Do you know? Handling employees with suspected swine flu

The President has officially declared H1N1 a national emergency. Hyperbole aside, it is estimated that as many as 60% of the U.S. population will contract the H1N1 virus this flu season. If these numbers are even close to being correct, then it is almost guaranteed that the swine flu will impact your workplace. The CDC offers the following 10 tips for handling H1N1 in your workplace:

1. Develop policies that encourage ill workers to stay at home without fear of any reprisals.

2. Develop other flexible policies to allow workers to telework (if feasible) and create other leave policies to allow workers to stay home to care for sick family members or care for children if schools close.

3. Provide resources and a work environment that promotes personal hygiene. For example, provide tissues, no-touch trash cans, hand soap, hand sanitizer, disinfectants and disposable towels for workers to clean their work surfaces.

4. Provide education and training materials in an easy to understand format and in the appropriate language and literacy level for all employees.

5. Instruct employees who are well but who have an ill family member at home with the flu that they can go to work as usual. These employees should monitor their health every day, and notify their supervisor and stay home if they become ill. Employees who have a certain underlying medical condition or who are pregnant should promptly call their health care provider for advice if they become ill.

6. Encourage workers to obtain a seasonal influenza vaccine, if it is appropriate for them according to CDC recommendations. This helps to prevent illness from seasonal influenza strains that may circulate at the same time as the 2009 H1N1 flu.

7. Encourage employees to get the 2009 H1N1 vaccine when it becomes available if they are in a priority group according to CDC recommendations. Consider granting employees time off from work to get vaccinated when the vaccine is available in your community.

8. Provide workers with up-to-date information on influenza risk factors, protective behaviors, and instruction on proper behaviors (for example, cough etiquette; avoid touching eyes, nose and mouth; and hand hygiene).

9. Plan to implement practices to minimize face-to-face contact between workers if advised by the local health department. Consider the use of such strategies as extended use of email, websites and teleconferences, encouraging flexible work arrangements (for example, telecommuting or flexible work hours) to reduce the number of workers who must be at the work site at the same time or in one specific location.

10. If an employee does become sick while at work, place the employee in a separate room or area until they can go home, away from other workers. If the employee needs to go into a common area prior to leaving, he or she should cover coughs/sneezes with a tissue or wear a facemask if available and tolerable. Ask the employee to go home as soon as possible.

For other information on dealing with H1N1 in your workplace, flu.gov has a wealth of resources, including a small business guide, a communication toolkit, guidance from the EEOC, and a business pandemic planning checklist.

---

Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Do you know? Employment litigation expected to increase in 2010

The international law firm Fulbright & Jaworski has released its Fifth Annual Litigation Trends Survey and Highlights (available in full [PDF], or as an executive summary). The survey of 251 U.S. corporate law departments reveals some interesting trends that suggest that businesses of all sizes should increase their litigation coffers in the coming year.

• Labor and employment lawsuits are the most common type of litigation facing U.S. companies.

• More than half of in-house counsel surveyed felt that the pace of new lawsuits will at least remain stable, and 34% expect an increase in the coming year.

• With employment cases take up the largest portion of corporate dockets.

• Wage and hour lawsuits have the greatest spike in new filings. 19% of U.S. companies cited an increase in wage and hour cases in the past year.

• Moreover, nearly one-third of U.S. companies report an increase in multi-plaintiff or class action age and hour cases.

• Retailers appear to have the most exposure in the wage and hour arena: one-third of retail firms saw an increase in wage-and-hour litigation.

• After wage and hour, companies saw significant increases in five other areas of workplace litigation: discrimination suits, privacy claims, ERISA, disability claims, and age discrimination.

• Companies reported that race discrimination cases have the highest financial exposure, followed by sex discrimination; wage and hour, age discrimination, harassment, retaliation, disability discrimination, non-compete disputes, and FMLA violations.

What does all this data mean for your business? Your legal budgets will likely increase next year. The question you need to answer is whether you want those funds to pay to defend lawsuits, or to proactively audit your internal personnel and employment practices to limit your litigation costs?

---

Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Do you know? Crisis Management

The front page of today’s USA Today’s sports section has a story covering the scandal that has plagued my alma mater (Binghamton University) and its basketball program. During my career I have been involved in my share of cases that have, for one reason or another, garnered some attention from the media. My advice to companies that find themselves in the media spotlight – hire a public relations firm to professionally handle the media.

Here’s what we know about the problems at Binghamton from the story:

• In a quest to make the basketball program successful in a short amount of time, the coach recruited kids with suspect backgrounds, but whom he wanted to give a second chance.
• The school has kicked six players off the basketball team, five for undisclosed violations and the other following his indictment on drug charges.
• The school is embarrassed, the basketball program is in shambles, and its league and others are questioning the price being paid for Division I athletic success.

The articles quotes criticisms from alumni, other schools, and other conferences. And the school’s non-response: “Binghamton president Lois DeFleur declined to comment through an aide, as did [Coach] Broadus, interim athletics director Jim Norris and former AD Joel Thirer, a tenured professor who will move in the short term to the university provost’s office.” While I understand the need for discretion during an internal investigation, the school should have had some response prepared, even if it’s merely something like, “The University is committed to running its athletic program in accordance with all NCAA rules and guidelines, and following its internal investigation will take appropriate corrective action, if necessary, consistent with those rules and guidelines.” Simple, to the point, and most importantly, non-incriminating. 

The next time your business finds itself in the unwanted glare of the media spotlight, consider bringing in a media expert to help manage the crisis, deflect the attention, and prepare an appropriate response.

---

Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Do you know? Wage and hour recordkeeping

The Fair Labor Standards Act sets certain requirements for what records an employer covered by the Act must keep. For non-exempt employees, an employer must maintain the following records:

1. Employee’s full name and social security number.
2. Address, including zip code.
3. Birth date, if younger than 19.
4. Sex and occupation.
5. Time and day of week when employee’s workweek begins.
6. Hours worked each day.
7. Total hours worked each workweek.
8. Basis on which employee’s wages are paid (e.g., “$9 per hour”, “$440 a week”, “piecework”)
9. Regular hourly pay rate.
10. Total daily or weekly straight-time earnings.
11. Total overtime earnings for the workweek.
12. All additions to or deductions from the employee’s wages.
13. Total wages paid each pay period.
14. Date of payment and the pay period covered by the payment.

For exempt employees, employers must keep the records for 1 – 5 and 13 – 14. Additionally, for exempt employees employers must also keep a record of the basis on which wages are paid in sufficient detail to permit calculation for each pay period of the employee’s total compensation.

Payroll records must be kept for three years. Records on which wage computations are based – time cards, wage rate tables, work and time schedules, and records of additions to or deductions from wages – must be kept for two years.

There is no particular form in which the records must be kept, as long as they are maintained and are available for inspection at the request of the Department of Labor.

Ohio has its own recordkeeping requirements, but as long as an employer is compliance with the federal standards should keep an employer compliant with Ohio’s standards.

---

Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Do you know? What is a “disability” under the recent ADA Amendments Act

The ADA Amendments Act, which became effective January 1, 2009, is intended “to reinstate a broad scope of protection” by expanding the definition of the term “disability.” Recently, the EEOC published its proposed regulation interpreting these amended provisions. The regulations will be published this week, and the EEOC has already published a helpful Q&A discussing the proposed ADAAA regulations.

The core three-part definition of “disability” largely remains unaltered. An ADA-protected disability is still defined as:

1. a physical or mental impairment that substantially limits a major life activity; or
2. a record of a physical or mental impairment that substantially limited a major life activity; or
3. when an employer takes an action prohibited by the ADA based on an actual or perceived impairment.

What has changed under the ADAAA is how these definitions are interpreted and applied. Indeed, according to the EEOC, “As a result of the ADAAA, it will be much easier for individuals seeking the law’s protection to demonstrate that they meet the definition of ‘disability….’”

Major Life Activities

“Major life activities” fall under one of two categories. An employee only needs one major life activity from either of the following:

• Category One includes examples such as caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, and working at a type of work.
• Category Two covers the operation of major bodily functions, including functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, circulatory, respiratory, endocrine, hemic, lymphatic, musculoskeletal, special sense organs and skin, genitourinary, cardiovascular and reproductive functions.

Substantially Limiting

To have a disability (or to have a record of a disability) an individual must be substantially limited in performing a major life activity as compared to most people in the general population. An impairment need not prevent, or significantly or severely restrict, the individual in performing a major life activity to be considered “substantially limiting.” Determination of whether an individual is experiencing a substantial limitation in performing a major life activity is a common-sense assessment based on comparing an individual’s ability to perform a specific major life activity with that of most people in the general population.

Mitigating Measures

The positive effects from an individual’s use of one or more mitigating measures be ignored in determining if an impairment substantially limits a major life activity. In other words, an employer must ignore the fact that a mitigating measure removes or reduces an impairment in determining whether an employee is disabled. Mitigating measures include medication, medical equipment and devices, prosthetic limbs, low vision devices (devices that magnify a visual image), reasonable accommodations, and even behavioral modifications. Ordinary eyeglasses or contact lenses do not count as mitigating measures.

Exemplar Impairments

• The following are examples of impairments that consistently meet the definition of “disability”: deafness, blindness, intellectual disability (formerly known as mental retardation), partially or completely missing limbs, mobility impairments requiring use of a wheelchair (a mitigating measure), autism, cancer, cerebral palsy, diabetes, epilepsy, HIV/AIDS, multiple sclerosis, muscular dystrophy, major depression, bipolar disorder, post-traumatic stress disorder, obsessive-compulsive disorder, and schizophrenia.

• The following are examples of impairments that may be substantially limiting for some individuals but not for others: asthma, back and leg impairments, and learning disabilities.

• An impairment that is episodic or in remission meets the definition of disability if it would substantially limit a major life activity when active. Examples of such impairments include: epilepsy, hypertension, multiple sclerosis, asthma, diabetes, major depression, bipolar disorder, and schizophrenia.

• The following are examples of impairments that usually are not considered “disabilities”: the common cold, seasonal or common influenza, a sprained joint, minor and non-chronic gastrointestinal disorders, a broken bone that is expected to heal completely, appendicitis and seasonal allergies.

“Regarded as” Disabled

Under the ADAAA, an employer “regards” an individual as having a disability if it takes a prohibited action based on an individual’s impairment or on an impairment the employer believes the individual has, unless the impairment is transitory (lasting or expected to last for six months or less) and minor. No longer does one have to show that the employer believed the impairment (or perceived impairment) substantially limited performance of a major life activity. Employers have no obligation to provide reasonable accommodation to an individual who only meets the “regarded as” definition of disability.

The regulations are not final, and are subject to change after the public has had a 60-day opportunity to comment and make suggestions. I will report further on these regulations after they become final.

---

Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Do you know? Fake job references?

More people are out of work at any time in the past 25 years. And, it appears that some are taking desperate measures to find new jobs. ABCNews.com reports that companies have sprung up that will sell a job hunter a fake reference: CareerExcuse.com and Alibi HQ.

It’s not newsworthy that people lie to get jobs. What is newsworthy, though, is the ease at which the desperate unemployed can find a bogus, yet legitimate sounding, employment reference. The internet has made it almost too easy for a job candidate to create an entirely fictitious, yet 100% verifiable, work history.

Employers screening job candidates need to be extra vigilant. Just as the internet has enabled companies like CareerExcuse to flourish, it also provides the tools for you to call a bluff. Don’t just take an applicant’s word that he worked for ABC Widgets for 10 years. Google the company and see if it exists. Look for an independent phone number to verify employment. A little diligence up front can go a long way to saving headaches down the road.

---

Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Do you know? What are an employer’s rights when an employee fails to give timely notice of FMLA leave?

Employees cannot simply take FMLA leave on a whim. They must provide their employers at least some notice, depending on the circumstances. An employee who needs foreseeable FMLA-qualifying leave is required to provide at least verbal notice sufficient to make the employer aware of the need for the leave and its anticipated timing and duration. An employee who needs unforeseeable FMLA-qualifying leave must, as soon as practical, provide sufficient information for the employer to reasonably determine whether the FMLA applies to the leave request.

What happens, though, if an employee fails to give timely notice?

1. Foreseeable leave – 30 days: When the need for FMLA leave is foreseeable at least 30 days in advance, and the employee fails to provide at least 30 days’ advance notice, the employer may delay FMLA coverage until 30 days after the date the employee provides notice. Thus, if an employee should have provided 30 days’ notice, but only provided 29 days’ notice, the employee can delay FMLA coverage for a full 30 days. This section is the most penal.

2. Foreseeable leave – less than 30 days: When the need for FMLA leave is foreseeable less than 30 days in advance, and an employee fails to give notice as soon as practicable under the facts and circumstances, the employer’s right to delay FMLA coverage for leave will vary from case to case. For example, if an employee reasonably should have given the employer two weeks notice but instead only provided one week notice, then the employer may delay FMLA-protected leave for one week.

3. Unforeseeable leave. When the need for FMLA leave is unforeseeable, and an employee fails to give notice as soon as practicable under the facts and circumstances, the employer’s right to delay FMLA coverage for leave will vary from case to case. For example, if it would have been practicable for an employee to have given the employer notice of the need for leave very soon after the need arises consistent with the employer's policy, but instead the employee provided notice two days after the leave began, then the employer may delay FMLA coverage of the leave by two days.

These rules provide employers and important tool. Delaying an employee FMLA coverage means that any absences can be considered unexcused. For an employee who fails to give timely notice of a foreseeable FMLA leave, the employee could accumulate enough absences to warrant termination before the FMLA coverage ever kicks in.

To take advantage of these provisions,the Department of Labor requires that the employee had actual notice of the FMLA notice requirements, through a proper workplace posting and a properly distributed FMLA policy. If you are unsure whether your postings and policies pass muster, check with your employment counsel.

---

Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Do you know? Harassment by a non-employee

Last week, an Orlando, Florida, jury convicted a Pennsylvania tourist of groping Minnie Mouse. Apparently, the man thought it was okay to grab Minnie’s breasts and bottom through her costume while visiting the character at the Magic Kingdom.

Do you know what an employer’s obligations are when an employee complains of harassment by a non-employee such as customer, vendor, or contractor? The obligations are exactly the same as if the alleged perpetrator was an employee. In fact, Ohio has a specific regulation that addresses this exact scenario: Admin. Code 4112-5-05(J)(5):

An employer may also be responsible for the acts of nonemployees (e.g., customers) with respect to sexual harassment of employees in the work place, where the employer (or its agents or supervisory employees) knows or should have known of the conduct and fails to take immediate and appropriate corrective action. In reviewing these cases the commission will consider the extent of the employer’s control and any other legal responsibility which the employer may have with respect to the conduct of such nonemployees.

At the end of the day, a harassment complaint by an employee against a non-employee should not be treated any differently than an intra-employee complaint:

1. Separate the complaining employee from the alleged harasser.

2. Promptly and fully investigate the allegations.

3. Evaluate the evidence and make a reasoned conclusion as to what happened.

4. Take prompt and effective remedial steps, if necessary.

5. Use the complaint as an opportunity to retrain employees about your sexual harassment policy.

[Hat tip: Employeescreen IQ Blog]

---

Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Do you know? FMLA fitness-for-duty certifications

In a previous post, I detailed the new FMLA regulation’s eligibility notice and designation notice requirements. The FMLA also has specific requirements for how an employer must go about obtaining a fitness-for-duty certification from an employee on an FMLA leave for his or her own serious health condition.

1. Mandatory written notice. Before an employer can require an employee to provide a fitness-for-duty certification, it must expressly be provided for in a written FMLA policy or in the designation statement given to the employee at the outset of the leave. Additionally, if the employer wants the certification to address the essential functions of the employee’s job, a list of such functions must be provided to the employee with the designation notice.

2. Uniformity. The employer must have a uniformly-applied policy or practice that requires all similarly-situated employees (i.e., same occupation, job function, or serious health condition) who take leave for such conditions to obtain and present the certification.

3. Limited to the specific health condition. An employer may only seek a fitness-for-duty certification with regard to the particular health condition that caused the employee’s need for FMLA leave.

4. Cost. The employee must pay for the cost of the certification, and the employee is not entitled to be paid for the time or travel costs spent acquiring the certification.

5. Clarification. While an employer can seek clarification of a fitness-for-duty certification with an employee’s health care provider under the same rules applicable to other communications with an employee’s health care provider, the employer cannot delay the employee’s return to work pending the clarification. Unlike the initial leave certification, an employer cannot seek a second or third opinion of a fitness-for-duty.

6. Denial of job restoration. An employer can deny restoration, however, if a properly requested fitness-for-duty certification is not returned by the employee.

7. Intermittent or reduced work schedule leave. An employer is not entitled to a certification for each absence taken on an intermittent or reduced leave schedule. An employer is entitled, though, to a certification for such absences up to once every 30 days if reasonable safety concerns exist regarding the employee’s ability to perform his or her duties, based on the serious health condition for which the employee took such leave. An employer may not terminate the employment of an employee while awaiting such a certification for an intermittent or reduced schedule leave absence.

8. Interplay with the ADA. After an employee returns from FMLA leave, the ADA requires any medical examination at an employer’s expense by the employer’s health care provider be job-related and consistent with business necessity. If an employee’s serious health condition may also qualify as a disability under the ADA, the FMLA does not prevent the employer from following the procedures for requesting medical information under the ADA.

---

Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Do you know? Mandatory overtime

We should all know that any hours a non-exempt employee works in excess of 40 in any given week must be paid at a premium rate of one and one-half times the regular rate of pay. But, do you know whether there are any laws that inhibit an Ohio employer’s right to require that employees work more than 40 hours in a week?

The answer is no. An Ohio employer can legally require that its employees work overtime. There are no federal or Ohio laws that prohibit or otherwise limit the right of an employer to require its employees to work as many hours as an employer sees fit. Thus, an employer can require its employees to work more than eight hours in day and more than 40 hours in a week, without restriction. As extreme as it may seem, an employer can require an employee to work 24 straight hours, or work 80 or more hours in a week. Moreover, if an employee refuses to work overtime, an employer can discipline that employee, up to and including termination.

The only restriction placed on overtime work is that it must be paid at the statutory premium rate. Now, retaining employees that you require to work 20 hours a day or 80 hours week after week is another question entirely…

Do you know? Employers can communicate directly with employees’ health care providers for FMLA certifications

The recent changes to the FMLA’s regulations make it that much easier for employers to gather information about the medical need for an employee’s FMLA leave of absence. If an employee’s FMLA medical certification is incomplete (required information is omitted) or insufficient (the information provided is vague, ambiguous, or non-responsive), an employer is now entitled to request additional information directly from the employee’s health care provider.

This ability, however, has certain key limitations:

1. Before an employer can directly contact the health care provider, it must first advise the employee, in writing, of the deficiency in the certification and provide at least seven days for the employee to cure.

2. Thereafter, an employer can directly contact an employee’s health care provider solely for purposes of clarification (to understand the handwriting on the medical certification or the meaning of a response) or authentication (verification that the health care provider completed or authorized the completion of the certification form).

3. Contact, however, is limited to an employer’s own health care provider, a human resources professional, a leave administrator, or a management official.

4. Under no circumstances may the employee’s direct supervisor contact the employee’s health care provider.

5. Employers may not ask health care providers for additional information beyond that required by the FMLA certification form (including diagnostic information).

6. While an employee must give his or her written authorization before the employer can make contact with the health care provider, the employee’s failure to consent entitles the employer to deny the FMLA request.

7. The standard rules of confidentiality of employee medical information still apply.

---

Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Do you know? Perfect attendance bonuses and the FMLA

Before the recent FMLA regulatory amendments took effect, an employer could not  deny a perfect attendance bonus to an employee whose only attendance blemishes were the result of FMLA-leave. As of Jan. 16, 2009, however, employees on FMLA-leave could lawfully be denied a perfect attendance bonus:

[I]f a bonus or other payment is based on the achievement of a specified goal such as hours worked, products sold or perfect attendance, and the employee has not met the goal due to FMLA leave, then the payment may be denied, unless otherwise paid to employees on an equivalent leave status for a reason that does not qualify as FMLA leave.

In other words, as long as other employees taking similar time off are also not eligible for the same bonus, an employer can deny a perfect attendance bonus without fear of FMLA liability. The Department of Labor gives the example of an who uses paid vacation leave for a non-FMLA purpose. If an employer still provides a perfect attendance bonus to that employee, then it would be unlawful to deny the same bonus to an employee who used paid vacation leave for an FMLA-protected purpose.

While employers are now within their rights to deny perfect attendance bonuses to employees who take FMLA leave, the bigger question is whether an employer would want to withhold such a bonus. What message does that send to your employees? We value your dedication to getting to work everyday and on-time, but only if an unforeseen medical condition does not get in the way? Or is it better to pay out the bonus, even to those employees who have FMLA absences?

---

Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Do you know? Handling a chronically ill employee

In the June 19 New York Times, Lesley Alderman provided chronically ill employees some practical information on how to protect their jobs while coping with a chronic illness. Employers also have to protect themselves from liability in the same situation. Two laws govern employees with chronic illnesses: the Family and Medical Leave Act and the Americans with Disabilities Act. It is crucial for employers to understand how these two laws intersect and interact.

The FMLA allows for 12 weeks of unpaid leave for, among other circumstances, an employee’s own serious health condition. A serious health condition is defined as illness, injury, impairment, or physical or mental condition that requires inpatient care or continuing treatment by a health care provider. Only those who have been employed for at least a year, and who have worked a minimum of 1,250 hours in the preceding year, are covered by the FMLA.

Unlike the FMLA, the ADA covers employees on day-one of employment. The ADA also differs from the FMLA in the scope of injuries and illnesses it covers. The FMLA merely requires a serious health condition that prevents the employee from working on a temporary basis (typically at least three days). The ADA, however, requires that the employee must have a current, chronic medical condition that substantially limits one or more major life activities on an ongoing basis. The ADA does not have a leave requirement, although it does require employers to reasonably accommodate employees’ disabilities. Under the ADA, once an employer learns that an employee might need a reasonable accommodation to perform the essential functions of the job, the employer must engage the employee in an interactive process to determine what that reasonable accommodation might be. An extended leave of absence, beyond the FMLA’s 12 weeks, might be reasonable accommodation, depending on the illness or injury, the nature of the job, and the employer’s needs.

The biggest mistake an employer can make is to terminate an employee automatically upon the expiration the FMLA-leave entitlement, without giving any consideration to whether that employee is covered by the ADA and whether a temporarily extended leave or other temporary job restructuring will enable that employee to remain employed.

---

Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Do you know? “Salting” the wounds of labor organizing

“Salting” is a common organizing tactic used by labor unions. It refers to union organizers applying for jobs with non-union employers. The organizers then attempt to organize the employer’s workforce from the inside. In addition to organizing, the salts also try to inflict economic harm on the targeted employer by triggering unfair labor practice charges and resulting back pay liability. Salting is one the more underhanded methods of organizing used by labor unions.

In Toering Electric Co. [PDF], the Bush-era NLRB attempting to limit the ability of unions to salt non-union workplaces. It ruled that an applicant for employment must be genuinely interested in seeking to establish an employment relationship with the employer in order to qualify as an "employee" under the meaning of the National Labor Relations Act, and thus be protected against hiring discrimination based on union affiliation or activity.

Although they face an uphill battle, Congressional Republican are attempting to put another nail in salting coffin. The Truth in Employment Act of 2009 would amend the National Labor Relations Act so that an employer would not be under any obligation to “employ any person who seeks or has sought employment with the employer in furtherance of other employment or agency status.” The Congressional findings contained in the bill make it clear that this intent of this measure is to end salting once and for all:

The tactic of using professional union organizers and agents to infiltrate a targeted employer’s workplace, a practice commonly referred to as ‘salting’, has evolved into an aggressive form of harassment not contemplated when the National Labor Relations Act was enacted and threatens the balance of rights which is fundamental to the system of collective bargaining of the United States. Increasingly, union organizers are seeking employment with nonunion employers not because of a desire to work for such employers but primarily to organize the employees of such employers or to inflict economic harm specifically designed to put nonunion competitors out of business, or to do both. While no employer may discriminate against employees based upon the views of employees concerning collective bargaining, an employer should have the right to expect job applicants to be primarily interested in utilizing the skills of the applicants to further the goals of the business of the employer.

Given the party affiliation of both houses of Congress and the White House, the Truth in Employment Act will likely go nowhere. It’s introduction, though, is a good reminder to non-union employers that salting remains a legitimate threat, especially in today’s pro-union environment.

---

Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Do you know? Facebook and Twitter and blogs, oh my! What is social networking and why should you care?

Cave drawings were likely the earliest form of social networking. Today people tweet their thoughts for the world to see. In between we’ve had instant messaging, MySpace, Facebook, and blogs. The next several big things are already being hatched by some students at Stanford or MIT. Online social networking is here to stay – the only change will be in what form it takes.

According to a recent survey conducted by Deloitte, 22% of employees say that they use some form of social networking five or more times per week, and 15% of employees admit they access social networking while at work for personal reasons. Yet, only 22% of companies have a formal policy that guides employees in how they can use social networking at work.

Before we can figure out what to do about these exploding media at work, we first need to know exactly what we are dealing with. So, for the uninitiated, the following is a short lesson on the various types of social networking that are likely being accessed from your workplace right now.

• Blogs: Blog is short for weblog. Blogs either provide commentary on news or a particular subject (such as the Ohio Employer’s Law Blog), or serve as an online diary. Most are text-based, but blogs can also focus on art, photos, videos, and audio (you may have heard of podcasts). There are hundreds of millions of blogs on the internet, many updated as often as every day.
  
• Facebook: Facebook started as an online tool for college and university students to connect with each other. It has since expanded to allow anyone over the age of 13 with a valid email address to open a free account. It is loosely organized into a variety of networks based on schools, location, employers, charities, and other causes. Connections are known as “friends.” People update with short written blurbs about what they’re doing, pictures, video, and the like. Users can also post on friends’ pages. If you’re not on Facebook, I guarantee someone you know is. In fact, Facebook has over 200 million registered users. Even my mom has a Facebook page.
  
• LinkedIn: LinkedIn is an online network for professionals. It allows people to search and connect via alma mater, location, employer, or various user-created groups. It has over 41 million members.
  
• Twitter: Twitter is latest big-thing in social networking. It is what is known as “micro-bloggings.” “Tweets” are text-based posts of up to 140 characters, displayed on the user’s profile page and delivered to followers, other users who have subscribed.
  

Employers have three options to try to regulate social networking by employees at work: 1) turn off their internet access; 2) institute progressively harsher discipline against employees caught Facebooking or tweeting at work; or 3) draft a reasonable policy that recognizes the intersection of technology in the workplace and employees’ lives, and establishes reasonable baseline expectations about what is and is not acceptable use at work. Only the latter option makes any real sense.

Tomorrow, we’ll explore the pieces and parts that comprise a useable social networking policy. Until then, feel free to follow my 140 character thoughts on Twitter @jonhyman.

Do you know? Sexual orientation and gender identity discrimination

It strikes me as appalling that in the year 2009 there are still minority groups against whom it remains legal to discriminate. An employer can blatantly state that the reason for an employee’s termination is that employee’s sexual orientation, with little risk of legal repercussion. Recognizing this anachronism, some courts have permitted claims by creative attorneys under Title VII for sexual stereotyping. Such recognition, however, varies from judge to judge and court to court, with no uniformity or certainty.

If the Ohio legislature has its way, however, this type of discrimination will end. House Bill No. 176 seeks to add “sexual orientation, gender identity and expression” to the categories of protected classes against whom it is illegal to discriminate in employment decisions in Ohio. Under the statute as proposed, “Sexual orientation” would include “actual or perceived heterosexuality, homosexuality, or bisexuality,” and “gender identity and expression” would include the gender-related identity, appearance, or expression of an individual regardless of the individual’s assigned sex at birth.” The latter is much more controversial than the former, and will also likely be the subject of vigorous debate in Washington D.C. over a potential federal ban of the same types of discrimination.

Many companies have already made the personal decision to prohibit these types of discrimination. For those that have not, if sexual orientation and/or gender identity discrimination becomes illegal policies will have to be rewritten and employees and management will have to be retrained. Keep watching this space for further updates on this important issue.

---

Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Do you know? When it is lawful to take deductions from an employee’s pay?

For an employer to claim that an a professional, administrative, or executive employee is “exempt,” and therefore ineligible to receive overtime compensation, the employee must be salaried. An employee is paid on a salary basis when the employee receives the same amount of pay each pay period, without any deductions.

Despite the general rule against deductions from salaries, the Department of Labor’s rules permits employers to make deductions without risking an employee’s exemption in seven specific instances:

1. When an exempt employee is absent from work for one or more full days for personal reasons, other than sickness or disability.   
   
2. For absences of one or more full days occasioned by sickness or disability (including work-related accidents) if the deduction is made in accordance with a bona fide plan, policy or practice of providing compensation for loss of salary occasioned by such sickness or disability.   
   
3. While an employer cannot make deductions from pay for absences of an exempt employee for jury duty, attendance as a witness, or temporary military leave, the employer can offset any amounts received by an employee as jury fees, witness fees, or military pay for a particular week against the salary due for that particular week.
   
4. For penalties imposed in good faith for infractions of safety rules of major significance.    
   
5. For unpaid disciplinary suspensions of one or more full days imposed in good faith for infractions of workplace conduct rules imposed pursuant to a written policy applicable to all employees.  
   
6. For any time not actually worked during the first or last week of employment.
   
7. For any time taken as unpaid FMLA leave.
   

It is critical for businesses with salaried employees to familiarize themselves with these rules. A mistaken deduction could prove costly. Generally speaking, if an employer makes a deduction from the amount paid, the exemption will be lost during the time period during which the improper deduction was made. The lost exemption does not only apply to the affected employees, but also to all employees in the same job classification working for the same managers responsible for the actual deduction.

The Department of Labor also provides a safe harbor for employers that have a clearly communicated policy that prohibits the improper pay deductions, and which includes a complaint mechanism, reimburses employees for any improper deductions, and makes a good faith commitment to comply in the future.

Before you implement a policy or practice of docking the pay of salaried employees, it is best to consult with experienced employment counsel to evaluate employees’ job classifications and exemptions, to examine the proposed deductions, and to review or draft an appropriate safe harbor policy.

Do you know? Adopt the TEAM approach to fight unions

Whether the EFCA will become law, and in what form, is very much up in the air. Democratic support for the measuring is waning, and business organizations have united in an unprecedented level of opposition. There is no doubt that if card-check becomes law, labor unions will have a much easier time becoming certified in workplaces. Yet, it is unclear whether unions even need the EFCA. In 2007, unions won 60.1% of elections, compared to a mere 51.5% in 1997. In the first half of 2008, the number of elections won by unions increased to 66.8%.

Because unions have become increasingly aggressive, even without the EFCA, I recommend that employers adopt the T.E.A.M. approach to union avoidance:

Train supervisors
Educate employees
Accessibility
Modernize policies


1. Train Supervisors. If a union is organizing, supervisors are likely to be the first people to know. They will also be the people that rank-and-file employees will come to with questions or concerns. Thus, supervisors need to know how to report, monitor, and legally respond to union activity.


2. Educate Employees. Employees should not be told that the company is anti-union, but why it is anti-union – competitive wages and benefits; positive communication between management and employees; history of peaceful employee/management relations; management’s openness to listen to employees and handle their concerns without an intermediary; and an unwillingness to permit a third-party to tell the company and employees how to do their jobs.


3. Accessibility. Management should routinely round its employees to learn what is happening and what they are thinking. Management should walk the floor on a daily basis. It should also hold regular meetings with employees, whether in small sessions with HR or large town hall-style meeting.


4. Modernize Policies. In an ideal world, employee handbooks and other corporate policies should be reviewed and updated annually. I’ve yet to come across a company that does so this frequently. The threat of the EFCA is a perfect excuse to take a good, hard look at current policies. Do you have a written statement on unionization? An open door policy? An issue resolution procedure? Peer review? An employee bulletin board? An electronic communications policy? Most importantly, do you have a no solicitation policy? It is the single most important policy to help fight labor unions.
No program is foolproof. No matter what steps are taken, no matter the quality of employee relations, every company is at risk for a union organizing campaign. Businesses should strive to be an employer of choice for employees, and not an employer of opportunity for labor unions.

Do you know? Volunteerism under federal wage and hour laws

According to EVliving.com, one employer has come up with a creative idea to combat the current economic downturn. The CEO of Greenleaf Book Group, a publishing company, has decided that instead of laying off any employees, his company will simply require its employees to volunteer one hour of time per week to the company.

“Cutting one person from the team is losing one invaluable resource that helps make this entire company tick,” he said. “In the short term, it’s hurting morale and lowering the productivity of a department. In the long run it means the entire company’s time and money spent trying to make up for the loss-redistributing tasks and overburdening departments, struggling to make up the slack, dealing with the paperwork, and eventually putting additional man-hours toward rehiring and retraining. And of course, the toll layoffs take on the economy are tremendous.” … 

“Essentially, every employee is putting in one voluntary extra hour per day at work,” he explained “One extra hour to be used in the most advantageous way possible: finishing up projects, having a meeting with a client or vendor, assisting a coworker, getting hands dirty working in another department. Even cleaning a desk or organizing files, if it helps improve efficiency.” 

The numbers work, he said:

• 30 employees x 1 hour per day
• Multiplied by a 5 day workweek
• Equates to 150 extra hours
• Divide that number by 40 hours per standard workweek
• The result is 3.75, the equivalent of almost 4 full time employee work weeks
• For any company, an extra hour increases the work week from 40 to 45 hours and is a simple 12.5% increase. 

Before you decide to copy Greenleaf’s idea in your own workplace, consider that it almost certainly violates federal wage and hour law. The FLSA requires employees to be paid for all hours worked. Requiring employees to work an hour without pay violates this law. For private employers, there is no such thing as a volunteer employee. All work hours must be paid hours.

To demonstrate the anachronistic nature of the FLSA, however, consider that Greenleaf could have achieved the exact same goal without violating any laws. Instead of asking for an hour of work without pay, it could have simply reduced each employee’s effective weekly rate of pay by one-fortieth. In other words, one could figure out what hourly rate of pay would get an employee to 39 hours worth of pay for 40 hours of work. There is nothing illegal about prospectively reducing pay, as long as the hourly rate is above the minimum wage.

[Hat tip: Workplace Prof Blog]

Do you know? How to handle an EEOC or OCRC charge

It’s no secret that in a down economy, the number of employment-related claims rise. To file a claim under any of the federal employment discrimination statutes, an employee must first file a charge with either the EEOC or the OCRC. The same does not hold true under Ohio’s parallel statute. An employee can directly proceed to court under Ohio law without first stopping at one of the administrative agencies. Yet, more and more employers are receiving discrimination charges from these agencies.

Do you know what to do when you are served with such a charge? Today, I’m sharing Business Management Daily’s 10 tips to help guide you through your next EEOC or OCRC charge, hopefully to safe, no-probable-cause, landing (with my own editorial comments, for good measure):

1. Tell the whole story

For many disgruntled employees, an agency charge is the first and only step they take against a business. Often, employees simply go away if the agency dismisses their claim, and never resurface in court. Thus, it’s important to try to nip the claim in the bud painting as complete of a picture as necessary. The agency will want to see that a legitimate business reason existed for the challenged action.

2. Use documentation

Documents supporting your version of events should be included with the response. If you omit them, the agency will likely ask for them anyway, and may think that you had a motive for not originally including them. Any documents that can verify what you say happened actually did happen will go a long way to having the charge dismissed.

3. Verify the response’s accuracy

Anything you submit to an agency can be used in a later lawsuit, which can prove damaging if the employee’s attorney can prove an untruth.

4. Highlight consistent past decisions

One of the best ways to demonstrate that unlawful discrimination did not motivate a decision is to highlight the same actions against similarly situated employees outside of the charging party’s protected class.

5. Remember, the agency doesn’t know your business

In telling your story, details about your business will help the agency understand your actions. The decision maker may not be able to readily discern the reasons why the employee’s actions merited termination without some context about your business, its operations, and its policies.

6. Maintain confidentiality

Information about the charge should be on a need-to-know basis, especially if you still employ the charging party. If the agency plans on contacting current employees as part of its investigation, let them know that they should cooperate and be honest. It also is a good idea, though, to have your attorney sit down with any witnesses ahead of time so that you have some idea what they are going to say. Remember, though, it is illegal to retaliate against an employee for cooperating in an investigation, even if they sell you down the river.

7. Be prompt and cooperative

Don’t let the agency think that you are blowing them off or stonewalling. If you need an extension, ask for it.

8. Work with legal counsel

A discrimination charge is often the first step in a chain of legal events. What you tell the agency will not only be used by agency to adjudicate the charge, but also by the employee in a later lawsuit. If you are not going to have an attorney investigate the claim and prepare the response, at least have a lawyer review a draft before you file it.

9. Contact your insurer

If your employment-practices liability policy includes discrimination charges, failing to timely let the insurer know of a charge could result in denial of coverage for the charge and all subsequent legal claims.

10. Preserve all documents

Courts are increasingly less tolerant of companies that fail to adequately preserve relevant evidence. When you receive an administrative charge, collect and preserve all documents that could be relevant. You should also suspend any routine practices that could result in the destruction of relevant records, particularly electronic information like emails.

---

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.