Friday, January 28, 2011

WIRTW #162 (the bad necktie edition)


I am an expat Philadelphian. When the Eagles came to Cleveland in 2004, I wore my Donovan McNabb jersey with pride inside Browns Stadium, and endures the tirades, insults, curses, and the occasional hails of popcorn, peanuts, and beer from loyal Browns fans. But, if the Eagles were playing the Browns in the Superbowl (I know, I know), I would likely draw the line at wearing my gear to the office. It’s not that wouldn’t enjoy jabbing my co-workers (because I would). But, I work in a service-based industry, and the thought of rubbing even one client the wrong way would my hats, jerseys, and ties at home. One Packers fan selling cars in Chicago thought otherwise last week, and it cost him his job when he refused his boss’s repeated requests to remove his Packers tie. The following blogs have the details:

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

Discrimination

Social Media

Workplace Technology

Wage & Hour

Employee Relations and HR

Trade Secrets and Employee 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.

When two worlds collide ... hilarity ensues


Last night, the self-proclaimed world's greatest bosses met for the first time. Michael Scott, meet David Brent:




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, January 27, 2011

Union membership at lowest level in nearly 80 years


The Bureau of Labor Statistics has released its annual report of union membership, and the news isn’t good for organized labor. Unions lost 612,000 members in 2010, dropping the unionized share of the work force from 12.3% to 11.9%. Union membership in the private sector fell from 7.2% to 6.9%, its lowest proportional share since the 1930s. You can read BLS’s summary here, and the full report here.

Employers may read this news as positive. I have a different take. With efforts to bolster organized labor having failed in Congress, today’s pro-union National Labor Relations Board may use these statistics to bolster their efforts to beef up organized labor. I will be very curious to see what these numbers look like after two years of pro-union regulation by the NLRB.

[Hat tip: Labor Relations Today]


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, January 26, 2011

Why you never ask a woman if she’s pregnant


Australian broadcaster Todd Woodbridge thought that tennis star Kim Clijsters was pregnant. His problem, however, was that he did not keep it to himself. Instead, he texted his thoughts to another player. When Clijsters found out, she took the story public, outing Woodbridge’s lack of sensitivity during a post-match television interview.

It remains to be seen if Woodbridge keeps his Aussie TV gig. That Clijsters was so good natured about the crass message may help his cause. Don’t assume, however, that your female employees will be so forgiving.

I don’t know what will happen to Woodbridge’s job, but I can almost guarantee you will lose your discrimination case if a rejected job applicant has a text message asking if she appeared irritable and if her boobs looked bigger. Text messages, social media, and other technology make it much easier to share these types of thoughts. Because of these technologies, he said/she said cases no longer necessarily hinge on credibility debates. Instead, the employee may be holding that text or tweet as a dangerous trump card.


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, January 25, 2011

Join me Friday on the Proactive Employer Podcast


Join me Friday morning as I guest on the one-year anniversary installment of Stephanie Thomas’s Proactive Employer Podcast. Stephanie and I will be talking about ten issues of importance to every employer:

  1. Documentation and document retention
  2. Applications, background checks and new hires
  3. Confidentiality
  4. Technology
  5. EEO: discrimination, harassment, and retaliation
  6. Wage and hour issues
  7. FMLA and benefits
  8. Immigration
  9. Health, safety, and security
  10. Evaluation, discipline, and termination

I’ll provide some suggestions on best practices to identify potential problem areas. Stephanie and I culled these 10 issues from my proprietary 200-point audit of human resources and employment policies and practices. Please join us for a lively and informative discussion that should interest all businesses.

The podcast will be live on blogtalkradio at 8:30 am on Friday, January 28. Blogtalkradio will also archive it for later listening. The podcast will also be available for download on iTunes.


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.

It’s déjà vu all over again—Supreme Court recognizes associational retaliation


In The Gay Science, Friedrich Nietzsche explained his theory of the eternal recurrence—that if the universe is infinitely big, time is eternally long, and everything that exists in that universe is made up of a finite number of elements, then over the course of eternity everything that happens will happen again. For the theory of associational retaliation under Title VII, eternity didn’t even last four years.

In Thompson v. North American Stainless, the 6th Circuit originally recognized the theory of associational retaliation – that 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.

Sometimes, it stinks to be right. In its unanimous opinion [pdf], the Court recognized that certain employees, within the “zone of interests” protected by Title VII, will have a valid claim for associational retaliation:
Title VII’s antiretaliation pro­vision prohibits any employer action that “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” … We think it obvious that a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiancé would be fired…. We … decline to identify a fixed class of relation­ ships for which third-party reprisals are unlawful. We expect that firing a close family member will almost al­ways meet the Burlington standard, and inflicting a milder reprisal on a mere acquaintance will almost never do so, but beyond that we are reluctant to generalize…. 
[W]e conclude that Thompson falls within the zone of interests protected by Title VII. Thompson was an employee of NAS, and the purpose of Title VII is to protect employees from their employers’ unlawful actions. Moreover, accepting the facts as alleged, Thompson is not an accidental victim of the retaliation—collateral damage, so to speak, of the employer’s unlawful act. To the contrary, injuring him was the employer’s intended means of harming Regalado. Hurting him was the unlawful act by which the employer punished her. In those circumstances, we think Thompson well within the zone of interests sought to be protected by Title VII.
What does all this mean?
  1. This supposed pro-business Court continues to be decidedly anti-business when it comes to protecting employees from retaliation, and even the most conservative members of this Court are open to expanding civil rights when it satisfies a policy they consider important.
  2. Employers are now subject to retaliation for taking an adverse action against anyone “closely related” to an employee who engaged in protect activity.
  3. To claim associational retaliation, the aggrieved employee must prove that the employer intended to injure the associated employee by its action against the aggrieved employee.
For employers, there are no bright-line rules for associational retaliation. The real import of this decision is the same as when the 6th Circuit first recognized this new theory of liability nearly four years ago. As I said at that time:
If Title VII protects those "who are so closely related to or associated" with employees who engage in protected activity, it simply begs the question, 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? 
These questions, none of which the Thompson court answers, could hamstring employers from making any employment decisions for fear of doing something against someone who has some relationship to someone else who complained about something last October. The implications of this case have the potential to reach that level of silliness. The best course of action is still to make legitimate personnel decisions for bona fide business reasons and let the chips fall where they may.

Monday, January 24, 2011

An obituary for our dog


Employment law takes a break today because yesterday we put Zoey to sleep. She was born on January 26, 2005, the largest in a litter of seven. It never took long for her to convince anyone that met her that 79 of her 80 pounds was heart. She was a lover of all people and all things. Nothing in this world mattered more to her than the four people she shared her home with (except, maybe, for the occasional rabbit she chased in the backyard).

Zoey was our first child. She was our not-sure-if-we’re-going-to-have-kids-let’s-get-a-dog. I slept on the floor next to her crate for her first few nights in our home, until she became accustomed to being away from her litter. She never again doubted us because she knew she was home.

I beamed with pride when I taught her to swim as a puppy. I laughed when she would relentlessly lick the top of my bald head. I was awestruck when she placed her head on my wife’s lap during tear-inducing labor pains before the birth of our first child. I felt badly for her when she got bumped down the ladder with the birth of each of our children. I was grateful when she protected our kids as if they were own, and I loved her every time she checked on them when they cried or were ill.

I will miss her tail wagging whenever anyone would pet her. I will miss her jumping up and down when someone new came to the door. I will miss her sprinting into the kitchen and begging for an ice cube whenever she heard the freezer door opening. I will miss seeing her waiting by the front window in the study as I drove up to the house, and how she was always the first one to greet me when I came home from work every night. I will even miss her shedding, which often made our floor resemble an unkempt barbershop. I will miss her.

Last summer she tore her right rear ACL while playing. Post-surgery, I again slept nearby as she whimpered with pain. While the ACL healed, her leg never really did. She walked with limp, and aged dramatically, looking and acting much older than her nearly six years of life suggested.

December gave us yet another scare, as the anti-inflammatory medications she was taking for her leg ulcerated her intestine, causing a whole bunch of new problems. My wife nursed her child back to health.

Yet, we knew, deep down, that Zoey was living on borrowed time. The vet told us the odds – that more than half of dogs who tear an ACL will tear the other within a year. We hoped that Zoey would buck the odds, but I think we knew that she likely wouldn’t.

When she gimped into the house Saturday evening with what had been her good leg trembling high in the air, in too much pain to put any weight on it, and what had been her bad leg too weak to support her large frame, we knew it was time. Saturday night, she licked my head for the last time.

Zoey was not only a great dog; she was a beloved member of our family. I hope she finally catches that rabbit in heaven.

zoey

Friday, January 21, 2011

WIRTW #161 (the “To infinity, and beyond!” edition)


via Wikimedia CommonsEach week, there’s a story or two that slips through the cracks that I just can’t get to. This week is no exception. Earlier this week, the U.S. Supreme Court upheld the constitutionality of NASA’s employment background check policies. For more information on this case, I recommend the following summaries and opinions of my fellow bloggers:

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

Workplace Technology

Social Media

Employee Relations & HR

Discrimination

Wage & Hour

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, January 20, 2011

Ohio just became a friendlier state for age discrimination plaintiffs


In Gross v. FBL Financial Servs., the U.S. Supreme Court concluded that mixed-motives do not exist in federal age discrimination claims, and for a plaintiff to succeed on an disparate treatment claim under the ADEA, he or she must prove that age was the “but-for” (that is, the only) cause of the challenged adverse employment action.

An open question left in the wake of Gross was whether state courts such as Ohio would follow Gross under parallel state court age discrimination statutes. Thomas v. Columbia Sussex Corp. (Ohio Ct. App. 1/6/11) [pdf] provided our first Ohio answer. It concluded that Gross does not apply under Ohio’s age discrimination statute. While the opinion somewhat muddles its discussion of Gross, the court approved what amounted to a mixed-motive jury instruction given to the jury. Therefore, mixed-motive age claims are alive and well under Ohio age discrimination statute, and the effect of Gross is limited to cases brought under the federal ADEA.

For employers, this opinion is not quite as bad as it seems. Yes, it will likely result in more plaintiffs eschewing a federal venue and filing their age claims under Ohio law, and in Ohio courts with state court juries. Ohio’s age discrimination statute, however, has a short six-month statute of limitations, as compared to 300 days one has to file an age claim with the EEOC to perfect one’s right to file a lawsuit under the federal statute. Because employees have a easier burden of proof under Ohio law, they will have to elect the shortened filing period. Employees who miss the initial six months will have to go the federal route, with its tightened burden of proof under Gross.

For businesses, the advice I gave after Gross holds true regardless of the burden of proof. Employers should meticulously document employees’ performance problems and other disciplinary action. A contemporaneously well-documented personnel file makes it that much more difficult for a plaintiff to prove that age was the motivating reason behind the termination or other adverse action.

Wednesday, January 19, 2011

Lessons from Children’s Lit, part 3: Knuffle Bunny


Lately, my son and I have been reading Mo WillemsKnuffle Bunny, a lot.

Knuffle Bunny tells the story of Trixie, who loses her stuffed bunny (and prized possession) during a trip to the laundromat with her Daddy. When she discovers her loss, she tries to tell her Daddy, but he does not understand her baby babble. When Mommy catches on, the family rushes back to the laundromat to find Knuffle Bunny. I don’t want to spoil the end for anyone, but suffice it to say that when we finish the book, my little guy looks up at me as says, “She’s so happy.”

What lessons can employers take away from this “cautionary tale”?
  1. There are no hard and fast rules about how employees must complain about harassment or discrimination. Trixie, who had not yet learned to speak, did the best she could to communicate to her Daddy that Knuffle Bunny was missing. The fact that he did not understand her did not change his fatherly responsibility to help locate Knuffle Bunny. The same holds true for employers. In a perfect world, employees would lodge complaints in typed memos, dutifully turned into designated persons in the HR department. Our world, however, is far from perfect. Employees email, text, leave voice mails, scribble hand-written notes, make off-handed comments, and even say nothing at all. Regardless of how a manager or supervisor learns about harassment or discrimination, the rules are the same—investigate, remedy, and don’t retaliate.

  2. Leave no stone unturned. When Trixie’s family first returned to the laundromat, they could not find Knuffle Bunny. It was not until Trixie’s Daddy redoubled his efforts that he found it. The same holds true for employers’ investigations. A half-assed investigation is no better than no investigation at all. If a document is missing, you better be able to convince a court that you took all reasonable efforts to locate it. If you conclude that an employee’s harassment complaint is unfounded, you better be sure you interviewed everyone identified as a potential witness. If you are going to discipline or terminate an employee, you better double check that you considered all documents and witnesses before reaching a conclusion. Courts are loath to second-guess employers’ business judgment, but will not hesitate if it appears an employer slacked in its investigatory responsibilities.

Tuesday, January 18, 2011

For legal compliance, don’t jump off the bridge


When I was a child, whenever I wanted to do something popular that my parents disapproved of, they would caution me, “If everyone else jumped off a bridge, would you jump too?” I hated when they said that. Yet, now that I am a parent, I find myself saying the same thing to my kids. Today, I am also going to say it to my readers.

Just because a particular employment practice is popular or widespread does not mean it’s legal. There are lots of practices in use at lots of companies that do not pass legal muster:

This list could go on and on. The point is that popular employment practices aren’t necessarily legal employment practices. You should not rely on the company-next-door for your legal compliance. Instead, invest a few dollars in a comprehensive review by a qualified attorney. Heck, some of us will even get started for free.

[Hat tip: Wage and Hour Laws]


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, January 17, 2011

MLK Day calls for reflection about how far race relations have come, and how far we have left to go


Today celebrates the life and message of one of our nation’s most important heroes, Martin Luther King, Jr. His remembrance suggests that we consider not only how far our race relations have come in the last half-century, but also how far we have left to go. 

To reflect upon how far we have come, consider MLK’s famous “I Have a Dream” speech, one of the greatest and most significant pieces of oration ever delivered:

To consider how far we have left to go, you need only review a few posts from my archives, each of which illustrates that bigotry still pervades our workplaces and our 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.

Friday, January 14, 2011

WIRTW #160 (the bad economy = good EEOC numbers edition)


Earlier this week, the EEOC released its FY 2010 charge filing statistics, which, to no surprise, reveal that in a bad economy employees file more claims. I’m leaving any additional recap and analysis to my blogging brethren who have already covered this story:

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

Discrimination

Social Media & Workplace Technology

HR & Employee Relations

Wage & Hour

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, January 13, 2011

DOL’s “Right to Know,” or right to sue?


This April, the Department of Labor intends to publish a proposed rule updating the Fair Labor Standards Act’s recordkeeping regulations. The DOL refers to this program as “Right to Know.” The stated goals for these regulations include strengthening protections for workers by protecting their entitlement to earned wages, bringing greater transparency and openness to the workplace, and increasing wage and hour compliance. According to the DOL, the proposed rule will likely:

  • Require the notification of workers’ status as employees or independent contractors.
  • Require that any employers that seek to exclude workers from the FLSA’s coverage perform a classification analysis, disclose that analysis to the worker, and retain that analysis to give to DOL enforcement personnel on request.
  • Require that employers provide a wage statement, including hours worked and a wage computation, each pay period to each employee.

The subtext of these regulations, however, is frightening. The DOL is pursuing an aggressive agenda of wage and hour compliance for low wage workers. While it has swelled its ranks with the hiring of 250 new investigators, it still lacks the budget and manpower to locate or remedy every wage and hour violation in every business. These “Right to Know” regulations will informally deputize every employee, transforming our nation’s workforce into a nation of DOL investigators. Do you still think you can afford to put off that wage and hour audit?


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, January 12, 2011

Employees aren’t the only ones who have to watch what they post: Social media as retaliation


If you do a search of my archives you’ll find a slew of posts about employees whose posts on social media sites came back to bite them—either in recruiting, terminations, or litigation. A story in yesterday’s Pittsburgh Tribune-Review illustrates that employers are also at risk for the reckless use of social media. The article discusses an EEOC complaint alleging that a manager used the company’s Facebook page to post threatening messages in retaliation for a prior harassment complaint.

It is becoming increasingly clear that communication is communication, whether spoken, in writing, in a email, in a text message, or posted on a social media website such as Facebook. Fairly consistently, courts are ignoring the vessel used to communicate the message. If a message is retaliatory, it will be treated the same, whether told to an employee or posted on a Facebook page.

Other than retaliation, what are some of the other legal risks should employers be aware of concerning social media?

  • Harassment
  • Defamation
  • Disclosure of confidential or proprietary information
  • Commentary on on-going litigation

How can employers guard against these risks? Proactive training. Businesses that fail to properly train all employees about the risks of the reckless use of social media are acting recklessly themselves.


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, January 11, 2011

Announcing KJK’s Next Employment Law Breakfast Briefing: Managing Employee Medical Issues Under the ADA


You are invited join KJK’s employment lawyers for our next Breakfast Briefing: Managing Employee Medical Issues Under the Amended Americans With Disabilities Act.

Perhaps no issue confounds and confuses employers more than employee medical issues. The 2009 amendments to the Americans With Disabilities Act have only served to complicate matters for businesses. Now, the ADA covers most employees with medical issues. As a result, it is incumbent upon employers to stay up to date on their obligations to accommodate this unique class of employees. Join KJK’s employment lawyers for a free breakfast to discuss the following issues and learn how to proactively avoid ADA claims from increasingly litigious workforces:

  1. What qualifies as a “disability” under the current ADA?
  2. What are employers’ obligations to reasonably accommodate disabled employees?
  3. How does the ADA interact with the other key laws that concern employee medical issues: the FMLA and workers’ compensation laws?
  4. What does it mean to “regard” an employee as disabled, and why is this subset of the ADA so dangerous?

Date: Tuesday, April 12, 2011

Time: 8:00-8:30 Continental Breakfast / 8:30-9:30 Presentation / 9:30-10:00 Q&As

Place: The Club at Key Center, 127 Public Square, Cleveland

Cost: Free (including parking)

If you are interested in attending this free seminar, or for more information, please contact Andrea Hill, (216) 736-7234 or ach@kjk.com, by April 7, 2011.


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.

Rash action could lead to false conclusions in dealing with employee problems


The mall was packed Saturday afternoon. The fact that we had a few inches of snow on the ground did not help the parking situation. I drove around for more than 10 minutes looking for a close parking space so the cold walk wouldn’t impact my two-year-old son’s asthma. I finally eyed a great spot, only to have it stolen by a woman who ignored my turn signal while she zoomed up the aisle the wrong way. I’d normally curse loudly from the safety of my car and move on, but on that day I took a stand. I parked behind her car, waited for her to get out, rolled down my window, and confronted her over her lack of parking lot etiquette. Surprisingly, she apologized, asked me to pull forward so she could back out, and surrendered the assholespot. We exchanged courtesies and went about our ways. When I came out from the mall, I found a note tucked under my wiper blade. It read, “ASSHOLE.” I can only assume that the note was left by someone in the line of traffic behind me who, not having witnessed the entire transaction, assumed that I had stolen their space.

There is a good lesson in this story for employers. Don’t act rashly when dealing with employee complaints or problems. Employers should only take action after a full investigation into all of the facts and circumstances. When an employee complains about something, you only are getting half of the story (at best). If you act based on that half, you are jumping to a conclusion, the correctness of which might as well be a coin flip. You cannot have any confidence in the ultimate conclusion until you conduct a complete and unbiased investigation, which includes interviewing all witnesses, reviewing all documents, and considering all versions of events.

There was an asshole in the parking lot on Saturday, but it wasn’t me. It was the person who left the note without knowing how I ended up taking that spot. Don’t make the same mistake and shortchange your employees by jumping to rash decisions and failing in your duty to fully and completely investigate all employee complaints.


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, January 10, 2011

Unstable employees, direct threats, and the ADA


I opened my email this morning to find the following question from fellow blogger The Evil HR Lady:

As you probably know, I’m an avid reader, even though I’ve never lived in Ohio, although I have been to two weddings there, so that must count for something.

I've been reading about Jared Lee Loughner--the Arizona shooter and came across the e-mails written by a class member who thought Loughner was dangerous here: http://voices.washingtonpost.com/44/2011/01/jared-loughners-behavior-recor.html?hpid=topnews

My question for you, the employment lawyer, is given ADA protections, if I notice an employee becoming increasingly unstable, what can I do about it?

I’d love to read your thoughts on this.

Instead of responding directly, I thought I’d share my thoughts with everyone.

The ADA contains a specific exception for employees who pose a “direct threat.” The statute defines “direct threat” as “a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation.” The ADA’s regulations require that the determination that an individual poses a direct threat must be “based on an individualized assessment of the individual’s present ability to safely perform the essential functions of the job.” Employers must base this assessment on either “a reasonable medical judgment that relies on the most current medical knowledge” or “on the best available objective evidence.” In making this determination, employers should rely on the following four factors:

  1. The duration of the risk;
  2. The nature and severity of the potential harm;
  3. The likelihood that the potential harm will occur; and
  4. The imminence of the potential harm.

Palmer v. Circuit Court of Cook County (7th Cir. 1997) succinctly explains the Hobson’s choice employers face when deciding whether to retain a potentially violent employee. Since I can’t say it any better, I’ll just quote from the opinion:

The [ADA] does not require an employer to retain a potentially violent employee. Such a requirement would place the employer on a razor’s edge—in jeopardy of violating the Act if it fired such an employee, yet in jeopardy of being deemed negligent if it retained him and he hurt someone. The Act protects only “qualified” employees, that is, employees qualified to do the job for which they were hired; and threatening other employees disqualifies one….

It is true that an employer has a statutory duty to make a “reasonable accommodation” to an employee’s disability, that is, an adjustment in working conditions to enable the employee to overcome his disability, if the employer can do this without “undue hardship.” … But we cannot believe that this duty runs in favor of employees who commit or threaten to commit violent acts…. The retention of such an employee would cause justifiable anxiety to coworkers and supervisors. It would be unreasonable to demand of the employer either that it force its employees to put up with this or that it station guards to prevent the mentally disturbed employee from getting out of hand.

To sum up and answer the question posed, employers faced with a legitimate and potentially dangerous employee need not wait for the powder keg to explode. Instead, employers can treat the employee as a “direct threat” and separate the individual from employment.

A few additional practical points to consider:

  1. Prior to the termination, obtain written statements from co-workers, supervisors, and managers documenting all threatening behavior.

  2. The severity of threat is proportional to the duration of the risk. In other words, the more real the risk the less amount of time you have to allow it in your workplace.

  3. Typically, I’m opposed to security escorts of terminated employees. The termination of an employee who poses a direct threat for violence is the exception.

  4. Consider carrying out the termination as late in the work day, and work week, as possible. This timing will create and artificial cooling-off period and help limit the risk that the employee returns to do harm.

  5. Put the local police department on notice. Also consider a private security detail for a period of time until you are reasonably certain the employee is not going to return to cause harm.

Finally, my thought and prayers are with everyone in Tucson as they mourn, fight for their lives, cope with what happened, and start the healing process.

Friday, January 7, 2011

WIRTW #159 (the welcome to the party edition)


While it gets harder each week to keep up with the goings-on in the blogosphere, I’m always happy to welcome another to the table. This week, Philadelphia attorney Eric Meyer launched The Employer Handbook, which he promises will provide “clear and concise summaries of the employment-law landscape in PA, NJ and DE.” Eric, welcome, I look forward to reading and sharing links on future Fridays.

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

2011 Predictions & Thoughts

HR & Employee Relations

Social Media & Technology

Discrimination

Wage & Hour

Trade Secrets & Employee Competition


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, January 6, 2011

Federal court takes on the word “n***er” in a reverse race discrimination case


417T65SZB6L._OU01_AA240_SH20_ The n-word has been discussed a lot in the media this week, with the announced sanitization of Huckleberry Finn. (Are Roots and To Kill a Mockingbird next? But I digress.) In Burlington v. News Corp. (12/28/10), a Philadelphia federal judge has ordered that a jury must decide whether it is acceptable for a black employee, but not a white employee, to use that word in the workplace. The opinion also contains a lengthy narrative (excerpted below) discussing the larger implications of the differential use of the word between white America and black America.

This case involves the firing of a white television news anchor over his non-pejorative, context-appropriate, use of the n-word during a newsroom meeting. Thomas Burlington, who is white, claims race discrimination because the station did not discipline, let alone fire, three black employees who used the same word in similar meetings in similar contexts. The court agreed that Burlington’s different treatment justifies a jury trial on the issue:

Plaintiff’s use of the word elicited a severely negative reaction, brought the meeting to a close before he could explain himself, and was followed by his immediate suspension, while Jervay’s use of the word elicited only Defendants’ defense of his actions. Plaintiff is white. Jervay is African American. Management’s inability to explain why Jervay was allowed to use the word while Plaintiff was not permits the inference that their races influenced the decision, and that a similarly situated African American employee was treated more favorably than Plaintiff under similar circumstances.

The court also took on society’s conventional use of the controversial word:

Justice Holmes observed that “[a] word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used.” This is certainly so with this particular word. Merriam-Webster notes in the usage section of its definition of the word that “[i]ts use by and among blacks is not always intended or taken as offensive, but … it is otherwise a word expressive of racial hatred and bigotry.” … Professor Kennedy, an African American, made the observation that

many people, white and black alike, disapprove of a white person saying “nigger” under virtually any circumstance. “When we call each other ‘nigger’ it means no harm,” [rapper] Ice Cube remarks. “But if a white person uses it, it’s something different, it's a racist word.” Professor Michael Eric Dyson likewise asserts that whites must know and stay in their racial place when it comes to saying “nigger.” He writes that “most white folk attracted to black culture know better than to cross a line drawn in the sand of racial history. Nigger has never been cool when spit from white lips.” …

When viewed in its historical context, one can see how people in general, and African Americans in particular, might react differently when a white person uses the word than if an African American uses it.

Nevertheless, we are unable to conclude that this is a justifiable reason for permitting the Station to draw race-based distinctions between employees. It is no answer to say that we are interpreting Title VII in accord with prevailing social norms. Title VII was enacted to counter social norms that supported widespread discrimination against African Americans…. To conclude that the Station may act in accordance with the social norm that it is permissible for African Americans to use the word but not whites would require a determination that this is a “good” race-based social norm that justifies a departure from the text of Title VII.

The n-word is one of the English language’s most volatile words. Few others spark as much debate or as much rancor. We should all be able to agree that it has no place in the workplace. Yet, as this case illustrates, Title VII does not allow for double standards. If you intend to punish its use by white employees, you cannot condone its use by black employees.

Wednesday, January 5, 2011

I swore I wasn’t going to write about Brett Favre; then he got sued


533262601_e5c9493d2c_m Earlier this week, two former employees of the New York Jets sued their former employer and Brett Favre for sexual harassment. The message therapists allege that Favre made unwanted sexual advances during his tenure with the Jets in 2008. The lawsuit comes on the heels on the NFL’s fine against Favre for not cooperating with its investigation of similar allegations made by former Jets television host Jenn Sterger. Because others have covered the issues of the dangers of text messaging in harassment prevention and litigation (Philip Miles’s Lawffice Space, for one), I have a different take on this story.

The timing of the lawsuit—on the heals of the NFL’s closure of the Sterger investigation and its $50,000 fine of Favre—is more than suspicious. In their complaint, the plaintiffs try to explain the nearly 2½ year gap between the alleged harassment and the lawsuit:

   30. The plaintiffs have refrained from filing suit in the misguided hope that the NFL would take some meaningful action against defendant Favre for his improper behavior with Ms. Scavo, Ms. Sterger and others.

   31. Unfortunately, instead of taking any meaningful action, the NFL, after an alleged extensive investigation, which according to the media used former FBI agents and other extensive resources, provided no meaningful report, made no findings, waited until the regular football season was basically over and Favre was retiring from football and then reached the inexplicable and rather shocking conclusion that Favre did not violate any league policies regarding conduct in the workplace but rather merely failed to cooperate.

   32. The NFL imposed what is a relatively meaningless fine of $50,000 after probably spending a hundred times that amount on its alleged investigation and public relations attempt to derail any inquiry which would determine what occurred and to institute procedures to prevent the type of behavior Favre was accused of in the future.

   33. Since the NFL took no action, the plaintiffs had no choice but to commence their own legal action to be permitted to work in their chosen profession without being harassed, to recover the damages they had suffered and hopefully, maybe someday, to deter players in the NFL from acting inappropriately with other women who are required to come into contact with football players within the scope of their work and to encourage other women who are harassed by professional athletes in the workplace to come forward without fear of retribution.

I have no idea whether Favre propositioned the plaintiffs for a three-way encounter, just like I have no idea whether the pictures of Favre’s maleness that have surfaced online are genuine. The truth lies somewhere in between the allegations and the text messages. But, it certainly doesn’t help the plaintiffs’ cause that, according to Good Morning America, they refused to cooperate with an earlier NFL investigation concerning “media reports that Favre had made passes at two massage therapists who worked for the New York Jets.” It also doesn’t help their cause that their lawsuit looks like a money grab, piggy backing off the high publicity Jenn Sterger investigation.

I am not arguing that a gap of years between harassment and a lawsuit means that the harassment did not happen. I am, however, questioning the motives of the individuals bringing it to light via a lawsuit 2½ years later. Ultimately it will be up to a jury to determine the extent to which the timing undermines the plaintiffs’ credibility. It would be a shame if that timing ends up clouding the truth.

(Photo by Lisa Yarost, available on Flickr)


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, January 4, 2011

2011: A Rehiring Odyssey


According to CNN, 2011 is going to be the year that American businesses start hiring again:

After three years of economic pain, a growing number of economists think 2011 will finally bring what everyone's been hoping for: More jobs and a self-sustaining recovery.... [E]conomists forecast between 2.5 million and 3 million jobs being added to U.S. payrolls in 2011, about triple the gains likely to be recorded in 2010 and what would be the best one-year jump since the white hot labor market of 1999.

If your business is planning to contribute to these 3 million new jobs, here are some issues for you to think about as you locate and hire the best available candidates to rebuild your workforce:

        There is no magic wand that you can wave to hire the most qualified and productive workforce. How you answer these questions, however, will help ensure that the process you use in restocking your workforce exposes you to the least amount of legal risk.


        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, January 3, 2011

        My New Year's resolution is... Patience


        According to the Williston Herald, the ancient Babylonians made the first New Year's resolution more than 4,000 years ago. They believed that one should spend the first day of the new year "reflecting on personal past errors and planning to resolve them to improve the self during the following year." After spending the last 11 days with my kids (who I love dearly), I decided that my resolution for the new year would be patience. In the spirit of my own path to self-improvement, I thought I'd share a few thoughts on how employers can be more patient, and, in the process, improve relations with their employees and limit the risk of lawsuits.
        1. Patience with the chronic complainer. Every workplace has that employee -- the one who, at the drop of hat, lodges a complaint about something. It might be a co-worker, it might be a boss, it might be the quality of the free coffee, or it might be the thermostat setting. Employers should exercise caution with this employee. A drop of patience might avoid the retaliation lawsuit when the chronic complaint turns into protected activity.
        2. Patience with the habitually absent. Most workplaces have rules about absences. I've counseled enough employers to know that most take those rules very seriously. An employee who is habitually absent, however, might not be irresponsible. He or she might be dealing with a medial issue that is causing the absenteeism or tardiness. A modicum of patience with this employee might avoid the creating of an FMLA or ADA quagmire.
        3. Patience with wage and hour laws. Anyone who reads my blog regularly knows that I take wage and hour compliance very seriously. I am reasonably confident that I could walk into any business in America and uncover at least one wage and hour violation. The laws are simply too complex for any employer to execute them perfectly, at least without careful and constant guidance from an experienced practitioner. A little patience in the area of wage and hour compliance, however, will go a long to way to avoiding a costly DOL audit or class action lawsuit.
        4. Patience. Two years ago, I wrote about what I call the Golden Rule of Employee Relations: "If you treat your employees as you would want to treated (or as you would want your wife, kids, parents, etc. to be treated), most employment cases would never be filed, and most that are filed would end in the employer's favor." I think if we try to be a little more patient in all situations, we would face less strife and fewer lawsuits.
        Happy New Year everyone. What's your resolution?

        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.