen the case for an expectation of privacy. On the other hand, the ubiquity of those devices has made them generally affordable, so one could counter that employees who need cell phones or similar devices for personal matters can purchase and pay for their own. And employer policies concerning communications will of course shape the reasonable expectations of their employees, especially to the extent that such policies are clearly communicated.”

5. Courts Begin to Apply the ADAAA, and No Employer is Safe. The ADA Amendments Act went into effect almost two years ago, on January 1, 2009. Because it is not retroactive, however, its effects are only just starting to be seen in the courts. 2010 was the year that courts began to apply the amended law’s expansive definition of “disability.” The result—virtually no medical condition is safe from being considered a disability protected by the ADA.

(Only today and tomorrow to get your votes in. Thank you to everyone who's voted in the ABA Blawg 100)

 

 

 

 


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.

Tuesday, December 28, 2010

Top 10 Labor & Employment Law Stories of 2010: Numbers 8 and 7


top-ten-gold The next two stories on the yearly run-down both involve goings-on at the EEOC.

8. The EEOC Declares Open Season on Background Checks. Do you conduct background checks on employees before hiring them? If so, you might be in the EEOC’s crosshairs, as the agency targets credit histories and criminal histories and screening tools. Congress got in the action as well, considering legislation to ban the use of credit information in employment.

7. The EEOC Issues Its GINA Regulations. Last month, the EEOC finally published its long-awaited regulations interpreting the employment provisions of the Genetic Information Nondiscrimination Act. Given the breadth of the regulations, I expect genetic information discrimination to be a growing trend in 2011.

(Only three days left to vote - ABA Blawg 100)

 

 

 


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.

Monday, December 27, 2010

Top 10 Labor & Employment Law Stories of 2010: Numbers 10 and 9


top-ten-gold We start this year’s review not only by looking back at the past year, but also by looking forward to two stories that will dominate the headlines next year.

10. The Year of the Class Action. In May, a federal jury awarded a class of 5,600 Novartis female sales reps and entry-level managers $250 million to remedy systemic discrimination against women of child-bearing age. That huge verdict notwithstanding, what made 2010 the year of the class action was the Supreme Court’s agreement to hear the appeal of the multi-billion dollar Dukes sex discrimination lawsuit against Wal-Mart.

9. The Supreme Court’s Employment Law Docket. In the last quarter of 2010, the Supreme Court heard oral argument in three employment cases: Kasten v. St. Gobain (which will decide whether a purely oral complaint triggers the FLSA’s anti-retaliation provision), Staub v. Proctor Hosp. (which will decide the viability of the Cat’s Paw in discrimination cases), and Thompson v. N. Am. Stainless (which will decided whether Title VII prohibits an employer from retaliating by inflicting reprisals on a third party closely associated with the employee who engaged in such protected activity but who engaged in no protected activity of his or her own).

(Don't forget to vote - ABA Blawg 100)

 

 


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.

Thursday, December 23, 2010

WIRTW #158 (the Merry Christmas edition)


As has become my year-end tradition, next week I will countdown the top 10 labor and employment stories of the year. I do this for two reason: 1) I think it’s important to look back at the last year to understand where we will go next year, and 2) I always take the week between Christmas and New Year’s off to spend with my family.

As my holiday gift to everyone, enjoy David Bowie and Bing Crosby’s Little Drummer Boy, faithfully (and hilariously) recreated by Will Ferrell & John C. Reilly. Merry Christmas everyone.

(If you’re a last minute shopper and are still searching for the perfect gift for me, there are still 7 days left to vote for the top labor & employment blog at the ABA’s Blawg 100).

As a special note this week, thank you to Molly DiBianca and her Delaware Employment Law Blog for including me on her list of the top 100 employment law blogs. I encourage everyone to jump over to Molly’s blog (a fellow Blawg 100 honoree) to find the most comprehensive list of labor and employment law blogs around.

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

Background Checks

Discrimination

Social Media & Technology

Wage & Hour

HR & Employee Relations

Miscellanous


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.

Wednesday, December 22, 2010

DOL shares its preliminary interpretations on lactation breaks


Typically, December is a slow month for litigators. Courts stop calling juries. We all take vacations. Typically, the closer we get to Christmas the slower it gets, except, apparently, for the federal agencies in Washington. Yesterday, the NLRB published its proposed posting regulations, and the Department of Labor published its preliminary interpretation of the recent federal lactation break mandate.

Here are the DOL’s preliminary thoughts on employers’ obligations to lactating women:

  • Paid or unpaid breaks? Employers are not required to compensate nursing mothers for breaks taken for the purpose of expressing milk. However, lactation breaks are covered by the same rules that govern other work day breaks. If the employer permits short breaks, usually 20 minutes or less, the time must be counted as hours worked and paid accordingly. Additional time used beyond the authorized paid break time could be uncompensated.

  • What is a reasonable break time? Employers should consider both the frequency and number of breaks a nursing mother might need and the length of time she will need to express breast milk. The DOL believes that most women will need to take 2 to 3 breaks per 8 hour shift, each lasting between 15 and 20 minutes. These guidelines, however, are just that, and will vary from woman to woman depending on specific circumstances and needs.

  • What is an appropriate lactation space? An employer has no obligation to maintain a permanent, dedicated space for nursing mothers. Any space temporarily created or converted into a space for expressing milk or made available when needed by a nursing mother is sufficient, provided that the space is shielded from view, free from intrusion from coworkers and the public, and suitable for lactation. The only room that is not appropriate is a bathroom. The DOL also believes that an employee’s right to express milk includes the ability to safely store the milk.

  • What qualifies as an undue hardship for employers with less than 50 employees? The difficulty or expense must be “significant,” which is a stringent standard that employers will only be able to meet in limited circumstances.

  • Is there a relationship between lactation breaks and the FMLA? No. The DOL does not believe that breaks to express breast milk can be considered FMLA leave or counted against an employee’s FMLA leave entitlement.  

The DOL is accepting public comment on these preliminary interpretations until February 22, 2011. Anyone may submit comments either electronically at www.regulations.gov, or by mail to Montaniel Navarro, U.S. Department of Labor, 200 Constitution Avenue, NW., Room S-3502, Washington, DC 20210.

This issue will remain hot in 2011 as we await the DOL’s final comments and as employers continue to figure out how to make these new obligations work in their specific workplaces.


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.

When did we all stop accepting responsibility?


3127204345_13d184d865_m A woman in California has filed a class action lawsuit against McDonald’s. She claims that McDonald’s temps kids to eat unhealthily by promoting their fattening food with Happy Meal toys. I know you may this hard to believe, but, yes, parents, if you feed you kids too many Happy Meals, they may get fat. If a court agrees with this lawsuit, the parents who use McDonald’s as a crutch to feed their kids will be absolved of any responsibility for the resulting obesity. Yet, is it just the cheap cardboard box and tchotchke toys, or does the obesity result from parents that are either too busy or too lazy to feed their kids healthy foods? Or, do parents that permit their children to lounge around the house watching TV and playing video games beget overweight kids? Yes, too much fast food can make you fat. But, not only is it not the only reason kids become overweight, I’d venture to guess it is not the main reason either.

We have become a society that refuses to accept responsibilities for our faults. I see it all the time in employment cases. The insubordinate employee is convinced that her race/sex/age/disability was the reason behind her termination. The chronically late employee is convinced that he is being retaliated against despite his unreliability. The overly sensitive employee shrieks that one harmless email is a pattern and practice of lascivious harassment. One theme that resonates over and over in cases I defend is a refusal to accept responsibility. Yes, employers do discriminate, and retaliate, and harass. More often than not, however, businesses simply try to do right by their employees. Yet, if you believe all of the lawsuits that are filed, corporate America is one giant group of bigots and employees are never responsible for their own unemployment.

As we approach the new year, let’s all make it a resolution in 2011 to start taking responsibility for our own faults and shortcomings. It may decrease the number of lawsuits I am called on to defend, but it will make us a more credible society.


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.

Tuesday, December 21, 2010

Merry Christmas employers—NLRB proposes posting of federal labor rights for ALL covered employees


Today is National Look on the Bright Side Day. I’m having a hard time, though, finding the silver lining in the latest news to come from the NLRB. The agency is proposing that all employers that are potentially covered by the National Labor Relations Act (which is virtually all private-sector employers except for agricultural, railroad, and airline employers) notify employees of their rights under that Act. According to the NLRB's press release: “[M]any employees protected by the NLRA are unaware of their rights under the statute. The intended effects of this action are to increase knowledge of the NLRA among employees, to better enable the exercise of rights under the statute, and to promote statutory compliance by employers and unions.”

The posting would be similar to that which the DOL has mandated for federal contractors. The proposed posting would state that employees have the right to act together to improve wages and working conditions, to form, join and assist a union, to bargain collectively with their employer, and to choose not to do any of these activities. It also would provide examples of unlawful employer and union conduct and instructs employees how to contact the NLRB with questions or complaints.

The NLRB is accepting public comments on this proposed rule for the next 60 days. Comments can be either submitted electronically to www.regulations.gov, or by mail or hand-delivery to Lester A. Heltzer, Executive Secretary, NLRB, 1099 14th Street NW, Washington DC 20570. I urge business

In the meantime, I will continue to try to look on the bright side.


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? Employee alcohol testing


Under the ADA, an employer is prohibited from making disability-related inquiries and requiring medical examinations of employees unless if the inquiries are job-related and consistent with business necessity. In September, the EEOC filed suit against Pittsburgh-based U.S. Steel, claiming that it violated these rules by requiring random alcohol testing of probationary employees.

According to the EEOC’s Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees, the ADA differentiates between drug testing and alcohol testing. The ADA does not regulate the drug testing of employees because drug tests do not qualify as medical examinations. Blood, urine, and breath analyses to check for alcohol use, however, are considered medical examinations regulated by the ADA. Employers are permitted to maintain and enforce rules prohibiting employees from being under the influence of alcohol in the workplace. Employers are also permitted to conduct alcohol testing pursuant to such a rule if they have a reasonable belief that an employee may be under the influence of alcohol at work.

Random testing is just that, random. It is not tied to any reasonable belief about the employee’s on-the-job use of alcohol. I can make a very compelling argument that in any safety-sensitive position alcohol testing is job-related and consistent with business necessity. Nevertheless, and regardless of the circumstances, employers who intend to subject employees to alcohol testing should be mindful of these rules. Those that test without first consulting with employment counsel risk incurring the EEOC’s wrath.


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.

Monday, December 20, 2010

NLRB to permit “sweetheart” contracts


Imagine a union comes to you claiming to have signed authorization cards from a majority of your employees and offers you the following proposition. Instead of holding a secret ballot election, you recognize the union based on the signed cards. In exchange, the union will give you a sweetheart contract—a pre-negotiated contract with favorable terms and conditions. Here’s the catch. The contract has to contain a neutrality clause—a promise by the company to remain neutral in future organizing campaigns, forego secret ballot elections at any other facility, and recognize the union based upon a presentation of an authorization card majority at any other facility.

In Dana Corp. (10/6/10) [pdf], the NLRB sanctioned this practice as lawful under federal labor laws, and rejected a challenged by a group of anti-union employees that their employer had illegally colluded with the union:

The ultimate object of the National Labor Relations Act … is “industrial peace.” [I]t is well settled, consistent with those policies, that an employer may voluntarily recognize a union that has demonstrated majority support by means other than an election, including … authorization cards signed by a majority of the unit employees. Courts have endorsed voluntary recognition and deemed it “a favored element of national labor policy.” The Board should hesitate before creating new obstacles to voluntary recognition….

Categorically prohibiting pre-recognition negotiations over substantive issues would needlessly preclude unions and employers from confronting workplace challenges in a strategic manner that serves the employer’s needs, creates a more hospitable environment for collective bargaining, and—because no recognition is granted unless and until the union has majority support—still preserves employee free choice.

Just because you can agree to this “sweetheart” relationship with a union does not mean that you should. As the NLRB noted, “In practice, an employer’s willingness to voluntarily recognize a union may turn on the employer’s ability to predict the consequences of doing so.” An employer’s willingness to voluntarily recognize a union will also turn on its ability to predict the outcome of a secret ballot election. Currently, unions win 65.6% of secret ballot elections. Before you agree to take a union up on its voluntary recognition offer, you need to make an educated guess on whether your company falls within the one-out-of-three that wins a union election. If so, reject the union’s offer and opt for the election. Otherwise, you might be hedging your bets when you don’t have to.


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.

Friday, December 17, 2010

WIRTW #157 (the naughty or nice edition)


Peter the Elf graces our home every year between Thanksgiving night and Christmas Eve. He’s my family’s Elf on the Shelf. If you don’t have kids (or don’t celebrate Christmas), the Elf on the Shelf (available at Amazon and other fine retailers) is Santa’s eyes and ears. Each night after the kids go to bed he flies back to the North Pole to report to Santa on whether the kids are being naughty or nice. Each morning, before the kids awaken, he returns, perched in a different spot. The children can talk to Peter, but he is not allowed to talk back. But, if they touch Peter, he loses his Christmas magic and cannot fly back to the North Pole to tell Santa how good they’ve been (although I guess if they’ve been naughty they have nothing to lose).

My daughter (age 4½) added these words of wisdom about Peter in deciding to get dressed in her bedroom instead of our family room: “I don’t want Peter to see me naked. Then I’ll definitely get rocks for Christmas.”

Employers, were you naughty or nice in 2010? There’s still time to get on my nice list by clicking over to the ABA Blawg 100 and casting your vote for the Ohio Employer’s Law Blog.

Here are two great holiday-related posts I read this week:

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

Discrimination

Social Media

Privacy & Technology

HR & Employee Relations

Wage & Hour


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.

Thursday, December 16, 2010

University of Minnesota sidesteps minimum wage violations for “volunteer” employees


Have you seen the amazing video of the roof the Metrodome collapsing last weekend?


In need of a temporary home to host this Monday night’s game, the Vikings turned to the University of Minnesota. The problem, though, is that the University’s stadium is under five-foot snow drifts. To clear the field and seating bowl, the University asked for volunteers to work around the clock. ESPN is now reporting that the University will pay any shovelers, which is a very smart move on the school’s part.

The FLSA requires people who perform any work to be paid for all time spent working. Requiring anyone to perform work without pay violates this law. There is no such thing as a volunteer employee. All work hours must be paid hours, at least at the minimum wage (with the limited exception of bona fide interns).

It looks like the University received some sage legal advice before letting any “volunteers” lift any shovels. It is also an excellent example of how spending a few minutes consulting with your attorney could save you a few years of time having your attorney litigate for you.


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.

Wednesday, December 15, 2010

6th Circuit recognizes reasonable expectation of privacy in commercially-stored emails


Earlier this year, in Quon v. Arch Wireless, the Supreme Court dodged the question of whether one has a reasonable expectation of privacy in electronic communications. Yesterday, in U.S. v. Warshak (6th Cir. 12/14/10) [pdf], the 6th Circuit answered the question, at least as it pertains to one’s commercially-provided email account.

Warshak involves the criminal convictions of the distributors of the male enhancement herbal supplement Enzyte. Some the evidence used to convict Steven Warshak came from the government’s warrantless seizure of his emails account. Although the 6th Circuit affirmed the use of the emails in Warshak’s trial, the court, for the first time, recognized that individuals enjoy an objectively reasonable expectation of privacy in their commercially-stored email accounts:

Since the advent of email, the telephone call and the letter have waned in importance, and an explosion of Internet-based communication has taken place. People are now able to send sensitive and intimate information, instantaneously to friends, family, and colleagues half a world away. Lovers exchange sweet nothings, and businessmen swap ambitious plans, all with the click of a mouse button. Commerce has also taken hold in email. Online purchases are often documented in email accounts, and email is frequently used to remind patients and clients of imminent appointments. In short, “account” is an apt word for the conglomeration of stored messages that comprises an email account, as it provides an account of its owner’s life….

Email is the technological scion of tangible mail, and it plays an indispensable part in the Information Age. Over the last decade, email has become “so pervasive that some persons may consider [it] to be [an] essential means or necessary instrument[ ] for self-expression, even self-identification.” … It follows that email requires strong protection under the Fourth Amendment….

Unlike Quon, Warshak is not an employment case. Nevertheless, it provides insight into court’s views of email and personal privacy. And, it gets the issue right. Employers should continue to take heed if they pry into employees’ personal (i.e., non-employer-provided) email accounts. Courts will likely continue to err on the side of protecting employees’ privacy rights in their own personal emails, and will likely take a long, hard look at businesses that invade that privacy.


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.

Tuesday, December 14, 2010

Do you know? ABA/DOL’s Bridge to Justice (or, Bridge Over Troubled Referrals)


A couple of weeks ago, the American Bar Association and the Department of Labor’s Wage and Hour Division announced an unprecedented collaboration called “Bridge to Justice.” It is an ABA-approved attorney referral system to connect those who file wage and hour complaints with the DOL to attorneys who will handle cases the DOL is not interested in pursuing. Here’s the quick and dirty, courtesy of the DOL’s website:

Beginning on December 13, 2010, when FLSA or FMLA complainants are informed that the Wage and Hour Division is declining to pursue their complaints, they will also be given a toll-free number to contact the newly created ABA-Approved Attorney Referral System….

In addition, when the Wage and Hour Division has conducted an investigation, the complainant will now be provided information about the Wage and Hour Division’s determination regarding violations at issue and back wages owed. This information will be given to the complainants in the same letter informing them that the Wage and Hour Division will not be pursuing further action, and will be very useful for attorneys who may take the case. The Wage and Hour Division has also developed a special process for complainants and representing attorneys to quickly obtain certain relevant case information and documents when available.

Did I read that right? Will the DOL be providing the complaining party and the referred attorney “relevant case information and documents?” The DOL explains, in a short FAQ about its new attorney referral system:

Q: How does the ABA-Approved Attorney Referral Document Request process work?

A: A complainant who has received the toll-free number to the ABA-Approved Attorney Referral System after a Wage and Hour Division investigation will also receive a form to request the most relevant documents from her case file. These documents include the complainant’s own statement, the Wage and Hour Division’s back wage computations for the complainant, and copies of any documents the complainant provided to the Wage and Hour Investigator. The Wage and Hour Division will provide these documents expeditiously. The form also allows the worker or authorized attorney representative to request the case narrative from the file; however, it explains that requesting the narrative will delay the Wage and Hour Division’s response because it must be redacted. The letter sent to the complainant with notification of the Wage and Hour Division’s decision to not pursue the case will also include information about the violations found and back wages owed to the complainant.

In other words, the DOL will provide employees and the referred attorneys a roadmap to filing a lawsuit: the complainant’s statement, the nature of any violations found to have occurred, back wage computations, and the DOL’s own internal narrative.

It used to be that if the DOL declined to pursue a charge, there existed a better than average chance the claim would die. Now, lawyers will be lining up to receive a referral, along with a connect-the-dots claim. If this referral program doesn’t scare employers into conducting a proactive and comprehensive wage and hour audit to prevent these referral from taking place, nothing will.


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.

Monday, December 13, 2010

Prepare for the long hard winter and update your severe weather policy


Me, during last week's snow Today is Cleveland's second big snowstorm in less than a week. I, along with myriad other workers around the greater Cleveland area, are going to have a devil of a time getting into work today. How does your business handle inclement weather? Last winter, I outlined some ideas for businesses to consider during weather events. Have a look and see how my tips compare to your own policies. And, please, drive safely.


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.

Friday, December 10, 2010

WIRTW #156 (the Guantánamo edition)


The story of the week is courtesy of the legal humor blog (and fellow ABA Blawg 100 honoree—don’t forget to vote) Lowering the Bar, which reports on the Utah Supreme Court’s reinstatement of an employee’s tort claims against his employer. The allegations are that the employer used waterboarding and other forms of physical punishment as motivational techniques:

Basically, Hudgens alleges that Prosper encouraged the use of, let’s say, “enhanced employee motivational techniques,” specifically, waterboarding. Hudgens alleged that at the time of the incident, his supervisor was already known for what the court called “questionable management practices”:

“Specifically, when an employee did not meet performance goals, [the supervisor] would draw a mustache on the employee using permanent marker or he would remove the employee’s chair. Additionally, he would patrol the employees’ work area with a wooden paddle, which he would use to strike desks and tabletops.”

Where do I sign up to work for that supervisor?

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

Discrimination

Social Networking & Technology

Employee Relations

Trade Secrets and Competition

Labor Relations


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.

Thursday, December 9, 2010

6th Circuit places burden on a disabled employee to propose a reasonable accommodation


Despite the breadth of the 2009 amendments to Americans with Disabilities Act, not all disabled employees receive the benefit of the Act’s protection. Instead, the Act only protects those employees who are “qualified,” that is, able to perform all of the essential functions of the job with or without reasonable accommodation. If necessary to determine the appropriate reasonable accommodation, the ADA’s regulations require an employer to “initiate an informal, interactive process with the qualified individual with a disability in need of the accommodation. This process should identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations.”

Whose burden is it, however, to propose a reasonable accommodation to account for an employee’s disability? According to Jakubowski v. The Christ Hosp., Inc. (12/8/10) [pdf], the burden falls squarely on the employee.

Dr. Martin Jakubowski suffers from Asperger’s syndrome, a severe and sustained impairment in social, occupational, or other important areas of functioning, with a marked impairment in the ability to regulate social interaction and communication. Following his diagnosis, the hospital terminated his employment. Before the termination, the hospital met with Dr. Jakubowski to discuss various accommodations for his poor communications skills, all of which he rejected. Because he did not propose another accommodation, the hospital met its burden to engage in the interactive process, and he could not proceed on his discrimination claim:

Jakubowski contends that Christ Hospital did not act in good faith because it did not offer him a remediation program similar to the one offered to the previous, unnamed resident who exhibited similar deficiencies. Importantly, Jakubowski did not request a remediation program at the accommodation meeting with Christ Hospital….

Christ Hospital … met with Jakubowski to discuss his proposed accommodations, and told him that the hospital lacked sufficient resources to comply. [It] also offered to help him find a pathology residency because it would involve less patient contact…. Because Christ Hospital met with Jakubowski, considered his proposed accommodations, informed him why they were unreasonable, offered assistance in finding a new pathology residency, and never hindered the process along the way, we agree that there is no dispute that Christ Hospital participated in the interactive accommodation process in good faith.

The ADA does not require an employer to offer a disabled employee the most reasonable accommodation, or the employee’s preferred accommodation. Instead, it only requires the employer to offer a reasonable accommodation, one which enables the employee to perform all of the essential functions of the job. If an employer meets this burden, the employee cannot complain that the employer rejected a proposed accommodation that did not address all essential functions, or failed to implement an accommodation that the employee did not propose.


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.

Wednesday, December 8, 2010

Does Justice Alito read my blog? Dissecting the oral argument in Thompson v. North Am. Stainless


Thompson v. North Am. Stainless is near and dear to my heart. This post marks the 8th I’ve written covering this important 6th Circuit retaliation case. Yesterday, the Supreme Court heard oral argument on the issue of whether Title VII prohibits an employer from retaliating by inflicting reprisals on a third party (such as a spouse, family member, or fiancé) closely associated with the employee who engaged in such protected activity but who engaged in no protected activity of his or her own. The oral argument transcript is available for download [pdf] from the Supreme Court’s website.

When the 6th Circuit originally recognized a cause of action for associational retaliation (before the en banc reversal that led to the Supreme Court appeal), I worried, “How close is close enough?”

In Thompson, the relationship was a fiancée. It is safe to assume liability will also extend to action taken against spouses. What about boyfriends and girlfriends? How long do you have to date to be protected from retaliation? The same protection also will probably extend to parents and children. What about siblings? Grandparents? Cousins? 3rd cousins twice removed? In-laws? Friends? Carpoolers? The people you share your lunch table with? The person you sat next to in 3rd grade? How close is close enough for an employer to intend for its actions to punish the exercise of protected activity? Do employers now have to ask for family trees and class pictures as part of the orientation process?

While I’m not so vain as to think that Justice Alito reads my blog (just in case, hello, Your Honor), the theme of the slippery slope resonated heavily in his questioning of Mr. Thompson’s attorney:

That’s what's troubling to me about – about the theory. Where it’s a fiancée, it’s – that’s a relatively strong case, but I can imagine a whole spectrum of cases in which there is a lesser relationship between those two persons, and if – if –­ if – unless there’s a clear line there someplace, this theory is rather troubling. …

Can you help – can you help provide where the clear line is? Does it go – does it include simply a good friend? Does it include somebody who just has lunch in the cafeteria every day with the person who engaged in the protected conduct? Somebody who once dated the person who engaged in the protected conduct? Are these all questions that have to go to a jury?

Justice Alito continued to hammer this theme when questioning the attorney arguing for the Justice Department:

Put yourself in the – in the shoes of an employer, and you – you think – you want to take an adverse employment action against employee A. You think you have good grounds for doing that, but you want – before you do it, you want to know whether you’re potentially opening yourself up to a retaliation claim.

Now, what is the employer supposed to do then? They say, … now we need to see whether this person who we’re thinking of taking the adverse employment action against has a … “close relationship” with any of those people. So what do you do? Do you call everybody in from the company and you say, now, is – you know, was – are these people dating? Did they once date? Are they good friends? What are you supposed to do?

Despite this Court’s perception as pro-business, it has proven itself to be a favorable venue for retaliation claims. This Court's pro-employee, anti-retaliation bent should hold form in this case. Notwithstanding Justice Alito’s (and my) concerns, reading the tea leaves I predict Thompson will be a victory for the employee. I cannot see this Court permitting an employer to fire an employee whose fiancée claims discrimination. There should be at least five Justices who will craft a standard workable enough to avoid Justice Alito’s slippery slope.

I don’t expect any bright lines to be drawn. Since Burlington Northern, it is clear that actionable retaliation includes any adverse action that is “harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination.” I expect the Court to conclude that this test encompasses associational retaliation; we will be litigating the degree of closeness and its impact on the “reasonable employee” in future retaliation cases.


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.

Tuesday, December 7, 2010

Do you know? Wrongful terminations for attorney consultations


Because Ohio employees working without a contract are at-will, an employer does not need a reason—good, bad, or otherwise—for termination. Yet, do you know that an at-will employee who consults with an attorney may find himself or herself protected from termination? Ohio, like most states, prohibits employers from terminating employees in circumstances that jeopardize a clear and well-defined public policy. Ohio courts conclude that an employee’s consultation with an attorney is worthy of such protection.

Chapman v. Adia Servs., Inc., is the most oft cited case in support of this rule:

[W]e hold that it is repugnant to the public policy of this state for employers to terminate employees for exercising their right to consult a lawyer. The courthouse door must be open to the people of Ohio, and it is not ajar when citizens may be fired for entering.

Other cases have extended this protection to employees who threaten to consult with an attorney and to employees who inquire about an employer’s policy regarding employees who sue the employer.

Employers should treat employees who consult with an attorney or threaten to consult with an attorney the same as they would any employee who engages in any other legally protected activity—with care, diligence, and fairness.


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.

Monday, December 6, 2010

BREAKING NEWS: Supreme Court agrees to hear appeal in Dukes v. Wal-Mart


This morning, the Supreme Court agreed to hear the appeal of the class certification of the largest employment discrimination lawsuit ever filed in this country, Dukes v. Wal-Mart. Greg Stohr at Bloomberg News provides details. You can also read my previous thoughts on this historic appeal.

This appeal will not only impact the more than 1.5 million potential class members who seek billions of dollars in damages, but it also has the potential to shape the future of employment class action litigation for years to come. Keep watching this blog for future updates on the landmark Dukes case as it continues to wind its way through the Supreme Court.


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.

Ohio democrats look to go down swinging


In boxing its called a puncher’s chance. As long as you’re on your feet, you always have a chance to knock out the other guy. You might get knocked around for 11 rounds, but as long as you can throw a solid punch in the 12th, you can always win the fight.

This is what the democrats in the Ohio House are trying to do. In last month’s election, the republican tide swept away their control of Ohio’s House. Next month, their half of Ohio’s legislature, along with the Governor’s mansion, will join Ohio’s Senate as republican-controlled. On their way out, the current House majority is going down swinging.

Tomorrow, the Ohio House will hear testimony, and possibly vote, on three long-standing pieces of legislation:

  • HB 470 – which would create a new protected class for people who smoke tobacco. For my prior thoughts on this bill, see Bill seeks to snuff out discrimination against smokers.

  • HB 488 – which would create a new protected class for women who are lactating, in addition to requiring that employers provide lactating employees reasonable, unpaid time each day to permit the expression of breast milk. I’ve also previously written about this legislation. Because of the recent federal mandate for workplace lactation breaks, this legislation is irrelevant.

  • HB 523 – which would create a uniform definition of “employee” in Ohio’s minimum wage, wage payment, and workers’ compensation laws. This statute would broadly define an “employee” as “an individual who performs services for compensation for an employer.” Critically, it presumes anyone who falls under this broad definition is an “employee” and would require the employer to prove otherwise. It also creates a stringent enforcement scheme, which includes a private cause of action, civil penalties, and criminal penalties for misclassifications. Of these three pieces of legislation up for consideration, this is the most significant and has the widest implications for Ohio businesses.

Unlike the weary, late-round boxer, the Ohio democrats have no chance of winning any of these battles. They could win the round by passing one or more these bills, but each would certainly die in the republican-controlled Senate.


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.

Friday, December 3, 2010

WIRTW #155 (the two-drink-maximum edition)


I was not the only one this week commenting on the legal risks of office holiday parties:

If you’re planning on voting for me at the ABA’s Blawg 100, please do so before you indulge too much at your office party and forget to vote at all.

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

Discrimination

Wage & Hour

DOL/ABA Partnership

Social Networking & Technology


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.

Thursday, December 2, 2010

A few thoughts on background checks


The New York Times’s You’re the Boss blog ran a piece yesterday discussing background checks of prospective employees. It focuses on a case study of one company that recently decided to run a background check on every new employee after accepting a conditional job offer. I thought I’d share a few thoughts I took away from the article.

  1. It is not practical or cost-effective to run a background check on every applicant you are considering hiring. Because of information that could be revealed and the risk of a taint of discrimination, it is also not advisable to use a background check as part of the selection process. The best practice is to use background checks like medical exams and drug screens—as a final vetting after a conditional job offer is made. In a perfect world, no employee should be allowed to start working until after the background screen clears, although the needs of a particular business to have an employee start immediately may win out.

  2. The need to screen employees will vary from company to company based on the nature of the business. Not every company will have to screen every employee. If you are not going to screen every employee, though, you should at least screen all employees in the same job. Consistency will eliminate any perception that you are selectively screening candidates based on a protected class.

  3. Businesses should be very careful with the use of publically available information on the Internet (e.g., Google and Facebook) to conduct informal background searches. For one thing, the information is difficult to verify and may not be truthful. Also, an Internet search could reveal protected information—such as an employee’s membership in a cancer survivors’ group—that you, as an employer, do not and should not want to know. Internet searches of job candidates, however, do have value, but should only be used as one part of a background screening protocol, and with measures in place to limit the discovery of protected information.


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.

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