Showing posts with label best of.... Show all posts
Showing posts with label best of.... Show all posts

Monday, April 11, 2022

Why I’m anti-union

“Jon, why are you anti-union?”

I’ve received this question a lot lately. Between all of my posts about the need for all employers (including craft breweries) to pay attention to the recent wave of union organizing, and my philosophy of workplace management that focuses on positive culture and positive treatment of workers, many have asked why I oppose labor unions.

Let me explain.

Thursday, December 17, 2015

What Star Wars teaches us about employee relations #TheForceAwakens

My earliest cinematic memories involve Star Wars.

I don’t really remember seeing A New Hope in the theater (I was only 4 years old), but I know I did. I vividly remember watching The Empire Strikes Back with my dad at the Nashaminy Mall. The theater was packed, we were stuck behind two towering men, and I watched with my head peaking between their seats. That’s where my jaw hit the floor when Vader proclaimed that he was Luke’s father. And, with my fandom at a crescendo, I remember my parents pulling me out of school on opening day of Return of the Jedi so that we could wait in line to ensure our seats.

Thank god for Fandango, because Donovan, with his now one-tracked Star Wars mind, and I can see The Force Awakens without disrupting his schooling. Saturday afternoon, I will experience the pure joy of introducing my son to a new Star Wars movie.

The premier of Episode VII has got me thinking, what can Star Wars teach us about employment law?

Monday, September 15, 2014

Cutetallica — 4 lessons in talent management

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

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



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

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

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

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

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

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

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

Wednesday, June 11, 2014

A rock-and-roll employment lesson, via the Old 97’s

Last Thursday night, I took my daughter to see the Old 97’s. By way of backstory, Norah performed an Old 97’s song, The New Kid, during her first concert for School of Rock back in January. I tweeted the link to the video to the band’s lead singer, Rhett Miller, who was kind enough (and cool enough) to tweet back, as was the band, who called Norah “badass.” The band was also nice enough to share the video on their Facebook page.

Thanks to a kind gesture from a good friend, Norah and I got to go backstage before the show to meet Rhett. He remembered Norah’s performance from YouTube, they talked about school and his 8-year-old daughter, he told her to call him when she gets her first paying gig, and he posed for some pictures.

The downside of going backstage before a SRO show, however, is that we lost our front-of-stage spot. The upside of going to a concert with an 8-year-old is that she can wiggle her way back through the crowd, and I get to say, “Excuse me, I can’t lose my kid.” Norah found her way back to the front of the stage, right in front of guitarist Ken Bethea, and managed to sit on the stage for the entire concert.

Being that close, I could see the setlist taped to the stage. It certainly appeared to me that the band changed their set mid-show to add The New Kid. Before the song, Rhett talked about Norah and her YouTube video, and called her “a cool kid”. And all these people around us start saying to Norah, “Oh my god! You’re the girl from YouTube. You rock!” Knowing her, I’m surprised she didn’t stand up and take a bow.

During Big Brown Eyes, Rhett appeared to look right a Norah, and, with a big smile, sang the line, “You made a big impression for a girl of your size.”

Rhett name checked Norah again while apologizing to her for the swearing during the show (sorry, video NSFW).

At the end of the show, Rhett walked up to Norah and said, “Norah, this is for you,” and handed her his pick. She was beaming.

It was a magical night for Norah, and I am so happy I got to share it with her. BTW, the band is great live, and if they are in your area, this summer or any other time, you should definitely check them out.

Employers, here’s your homework assignment. Create some magic for your employees. Rhett could have said no when someone asked if we could come backstage, but he didn’t. He didn’t have to change their setlist to add a song, but he did. In fact, he didn’t have to do anything to make Norah feel special, but he did—more than most in his situation would have—and he nurtured a fan for life.

You can (and should) do the same for your employees. And you don’t need big, expensive gestures. The small things count. Here are a few ideas to engage your employees, demonstrate your appreciation of them, and keep them content and engaged:

  • Ask peers to nominate and vote for an employee of the month, whom you recognize with a plaque and gift certificate to a local restaurant.
  • Start a staff-appreciation program, in which employees earn points for behavior you want to incent (such as attendance or punctuality), and can trade in those points for rewards (such as an extra vacation day).
  • Randomly provide longer lunch breaks, in recognition of jobs well done.
  • Circulate department or company-wide emails to praise employees when they have successfully completed a project or otherwise done something worthy of recognition.
  • And, the easiest one of all, pay praise forward. If one employee says something nice about another, make sure the recipient knows about it, as soon as possible.


Monday, January 20, 2014

Stand by your employees: an ode to Norah and the Troopers

For the past nine months, my daughter has been taking guitar lessons at School of Rock in Strongsville. This past fall, we upped her from private lessons to the performance program, which, for the beginning students, is known as Rock 101. Her band started with four other kids, but quickly dwindled to just Norah, as the others bailed for various reasons. With a band of only one, the school initially suggested canceling the program for this session. Knowing my daughter, and believing both that she’d want to continue and would be comfortable even as the only child in the band, I asked that the show go on. And it did. And, what a show she gave this past weekend. Here are the results of her hard work.

I have some people to thank, and then I’ll get to the lesson of today’s post (so you don’t think I’m just using this space to shamelessly brag about the awesomeness of my 7-year-old daughter, playing to a standing-room-only house — and, yes, she was tears-to-my-eyes awesome). Thanks to John Koury, the GM of the Strongsville School of Rock, and Shelley Norehad, the school’s owner, for letting Norah do her thing, all by herself, and not cancelling the program as her band mates dropped out. Thank you also to Norah’s amazing guitar teacher, Ed Sotelo. And, finally, thank you Norah’s band: Kayleigh Hyland (bass, keys, and backing vocals, and also the Rock 101 director), Donald Pelc (guitar), and Dominic Velioniskis (drums).

Here’s the takeaway for employers. Stick with your employees, especially in times of difficulty and adversity. They might just surprise you, and may even do something amazing. It would have been very easy for School of Rock to decide that they couldn’t make money on a program of one, and tell us that Norah would have to wait until the Spring for her first Rock 101 experience. Instead, they embraced the enthusiasm and work ethic of a 7-year-old girl and let the show go on. As a result, they allowed her to walk off the stage with a club full of strangers chanting her name. (Contact me for booking info).

Thursday, January 2, 2014

Lessons from children’s lit: A New Year’s resolution

Among the toys and the clothes, my kids always receive books for Christmas. This year, the books included The Day the Crayons Quit. This book tells the story of a boy’s box of crayons, and the colors inside that have quit their jobs, each for a different reason. Blue no longer wants to be known just for bodies of water. Black is tired of outlining objects to be filled in by other colors. Yellow and Orange are no longer speaking to each other, each believing it is the true color of the sun. And Beige, his wrapper having been peeled off, is too embarrassed to exit the box naked. It’s a very clever book, and the sounds of both my kids cackling during it’s telling is their gift to me.

The lesson to draw from this story is important for all employers to take to heart. Employees are unique. Each has his or her own personality, needs, and wants. For this reason, an employer cannot treat all employees the same. To appease Black by re-wrapping it will not address its concern of only being used for outlining, and by using Beige to fill in the ocean will not fix its fear of being naked. Similarly, your employee-mother-of-two is going to value flexibility and work-life-balance a whole lot more than a 22-year-old employee fresh out of college.

This year resolve to learn what makes each of your employees unique. Resolve not to treat your employees as fungible commodities, but as special assets, each with his of her own talents and concerns. Recognizing each employee’s individuality will result in a more engaged workforce, which, in turn, will repay you with happier, more productive, and more loyal employees.

Tuesday, November 12, 2013

SpongeBob SquarePants, employment law professor

On a cold, snowy night in the suburbs of Cleveland, what is there to do besides snuggle on the couch with your 5-year-old son to watch the world premier of SpongeBob, You’re Fired? That’s exactly what Donovan and I did last night.

Who knew that such high art would provide the inspiration for today’s post?

The story begins with Mr. Krabs firing SpongeBob from his fry-cook job at The Krusty Krab to save a whole five cents by not paying his wage. Minimum wage be damned, SpongeBob offers to work for free to keep his job. Amazingly, the historically cheap Krabs turns him down, telling SpongeBob that he already looked into it, and it’s illegal to let employees work for free.

Bravo to Eugene Krabs for bringing the plight of the unpaid intern to the forefront of pop culture. Unless you meet the very limited test for an unpaid intern, if you have employees, you must pay them. Employees are not allowed to volunteer their time or work for free.

Wednesday, June 16, 2010

The art of the apology

Those who’ve been reading for awhile know that I grew up in Philadelphia. I am a proud survivor of the Philadelphia public school system. When I was in 11th grade at George Washington High School, I awoke one winter morning to find 9 inches of snow and ice covering the roads and sidewalks. Anyone who has any experience with any large metropolitan school district knows that they are as likely to close for weather as France is to win a modern war. So, it was no surprise that schools were open for business that morning.

I was none too happy about having to trudge the mile to school, but my parents both taught in the district, and if they had to go to work, I had to go to school. My dad, though, had what appeared to be a brilliant idea. “Why don’t you call the superintendent and let her know your feelings about school being open?” (In retrospect, maybe he was having me do his dirty work for him.) So, I got the White Pages out of the hall closet (no Internet in 1989) and found the number for the office of the superintendent. It being 6:30 in the morning, all I got was her answering machine. Here’s the message I left:
My name is Jonathan Hyman and I am a junior at George Washington High School. I was not happy to learn that schools were open this morning. Busses aren’t running, and the roads are slippery and dangerous. I do not feel that it is safe to go to school. If I get to school and find that none of my teachers are there, I am going to be very pissed off.
Direct, but innocuous enough, I thought. Which is why I was somewhat surprised when the principal pulled me out of my 4th period health class for me to talk to someone from the superintendent’s office demanding justice for my obscenities. I assured the principal that I had not used any obscenities, but one man’s “pissed off” is another’s f-bomb, I suppose. After a rational conversation (from my end), the superintendent’s representative bottom-lined it for me—I could either apologize or face expulsion. I did not think being expelled from school would bode well for my future, so I apologized. The irony of the whole situation was that when I called to apologize, I again got the superintendent’s answering machine. When I finally met her the following year at the seniors’ honors banquet, I was pretty sure she had no idea who I was or what had happened the prior winter.

What, you may be asking yourselves, does this story from my youth have to do with employment law? It’s as simple as this. Sometimes, all someone wants to resolve a problem is an apology. It's easy to dig your heals in and fight, especially when you are being accused of something as insidious as discrimination. Those fights will cost you hundreds of thousands of dollars in legal fees. Most times, those fights are necessary. Sometimes, though, a simple apology will suffice to restore the status quo. 21 years ago, the future lawyer in me felt that my 1st amendment rights were being trampled. But, it was not worth vindicating those rights if it put my chances at college admission in jeopardy. The next time you are dealing with a sensitive situation with an employee, before shifting into battle mode stop and ask yourself whether a sincere apology will solve the problem. It may be one of the hardest, and best, decisions you will ever make.

Monday, June 14, 2010

Empathy does not require liability

This morning, Judy Greenwald at Business Insurance has an article discussing the recent spate of anti-bullying laws making the rounds in various state legislatures. Over at Minding the Workplace, David Yamada, founder and president of the New Workplace Institute, takes issue with the management-side lawyers quoted by Ms. Greenwald for not understanding the proposed law’s liability threshold, and for not being empathetic towards people who’ve been bullied:

The … article indicates that many management-side lawyers who oppose the Healthy Workplace Bill may not understand the relatively high thresholds imposed for winning a claim, as well as the provisions built into the statute that discourage frivolous claims and provide legal incentives for employers to act preventively and responsively toward bullying at work…. What’s absent from the piece is the most disturbing, namely, the lack of acknowledgement of the destructive effects of abusive treatment on workers’ mental and physical health.

As one of the unsympathetic lawyers Ms. Greenwald quoted, I’d like to respond.

I am not pro-bullying. In fact, I abhor bullying – in the workplace, in the schoolyard, anywhere. Anyone who tells you they are in favor of bullying likely is a bully themselves. I recognize that bullying can have negative effects on the victims. It is not acceptable to bully someone. And, employers who turn a blind eye to bullying—whether by managers, supervisors, and co-workers—are doing their businesses and their employees a disservice.

But, the issue is not whether bullying impacts its victims. We can all agree that it does. The issue is whether we need legislation that has the probability of turning every petty slight and annoyance in the workplace into a lawsuit. To quote Michael Fox on this very issue, “Once an employer has been sued, they have lost.” And that is the point. We can all agree that harassment “because of” [race, sex, religion, disability, etc.] needs some legal teeth behind it to change employers conduct. It’s not bullying for bullying’s sake, but instead bullying because of an inherent characteristic. Indeterminate bullying, though, should be self-regulating, and not a tort that has the likelihood of obliterating at-will employment by hamstringing supervisors and managers from supervising and managing.

So, what can (and should) employers be doing now about workplace bullying?

  1. Review current policies. I would imagine that most handbooks already have policies and procedures that deal with workplace bullying. Do you have an open-door policy? A complaint policy? A standards of conduct policy? If so, your employees already know that they can go to management with any concerns—bullying included—and seek intervention.

  2. Take complaints seriously. Whether or not illegal, reports of bullying should be treated like any other harassment complaint. You should promptly conduct an investigation and implement appropriate corrective action to remedy the bullying.

To the proponents of the anti-bullying laws: we opponents are not insensitive to the impact bullying can and does have on people. We simply ask that you also look at the flip-side—the impact these laws will have on businesses.

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

Tuesday, May 25, 2010

Do you know? Discovery of social networks in employment disputes

I’ve long preached that employees should not enjoy an expectation of privacy in information they voluntarily place on the Internet, including social networks like Facebook. What they make available for the others to see should be fair game for employers to use in making employment decisions. According to one federal court in Indiana, it is also fair game for employers to use this information in defending against discrimination lawsuits. Because there are so few cases discussing this developing issues of the discoverability of social networking information, this case is helpful in defining the scope of these issues.

EEOC v. Simply Storage Management (S.D. Ind. 5/11/10) concerns two employees’ sexual harassment claims, and in particular their claims of depression, stress, and other psychiatric disorders stemming from the harassment. In discovery, Simply Storage sought the following information from the claimants’ social networking pages on Facebook and MySpace:

  • All photographs or videos posted by the claimants or anyone on their behalf on Facebook or MySpace.

  • Electronic copies of the claimants’ complete profiles on Facebook and MySpace (including all updates, changes, or modifications to their profiles) and all status updates, messages, wall comments, causes joined, groups joined, activity streams, blog entries, details, blurbs, comments, and applications (including, but not limited to, “How well do you know me” and the “Naughty Application”).

The EEOC objected to the discovery on the grounds that the requests were not relevant, improperly infringed on the claimants’ privacy, and would harass and embarrass the claimants. Simply Storage claimed that discovery of these matters was proper because the claimants put their emotional health at issue beyond that typically encountered with “garden variety emotional distress claims.”

The court agreed with the employer and ordered the discovery. In doing so, it made four key observations about the discovery of social networking in discrimination cases.

  1. Social networking content is not shielded from discovery merely because it is “locked” or protected as “private”.

  2. However, all social networking content is not necessarily relevant or discoverable in all cases; the information must still be relevant to a claim or defense in the case. The court used the following example to illustrate this difference: “If a claimant sent a message to a friend saying she always looks forward to going to work, the person to whom she sent the message and the substance of the message are what should be considered to determine whether the message is relevant…. But the mere fact that the claimant has made a communication is not relevant because it is not probative of a claim or defense in this litigation.”

  3. Allegations of depression, stress disorders, and similar injuries will manifest themselves in some social networking content. An examination of that content might reveal whether and when onset occurred, the degree of distress, and other stressors that could have produced the alleged emotional distress.

  4. Because discovery is meant to be liberal, the producing party should err in favor of production if there is any doubt over the arguable relevance of social networking information.

The court also specifically addressed the employees’ privacy concerns:

The court agrees with the EEOC that broad discovery of the claimants’ SNS could reveal private information that may embarrass them. Other courts have observed, however, that this is the inevitable result of alleging these sorts of injuries. Further, the court finds that this concern is outweighed by the fact that the production here would be of information that the claimants have already shared with at least one other person through private messages or a larger number of people through postings. As one judge observed, “Facebook is not used as a means by which account holders carry on monologues with themselves.”

In other words, if it is fit to share with your Facebook friends, it is fit to be disclosed in discovery (as long as it’s relevant). As these issues become more prevalent in litigation, these guideposts will become more fleshed out. In the meantime, consider including requests for social networking information in all employment disputes.

[Hat tip: Fitzpatrick on Employment Law]

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

Monday, April 19, 2010

When should you get an attorney involved with a problem employee? As soon as possible.

A few weeks ago I wrote about what employers need to know about EEOC investigations. I suggested that employers get attorneys involved “as early as the first receipt of the charge of discrimination.” West v. Tyson Foods (6th Cir. 4/15/10) (unpublished) [pdf] provides a great example of the importance of the early involvement of counsel.

Amanda West quit her job at a Tyson chicken processing plant after being subjected to more than a month of fairly pervasive sexual harassment. During her exit interview with Tyson’s HR manager, West talked about all of the harassment to which she had been subjected and that her supervisors failed to respond to her complaints. She also identified the perpetrators by name. The HR manager, however, did not conduct any investigation into the allegations until after Tyson received West’s EEOC charge. At trial, the court admitted into evidence the HR manager’s notes from the exit interview, along with its EEOC statement of position. That position statement falsely claimed that Tyson launched an investigation following the exit interview. From this evidence—along with the evidence of the harassment and the supervisors lack of response—the jury awarded West $1,281,636.58—$131,636.58 in lost wages, $750,000 for mental distress, and $400,000 in punitive damages—which the 6th Circuit affirmed.

What is the lesson here? Having an attorney draft the position may not have saved the day, but it would have certainly lessened the impact of Tyson’s involvement in the harassment. The misstatements in the position statement make it look like Tyson was trying to cover up what happened. That perception of a cover-up likely led to the high compensatory and punitive awards.

Monday, March 15, 2010

Beware these types of problem employees

Today is the Ides of March. For Julius Caesar, it meant a knife in the back from his best friend. Yet, Caesar had been warned to beware the Ides. I, too, provide the following warning. Beware these archetypes of problem employees in your organization:

  • The chronically absent employee.
  • The chronically late employee.
  • The chronically ill employee.
  • The insubordinate employee.
  • The complaining employee.
  • The bullying or harassing employee.
  • The substance abusing employee.
  • The thieving employee.
  • The disloyal employee.
  • The unhappy employee.

Each of these employees comes bearing a knife in the form of a potential lawsuit. At the same time, each is also loaded with legal landmines. For example, the absent or late employee may have an underlying medical issue causing their attendance issues. The harassing employee will put in a motion a chain of events under your harassment policy. The first step, though, in dealing with these issues is to recognize that they are issues at all.

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

Thursday, March 4, 2010

It’s time to bring Ohio’s discrimination law in line with its federal counterparts

At Jottings By An Employer’s Lawyer, Michael Fox discusses pending legislation in Missouri that would bring that state’s employment discrimination laws into line with their federal counterparts. Ohio needs the same reforms.

There are at least four key areas in which Ohio law is out of line with its federal counterparts. This dissymmetry creates an uneven playing field, in which employees are encouraged to forum shop their claims.
  1. Exhaustion of administrative remedies. Under Ohio law, a plaintiff can proceed directly to court without first filing any claims with the state or federal agencies. The federal statutes require that an employee file a charge with the EEOC before filing a complaint alleging discrimination in court.
  2. Time periods for filing claims. Under Ohio law, an employee has 6 years to file all types of discrimination claims except age claims, for which they have 180 days to file. Under federal law, an employee has 300 days to file an agency charge, and an additional 90 days to file a lawsuit after final disposition by the agency.
  3. Supervisor and manager individual liability. Under Ohio law, managers and supervisors can be held personally liable for their own acts of discrimination. This type of liability does not exist under federal law.
  4. Damage caps. Damages for employment discrimination claims are uncapped under Ohio law. Under federal law, compensatory and punitive damages are capped based on the size of the employer, and max out at $300,000 for each.
These reforms are needed to: i) eliminate the confusion that exists between two different procedural schemes to remedy the same alleged conduct; ii) remedy the problems created by employees shopping their claims between state and federal forums; and iii) remove disincentives for businesses to choose Ohio as their place of operations.

Wednesday, February 17, 2010

“Sue first” mentality costs EEOC $4.5 million in sanctions, yet I question whether this is a good thing

Shoot first and ask questions later, and don't worry, no matter what happens, I will protect you.
—Hermann Goering

In EEOC v. CRST Van Expedited (N.D. Iowa 2/9/10) [pdf] (courtesy of Ross Runkel and Workplace Prof Blog), a federal judge tagged the EEOC with $4,467,442.90 in attorneys’ fees and costs for its “sue first, ask questions later litigation strategy” in pursuing a systemic sex discrimination case. What did the EEOC do (or, more accurately, what didn’t it do) that led to this huge fine?

  • Following summary judgment 67 of the original 270 plaintiffs remained in the case. Those 67 claims, however, never made it to trial.

  • The court dismissed the claims of the remaining 67 plaintiffs because the EEOC “did not conduct any investigation of the specific allegations of the allegedly aggrieved persons for whom it seeks relief at trial before filing the Complaint—let alone issue a reasonable cause determination as to those allegations or conciliate them.” Indeed, “the EEOC did not even interview any witnesses or subpoena any documents to determine whether any of their allegations were true.”

  • The EEOC did not make a reasonable cause determination as to the specific allegations of any of the 67 allegedly aggrieved persons prior to filing the Complaint. In fact, 27 of the women alleged they were sexually harassed after the lawsuit was filed, and the EEOC did not learn the substance of the allegations of another 38 until after it filed its Complaint.

  • The court concluded that the EEOC’s failures prejudiced the employer: “The EEOC’s failure to investigate the claims of the 67 allegedly aggrieved persons deprived CRST of a meaningful opportunity to engage in conciliation and foreclosed any possibility that the parties might settle all or some of this dispute without the expense of a federal lawsuit.”

My first instinct is to applaud this court for holding the EEOC’s feet to the fire. It’s comforting to witness governmental accountability for a lack of diligence in an era of increased vigilance in the enforcement of EEO laws.

Yet, I think this decision will have deeper implications for the agency and businesses. While it will act as an important check on the EEOC’s recent run of federal filings, it will also cause the EEOC to dig deeper and wider at the investigatory stage to support the lawsuits that it does file. The agency now has a roadmap from a federal court setting forth what is necessary pre-suit: complainant and witness interviews, document reviews, reasonable cause determinations, and an offer of conciliation.

In other words, applaud the visceral appeal of seeing the EEOC take one on the chin, but be very wary of the increased administrative burden this decision will likely place on your business in future EEOC investigations.

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

Thursday, January 21, 2010

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

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

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

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

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

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

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

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

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

To conclude:

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

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

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

Thursday, September 3, 2009

Study of American working conditions presents opportunity for employers to tune up legal compliance

Cars need routine maintenance: an oil change every 3,000 miles, an annual inspection of the systems, and more serious TLC every two or three years. Without this service, even the best made car will die long before its time. With this service, clunkers can run for hundreds of thousands of miles.

According to a survey conducted by the Center for Urban Economic Development, the National Employment Law Project and the UCLA Institute for Research on Labor and Employment (as reported in the New York Times by as reported in the New York Times by Steven Greenhouse) many employers are not doing the routine maintenance that they should to keep their labor and employment compliance in tip top shape.

The survey of over 4,300 low-wage workers in Chicago, LA, and New York concluded:

  • 26% of employees reported being paid less than the minimum wage.
  • 76% of employee who work overtime reported not being paid the legally required overtime rate.
  • Of the 25% who claimed off the clock work, 70% reported it was unpaid.
  • 41% of employees who had money deducted from their pay reported illegal deductions.
  • Of the 20% of employees who reported making a complaint to management or trying to start a labor union, 43% experienced some form of retaliation.
  • 50% of employees who reported workplace injuries to their employer claimed some form of retaliation.
  • 68% experienced some pay-related violation.

You could dismiss this study as left-wing propaganda. I urge employers to pay attention to it for one important reason. In the Obama administration, the federal agencies that enforce workplace laws are ramping up enforcement to an unprecedented level:

What does all this mean for the average employer? There is a wonderful opportunity available to get your hands dirty in HR matters and figure out where the violations exist in your workplace before a federal agency or plaintiff comes knocking. I hope your workers weren’t among those surveyed, and I hope your workplace isn’t as bad as those included in the survey. However, every workplace needs a tune-up every now and then. Handbooks should be reviewed annually. Harassment and EEO training should be done at least every two years absent a need for more frequent training. A wage and hour audit should be completed once every two to three years. Your stance on retaliation (“Don’t do it”) should be reinforced at every opportunity.

I can’t say for certain that treating your workplace policies like your car will avoid lawsuits. But, some routine preventative maintenance will go a long way to ensuring better compliance and fewer problems.

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

Monday, August 24, 2009

A lesson on reasonable accommodations

My family and I went to Sesame Place last Friday. As we were preparing to leave the park, my three-year-old daughter noticed a queue for Cookie Monster and Telly Monster, and asked if she could see the characters before we left. When we got to the end of the line, however, the handler told us that the line was closed. If you want to know what absolute dejection looks like, you should have seen the look on my daughter’s face. She began to uncontrollably cry, sobbing that she just wanted to give Cookie a hug. I began to plead with the employee to reopen the line for my daughter, but she told me that doing so would be unfair to the hundreds of other children she had already turned away. My daughter’s genuine tears must have moved the employee, though, because she granted us VIP access to the holding area where all of the characters that march in the parade. Instead of just getting to hug Cookie and Telly, my daughter got to meet and hug every character in the park.

This parable holds a very good lesson for employers when dealing with a disabled employee’s request for a reasonable accommodation. The employee is not entitled to an accommodation of his or her choosing. Instead, the employer may choose among available accommodations as long as the chosen accommodation is effective. If more than one accommodation is effective, the employer has the ultimate discretion to choose between effective accommodations. Cost, ease of provision, and the employee’s preference are factors to be considered, but are not dispositive. Instead, as part of the interactive process, the employer may offer alternative suggestions and discuss their effectiveness in removing the workplace barrier.

My daughter would have been very happy at the back of the line to meet Cookie Monster. That accommodation, however, was not feasible. In your workplace, the alternative will not always work out as well for the employee as it did for my daughter. Engaging in the required dialogue with the employee, however, helps both sides come to an understanding as to the reasonableness of the proffered accommodation.

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

Thursday, July 30, 2009

A short rant, and a lesson on employee appreciation

I’m always happy to answer an email or a phone call from a reader. Yesterday, I received an email from someone asking me a question about something I wrote in a publication called What’s Working in Human Resources. The problem is, I never wrote anything for What’s Working in Human Resources. I googled the publication, and discovered two things: its published by Progressive Business Publications out of Malvern, PA, and its publications are not available online. The emailer graciously forwarded me a copy of the article. What I discovered frankly shocked me. What’s Working in Human Resources had “borrowed” content from a post I wrote earlier this year, and made it look like I had given an interview.

Now, I’m all for free publicity, and I am happy to talk to any reporter who is looking for a quote on an employment law issue. All you have to do is ask. Just this year I’ve been quoted in the Wall Street Journal, Business Insurance Magazine, and the National Law Journal, to name a few. What bothers me is that my content was borrowed without my permission, and passed off as if I had spoken to this publication.

In response to my email asking that Progressive Business Publications cease using my content without my permission, I received the following:

We’ll be happy to comply with your wishes.

I’d like to point out, however, that we classified you as an expert and provided contact information where our readers might avail themselves of your wisdom. We find most employment lawyers think that’s a good thing.

Apparently, being called an “expert” is supposed to compensate me for the copyright violation.

From this tale, which consumed way too much of my time and energy yesterday, what lesson can employers learn? Give credit where credit is due. One of the easiest ways to make an employee feel undervalued and put that person at risk of leaving an organization is for management to take that employee’s ideas and hard work and pass it off as its own. Proper attribution and credit is easy to give, and usually goes a long way to making employees feel appreciated.

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

Wednesday, June 10, 2009

Drafting a social networking policy: 7 considerations

I could draft a perfect social networking policy using only a few words: “Be mature, be ethical, and think before you type.” Ultimately, you may decide that such brevity is what you want for you business. For the sake of completeness, though, I offer seven thoughts to consider when drafting a social networking policy.
  1. How far do you want to reach? Social networking presents two concerns for employers – how employees are spending their time at work, and how employees are portraying your company online when they are not at work. Any social networking policy must address both types of online use.
  2. Do you want to permit social networking at work, at all? It is not realistic to ban all social networking at work. For one thing, you will lose the benefit of business-related networking, such as LinkedIn. Without turning off internet access or blocking certain sites, a blanket ban is also hard to monitor and enforce.
  3. If you prohibit social networking, how will you monitor it? Turning off internet access, installing software to block certain sites, or monitoring employees’ use and disciplining offenders are all possibilities, depending on how aggressive you want to be and how much time you want to spend watching what your employees do online.
  4. If you permit employees to social network at work, do you want to limit it to work-related conduct, or permit limited personal use? How you answer this question depends on how you balance productivity versus marketing return.
  5. Do you want employees to identify with your business when networking online? Because this blog is affiliated with my law firm, Kohrman Jackson & Krantz, I am cognizant that everything I write reflects on my partners and my business. Employees should be made aware that if they post as an employee of your company, the company will hold them responsible for any negative portrayals. Or, you could simply require that employees not affiliate with your business and lose the networking and marketing potential Web 2.0 offers.
  6. How do you define “appropriate business behavior?” Employees need to understand that what they post online is public, and they have no privacy rights in what they put out for the world to see. Anything in cyberspace can be used as grounds to discipline an employee, no matter whether the employee wrote it from work or outside of work. There should be consequences for any information that negatively reflects on your business.
  7. How will social networking intersect with your broader harassment, technology, and confidentiality policies? Employment policies do not work in a vacuum. Employees’ online presence, depending on what they are posting, can violate any number of other corporate policies. Drafting a social networking policy is an excellent opportunity to revisit, update, and fine-tune other policies.
For more information on social networking, revisit yesterday’s post -- Do you know? Facebook and Twitter and blogs, oh my! What is social networking and why should you care?

Thursday, June 4, 2009

3 lessons in handling workplace harassment

Gallagher v. C.H. Robinson Worldwide (6th Cir. 5/22/09) [PDF] offers an excellent example of how businesses get themselves into trouble by failing to actively and effectively police workplace offensive conduct.

Julie Gallagher began working at C.H. Robinson Worldwide, a Cleveland trucking company, in September 2002. She held an office job at CHR, working with two dozen other employees in a relatively small office. She quit CHR after only four months. In the interim, she claims that she was subjected to repeated sex-based harassment and offensive conduct, including:

  • The prevalent use of foul language by mostly male coworkers who openly and loudly referred to female customers, truck drivers, coworkers and others as bitches, whores, sluts, dykes and cunts.
  • The frequent display of pornographic websites and magazines.
  • Co-workers who shared nude pictures of their girlfriends in different sexual poses.
  • Male co-workers who daily traded sexual jokes and engaged in graphic discussions about their sexual liaisons, fantasies, and preferences.
  • One co-worker angrily called her a “bitch” on several occasions.
  • Male co-workers called her fat, a “heifer” with “milking udders,” and “moo”ed at her. 

Gallagher admitted that she did not avail herself of CHR’s formal harassment policy and complaint mechanism, but did sometimes complain to the branch manager, Greg Quast, to no avail.

The trial court granted CHR’s summary judgment motion and dismissed Gallagher’s case. The 6th Circuit, however, reversed and sent the case back for trial. Why? And what can employers learn from this case?

  1. Offensive conduct can be “based on sex” whether or not it is directed at a woman. In this case, most of the complained of harassment was not directed at Gallagher, but was explicitly sexual and degrading of women in general. Such conduct is actionable whether or not the complaining employee is specifically targeted. The lesson: Employers should not ignore harassment complaints just because the complaining employee was only subjected to general workplace misconduct.

  2. A jury could conclude that the harassment was severe and pervasive: “Considering the totality of the circumstances …, the conclusion is inescapable that a reasonable person could have found the Cleveland office—permeated with vulgar language, demeaning conversations and images, and palpable anti-female animus—objectively hostile.” The lesson: Businesses are not fraternity houses, and employers that allow frat-like antics to permeate the workplace will often find themselves on the losing end of a harassment lawsuit.

  3. The branch manager should have taken greater steps to correct or remedy the harassment: “It is true that Gallagher did not report all of her concerns to Quast and did not necessarily characterize all of her complaints as sexual harassment complaints. Still, when the conduct Gallagher did report to Quast is considered alongside the pervasive conduct Quast himself witnessed, it can hardly be denied that there is a genuine fact issue as to what Quast, and therefore C.H. Robinson, knew or should have known.” The lesson: Once management knows or should know of inappropriate conduct (whether by a complaint or otherwise), it cannot borough its head in the sand, but must undertake a reasonable investigation and implement prompt remediation if warranted.

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