Showing posts with label legislation. Show all posts
Showing posts with label legislation. Show all posts

Monday, July 28, 2014

“Unionism” as a protected class?


Way back in 2012, the New York Times published an op-ed titled, A Civil Right to Unionize, which argued that Title VII needs to be amended to include “the right to unionize” as a protected civil right. At the time, I argued that including “unionism” as a protected class was the worst idea ever. Apparently, at least one Congressman disagrees with me.

MSNBC is reporting that later this week Rep. Keith Ellison (D-Minn) “plans to unveil legislation that would make unionization into a legally protected civil right,” on par with “race, color, sex, religion and national origin.” His goal is to make it “easier for workers to take legal action against companies that violate their right to organize.”

I agree with Representative Ellison that employees should never be fired for “expressing an intent to support union activity.” The problem with his idea, however, is that this is a right that the law already protects. Sec. 8(a)(3) of the National Labor Relations Act makes it an unfair labor practice for an employer … by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization.”

So there is no mistake on how I feel about this proposal, here’s what I said in March 2012, in response to the Times’s op-ed on this issue:

With apologies to union supporters, there is no reality in which “unionism” exists on the same level as race, sex, disability, or the other protected classes. The “greatest impediment” to unions isn’t “weak and anachronistic labor laws.” It’s intelligent and strong-willed employees who understand that whatever benefit they might receive from a labor union is not worth the dues that come out of their paychecks.

And, the reality is that despite all of this pro-union rhetoric, labor unions are doing just fine without any additional help. Unions wins more than two-thirds of representation elections. All this proposal does is increase the burden for employers, without providing any appreciable benefit to employees — which is why I feel comfortable asking if this proposal is the worst idea ever.

There is no chance this bill will go anywhere but the legislative trash heap if it’s introduced as promised. Nevertheless, it serves as a good reminder that there exists legislators who want to make you job as an employer harder than it already is.

Thursday, April 11, 2013

New bill seeks to extend comp time to private employers


One question employers ask me all the time is whether they can provide employees comp time (extra time off) in lieu of overtime. For private-sector employers, my answer is always the same—no.

I am hoping, however, that I soon may have to change my answer. Earlier this week, the Working Families Flexibility Act of 2013 [H.R. 1406] was introduced in Congress.

This bill would do all of the following:

  • Permit employers to provide compensatory time off, earned at the rate of 1.5 hours per hour of overtime worked, in lieu of overtime pay.
  • Provide that any comp time program must be supported by a written agreement.
  • Allow employers to exclude from any comp time program employees who have worked less than 1,000 hours in the prior 12 months.
  • Cap the annual comp time allotment at 160 hours per employee.
  • Require that employers pay out any unused comp time at termination.
  • Permits employees to use comp time upon reasonable notice, unless it unduly disrupts the employer’s operations.

The FLSA already provides similar rights to public sector employers. It’s about time that the law is changed to provide the same rights to those in the private sector. I’ll keep everyone updated if there is any movement on this bill.

Tuesday, February 26, 2013

Ohio attempts to ban employers from seeking social media passwords (take 2)


Last week, seven Ohio democratic senators introduced Senate Bill 45, which would prohibit employers “from requiring an applicant or employee to provide access to private electronic accounts of the applicant or employee.” It is identical to last year’s S.B. 351, which never made it out of committee. I have a feeling this year’s S.B. 45 will meet a similar fate, which is a good thing. For an analysis of what this bill says, you can read last year’s blog post on S.B. 351.

This bill has lots wrong with it.

  1. It attempts to add to Ohio’s protected classes. It would elevate asking an employee for a social media login or password to the same level of importance  as discrimination based on race, sex, religious, national origin, age, disability, and military status. For a practice in which few, if any, employers engage, such protections are over reaching and beyond ridiculous.

  2. It contains no exceptions for internal investigations. Suppose, for example, Jane Doe reports that a co-worker is sending her sexually explicit messages via Facebook. You have an absolute duty under both Title VII and Ohio’s employment discrimination statute to investigate and take whatever remedial action is necessary to ensure that any misconduct ends. Yet, this bill would prohibit you from even asking the accused to provide access to his Facebook account as part of your investigation.

  3. It contains no exceptions for regulated industries. For example, registered representatives have special rules that dictate what they can or cannot say to clients and prospective clients via social media. FINRA requires employers to track and maintain records of the communications between registered reps and the public. Yet, this bill would prohibit a securities firm from requiring its registered reps to turn over these communications. It would also prohibit the firm from even asking for access to a rep’s social media account to investigate a customer complaint or regulatory issue.

  4. Check out the penalties. In addition to civil fines, violations bring into play the full panoply of damages available under Ohio’s civil rights statute, including compensatory damages, pain and suffering, emotional distress, and punitive damages.

Just because something is a bad HR practice does not mean we need a law to regulate it. Nevertheless, the solution proposed by S.B. 45 has so many problems that, as proposed, it presents an unworkable and dangerous solution to an illusory problem.

photo credit: totumweb via photopin cc

Friday, October 19, 2012

The real problem with individual liability


As Senate Bill 383—Ohio’s attempt at comprehensive employment discrimination reform—weaves its way through the legislative process, a lot of blood is going to be spilled. In fact, it started yesterday in the comments to my post discussing the legislation.

One of the key battlegrounds will be the issue of whether Ohio’s discrimination law should provide for liability of managers and supervisors for their own individual acts of discrimination. My friends from the plaintiffs’ bar (and, yes, they are my friends) accuse me of protecting those who should be punished. Nothing could be less accurate.

To put this issue into context, I need to take a step back and explain why individual liability is an issue at all. It is universally accepted that Title VII does not provide for the individual liability of supervisors and managers. Ohio’s counterpart, however, is different. In 1999—in Genaro v. Central Transport—the Ohio Supreme Court held that contrary to federal law, Ohio’s state employment discrimination statute renders supervisors and managers personally liable for their own discriminatory acts.

S.B. 383 eliminates this difference, and brings Ohio’s statute in line with its federal counterpart by eliminating individual liability.

Opponents of this legislation argue that individual liability for managers and supervisors is needed to properly deter discriminatory and harassing behavior and hold accountable those who perpetrate it.

This argument is a fallacy. Employees aggrieved by invidious and intentional discrimination or harassment have claims available against the individual perpetrators—assault, battery, intentional infliction of emotional distress, invasion of privacy, and defamation, to name just a few. These civil remedies are in addition to criminal penalties that one can seek for the most egregious misconduct.

Opponents of this legislation argue that it protects sexual predators.

In addition to being offensive, headline grabbing hyperbole, this argument also is a fallacy. If you believe that the employment discrimination laws should punish predatory behavior, then the availability of a remedy should neither depend on the employment status of the accused, nor the statute under which the suit is brought. Yet, currently, only managers and supervisors can be held liable. One can never sue a non-supervisor or non-managerial co-worker for discrimination, no matter how bad the conduct. Moreover, one can bring suit against a manager or supervisor under state law; federal law provides no such remedy. If we are really concerned about punishing predators, then we shouldn't differentiate between supervisors and non-supervisors, or between state and federal laws.

Opponents of this legislation argue that the only reason employers want to eliminate individual liability is to expand the availability of the removal of cases to federal court.

This argument is also a fallacy. When an Ohio plaintiff sues a non-Ohio company in state court under state law, the employer can take the case to federal court. Adding a local manager or supervisor as a defendant eliminates this possibility. The reality is that if a plaintiff wants to keep a case in state court, he or she will find a cause of action to name a non-diverse individual defendant, whether or not a statutory claim exists against that individual under the employment discrimination statute.

By focusing on the rare example of a workplace sexual predator, opponents of S.B. 383 gloss over the real harm caused by individual liability. Consider this example. Jane Doe, a supervisor for ABC Company, has to fire a poor performing employee. She has counseled the employee repeatedly for the past two years, but his performance has not improved. Unfortunately for Jane Doe, this employee happens to be the only African-American in her department. Five years after the termination, Jane Doe’s doorbell rings at 9 p.m. She answers her apartment door to find a process server, lawsuit in hand. The employee she had terminated five years earlier has sued Jane Doe, in addition to her company, for race discrimination. Ms. Doe had done nothing other than her job. Now, she is forced to defend against allegations of discrimination and bigotry.

This example is much more common than the workplace sexual predator that the opponents of S.B. 383 hold out as the standard bearer. There is little, if any benefit to keeping individual liability as a part of Ohio’s employment discrimination statute, and it is a key facet of this reform that must become part of the law of this state.

Thursday, October 4, 2012

New pregnancy discrimination legislation is unneeded, redux


On September 19, the Pregnant Workers Fairness Act [pdf] was introduced in the Senate. It is identical to the bill by the same name introduced in the House back in May. The bill would amend Title VII to to require an employer to make a reasonable accommodation for pregnancy, childbirth, and related medical conditions. At the time, I critiqued the bill as unnecessary:

The Pregnancy Discrimination Act [already] requires employers to treat pregnant employees the same (no better and no worse) as other employees based on their ability or inability to work. In other words, the law already requires that employers provide the same accommodations for an expectant worker that you do for any un-pregnant employee unable to perform his or her regular job duties.

Have you ever offered light duty to an employee returning from an injury? Have you ever reassigned job functions to assist an injured worker? Unless you are among the tiniest minority of employers that provides no accommodations for any employees’ medical issues or injuries, then the PDA already requires you to accommodate your employees’ pregnancies.

Last Friday, HuffPost Live ran a story on the re-introduction of this legislation. The host, Nancy Redd, cited my May blog post as support for the argument that this bill is unneeded. Some on the panel took issue with those that argue against the need for this legislation.

So that my position is crystal clear, I am not saying that pregnant women should be discriminated against. What I am saying, however, is that because the law requires employers to accommodate pregnant women at least at the same level as they accommodate any other employee with a similarly disabling short-term medical condition, Title VII already guarantees the rights laid out in the Pregnant Workers Fairness Act.

In other words, we do not need legislation to duplicate rights that already exist. If employers are not granting these rights, and pregnant workers are not receiving the accommodations they need and are requesting, then pregnant workers should be filing discrimination lawsuits. The answer lies in educating employers on their obligations under existing laws, not passing new, duplicative ones.

Tuesday, May 29, 2012

Ohio joins the fray on employers asking for social media passwords


It was only a matter of time before Ohio joined the list of states to introduce legislation that would prohibit employers from asking for social media passwords. Senate Bill 351, introduced late last week, would amend Ohio’s employment discrimination statue to make it an “unlawful discriminatory practice” for employers to do any of the following:

  • Ask or require an applicant or employee to disclose usernames or passwords associated with, or otherwise provide access to, a private electronic account of the applicant or employee;
  • Fail or refuse to hire an applicant for employment, or discharge, discipline, threaten to discharge, discipline, or otherwise penalize an employee, if the applicant or employee refuses.

The bill defines “private electronic account” as “a collection of electronically stored private information regarding an individual, including such collections stored on social media internet web sites, in electronic mail, and on electronic devices.” It then broadly defines “social media internet web site” as “an internet web site that allows individuals to do all of the following”:

  1. Construct a public or semipublic profile within a bounded system created by the service;
  2. Create a list of other users with whom the individual shares a connection within the system; or
  3. View and navigate the list of users with whom the individual shares a connection and those lists of users made by others within the system.

The bill does not prohibit an employer from monitoring the electronic accounts of employees or applicants on the employer’s own Email or Internet system.

As far an enforcement, the bill would permit aggrieved individuals to file a charge of discrimination with the Ohio Civil Rights Commission, or a private cause of action in court. It also allows the OCRC to levy fines of up to $1,000 for the first violation and up to $2,000 for each subsequent violation.

I’ve said it before and I’ll say it again, this is not a problem that needs fixing. Companies simply aren’t engaging in the type of conduct this bill seeks to legislate. I am troubled that the path this legislature chose is to seek to make this an unlawful discriminatory practice, on the same plane as race, sex, age, and disability discrimination. Moreover, there are no exceptions for industries that might have a legitimate reason to know what applicants or employees are doing on social sites (schools, police departments, financial services). The lack of any exceptions is a glaring omission from this legislation.

This bill is in its infancy. I will continue to monitor its status and update you with any movement in Columbus.

Wednesday, May 9, 2012

New pregnancy legislation is unneeded; the law already requires accommodation of expecting employees


On the New York Times’s Motherlode blog, KJ Dell’Antonia discusses her belief that we need another law to protect pregnant women in the workplace:

Pregnancy is specifically not covered under the Americans With Disabilities Act, which requires that employers provide reasonable accommodations to disabled employees who need them to do their jobs…. But to have a healthy pregnancy, women must make adjustments—call them accommodations—for the baby they’re carrying…. Pregnant women are protected by the federal Pregnancy Discrimination Act, but protection against discrimination does not require accommodation. Sometimes equal treatment is not enough to allow a woman to stay on the job—and no one benefits from pregnant women being forced to choose between her doctor’s advice and her supervisor’s demands.

Ms. Dell’Antonia then lends her support to a nascent piece of federal legislation, The Pregnant Workers Fairness Act.

I take issue with Ms. Dell’Antonia’s central premise that the Pregnancy Discrimination Act does not require accommodations for pregnant workers. The PDA requires employers to treat pregnant employees the same (no better and no worse) as other employees based on their ability or inability to work. In other words, the law already requires that employers provide the same accommodations for an expectant worker that you do for any un-pregnant employee unable to perform his or her regular job duties.

Have you ever offered light duty to an employee returning from an injury? Have you ever reassigned job functions to assist an injured worker? Unless you are among the tiniest minority of employers that provides no accommodations for any employees’ medical issues or injuries, then the PDA already requires you to accommodate your employees’ pregnancies.

We do not need legislation to require an employer to make a reasonable accommodation for pregnancy, childbirth, and related medical conditions. The PDA already implicitly allows for these accommodations. I’m not taking a stand against the rights of pregnant women (which I support). I am, however, taking a stand against duplicative legislation, regardless of the soundness of the policy or the worthiness of the beneficiary.

Wednesday, April 11, 2012

Maryland becomes 1st state to ban requiring employees’ social media passwords


750px-Flag_of_Maryland.svg The public outcry against employers requiring the job applicants turn over their Facebook passwords has resulted in legislation. Maryland has become the first state to prohibit employers from requiring or seeking user names, passwords, or any other means to access Internet sites such as Facebook as a condition of employment. Demonstrating the outrage over this issue, the measure passed both house of Maryland’s General Assembly with 96% support.

The law—entitled, “User Name and Password Privacy Protection and Exclusions” (full text here [pdf])—prohibits Maryland employers:

  • from requesting or requiring that an employee or applicant disclose any user name, password, or other means to access a personal Internet account;
  • from taking, or threatening to take, disciplinary actions for an employee’s refusal to disclose certain password and related information; and
  • from failing or refusing to hire an applicant as a result of the applicant’s refusal to disclose certain password and related information.

The law exempts employers that are conducting investigations into compliance with securities or financial laws or regulations, and investigations into the unauthorized downloading of the employer’s proprietary information or financial data to an employee’s personal website.

Eric Meyer, at The Employer Handbook blog, nicely summarizes the main critiques of this bill:

[T]he Maryland Chamber of Commerce opposed the prohibition because the bills did not acknowledge there could be legitimate issues for some employers to want to review applicants' or workers' social media messages.

What concerns me is that there are no carve-outs for public agencies that protect and serve the public. I can understand why a police department may need to fully vet its candidates by making sure that applicants and officers don’t have hate speech towards a particular protected class, for example, on their Facebook page. As I imagine that this information could be used to overturn arrests and indictments.

While I agree with Eric’s take, my critique is more about the small percentage of employers who engage in this practice:

Legal issues aside, this story raises another, more fundamental, question—what type of employer do you want to be? Do you want to be viewed as Big Brother? Do you want a paranoid workforce? Do you want your employees to feel invaded and victimized as soon as they walk in the door, with no sense of personal space or privacy? Or, do you value transparency? Do you want HR practices that engender honesty, and openness, and that recognize that employees are entitled to a life outside of work? … Requiring passwords is not smart.

This law affects you only if: 1) you engage in business in Maryland; and 2) you are among what I believe is the small minority of business that are requiring applicants and employees to turn over social media logins and passwords. Nevertheless, I would expect other states to follow suit, and use the Maryland legislation as a model.

Even if few public sector employers, and fewer private sector employers, are engaging in this practice, this issue bears monitoring.

[Hat tip: The Hill]

Wednesday, June 8, 2011

A love letter to Connecticut (or, a modest proposal to bring jobs to Ohio)


Dear Connecticut,

I read on the Connecticut Employment Law Blog that your state legislature passed its controversial paid sick leave bill. Your Governor supports the measure and is expected to sign it. Beginning January 1, 2012, the law will mandate that many of your state’s employers with 50 or more employees provide 40 hours per year of paid sick leave to most full-time employees.

A few years ago, we Ohioans expected to vote on a similar measure via a statewide referendum. Our then-Governor (a Democrat) recognized the detriment such a measure would pose to our state’s ability to attract and retain the businesses we so sorely need. He struck a deal with the sponsoring labor unions pulling the Health Families Act from the ballot. Our state’s economy still isn’t great, but it’s better than it would have been if the Act had passed three years ago.

Connecticut Republican Representative John Rigby shares the same concerns about your state’s ability to attract and retain businesses (as quoted on NPR.org), “They’re going to have to shed jobs…. They’re going to have to let people go. They’re going to have to make a decision about whether to open the next brew pub in Connecticut or in Massachusetts or Rhode Island—states that are considered more business-friendly than our state.” Adds Kia Murrell, assistant counsel for the Connecticut Business & Industry Assoc. (as quoted on MSNBC.com), “Today is the worst possible time to add one more thing…. It’s one more nail in the proverbial coffin.”

Connecticut, when your businesses are ready to flee to avoid this stifling mandate, we are happy to take them and the jobs they bring along.

Love,

ohio_map 

Ohio, your (not quite) neighbor to the West

P.S.: Please help support a fellow labor & employment blogger, Daniel Schwartz, and click over to his Connecticut Employment Law Blog, which he re-launched yesterday with a brand new look and some cool new features.


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

Tuesday, March 29, 2011

Ohio House considering comp time bill (HB 61)


One of the biggest wage and hour mistakes a company can make is assuming that it is legal to pay comp time in lieu of overtime for any hours employees work in excess of 40 in a work week. Make no mistake, with the exception of state and local governments, it is illegal to pay comp time as a replacement for overtime wages.

Ohio House Bill 61, currently under consideration, is trying to change this rule for Ohio’s small businesses. HB 61 would allow workers to bank up to 240 hours of comp time per year. At the end of a year, employers would have to pay out overtime wages for any unused comp time. Covered workers would have the right to chose between comp time and overtime pay. Employers would be prohibited from requiring workers to elect comp time, in addition to threatening, intimidating, or firing workers who choose overtime wages.

Here’s the catch: this bill only applies to those small businesses covered by Ohio’s Fair Wage Standards Act but not covered by the Federal Fair Labor Standards Act—those that have gross annual gross sales between $150,000 and $499,999.99. Nevertheless, according to PolitiFact Ohio, this bill has the potential to reach at least 10,000 Ohio small businesses.

HB 61 is a significant move in the right direction to making Ohio a more business-friendly environment. By allowing small businesses the ability to offer comp time to employees, Ohio’s small businesses will be able to provide workplace flexibility that currently does not exist and that employees covet. This benefit will help Ohio attract and maintain the small businesses we need as the backbone of our economic recovery.


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

Thursday, November 18, 2010

The failure of the Paycheck Fairness Act ends the golden age of employment law


The Democrats swept into office in January 2009 with promises of paradigm-shifting labor and employment law reforms: card check union recognition, Title VII coverage for sexual orientation and gender identity, expanded FMLA coverage, the end of arbitration agreements, and paid sick leave are but a few of the campaign issues on which the Democrats won the the White House and substantial majorities in both halves of Congress.

Yesterday, the Senate failed to vote to close debate on the Paycheck Fairness Act. That vote, coupled with the incoming Republican majority in the House, means that we likely have seen the end of any significant employment law reforms by the Obama administration’s first (only?) term. The scorecard is stunning. The lone significant employment law legislation to become law under Obama’s watch is the Lilly Ledbetter Fair Pay Act, which, in and of itself, is not all that significant. It affects the timeliness of discrimination claims, and potentially exposes businesses to more lawsuits. Yet, if you ranked the various pieces of legislation discussed and debated over the last two years, Ledbetter would rank pretty low in terms of societal impact.

In comparison, President Bush passed three key pieces of employment legislation during his last year in office: the FMLA military leave amendments, the ADA amendments, and the Genetic Information Nondiscrimination Act. The significance of these three laws will be felt for years to come.

In early 2009, I joined the chorus of employment lawyers who believed that President Obama would change the landscape of labor and employment law. No one ever likes to be wrong. For the sake of American businesses, many of which are still trying to climb out of the worse recession in 80 years, I have never been so happy to have been off the mark.


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

Monday, October 4, 2010

Off to see the Chamber, the wonderful Chamber of Commerce


Ohio_Statehouse_columbus Today, I am traveling to Columbus for the Ohio Chamber of Commerce’s Employment Law Committee meeting. For the uninitiated, the Ohio Chamber is our state’s voice for businesses and their policy interests. The Employment Law Committee tracks, dissects, and lobbies regarding employment-related legislation pending at the Statehouse. According to the agenda for our meeting [available as a pdf] we will discuss the following legislation:

  • Protect the rights of employees to decide whether to be represented by a collective bargaining unit through a private ballot process.

  • Reduce inconsistencies and duplication between state and federal employment laws.

  • Push for a law that allows an employer to offer the existence of an anti-discrimination policy as an affirmative defense to a discrimination claim.

  • Maintain the solvency of the state’s unemployment compensation trust fund by promoting measures that return unemployed workers to the workforce.

  • Advance legislation that models the federal process for claims filed at the Ohio Civil Rights Commission.

Later this week, I’ll report specific items of interest discussed at the meeting.


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

Tuesday, September 21, 2010

Paycheck Fairness Act poised for passage - This is a huge deal for employers


The Washington DC Employment Law Update is reporting that the Senate is set to start debate on the Paycheck Fairness Act, perhaps as early as this week. Employers, this news is huge. The Paycheck Fairness Act has the potential to revolutionize (and not in a good way) companies' payroll practices. For more on why you should be very concerned about this legislation, please take a few moments and read my summary from a few months ago -- What is the Paycheck Fairness Act and why should employers be concerned? Then, take a few more moments and call or email your Senator to express your opinion that this legislation should not pass:

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

Thursday, August 26, 2010

Wal-Mart seeks Supreme Court review of billion-dollar class action


Yesterday, the nation’s largest private employer asked the Supreme Court to review the class certification of the nation’s largest employment discrimination lawsuit. The case—Dukes v. Wal-Mart—is remarkable for several reasons:

  1. It has been pending for nine years, and yet the parties are still dealing with the preliminary procedural issue of whether this case will proceed as a class action.
  2. The plaintiffs seek a nationwide class, to include every woman employed by Wal-Mart for the past decade, in any of Wal-Mart’s 3,400 separately managed stores, across 41 regions and 400 districts, in any of 53 departments and 170 different job classifications. In other words, there is not much similar about these women other then the fact that they all worked for Wal-Mart.
  3. The potential class is more than 1.5 million women.
  4. The potential damages are billions.

Steven Greenhouse, at the New York Times, frames the dispute on the class certification issue:

Mr. Boutrous [one of Wal-Mart’s lawyers] said that even if the seven lead plaintiffs had suffered discrimination, that did not mean there was across-the-board bias at thousands of stores nationwide. He said the women’s claims should be tried individually, or if a manager discriminated against a store’s 200 women employees, then perhaps as a 200-member class action for those women.

Joseph Sellers, a lawyer for the plaintiffs, said the case should be a class action because Wal-Mart had and still has a common set of personnel policies at all of its stores. “We regard them as cookie-cutter operations that are similar to each other,” he said.

Wal-Mart—which strongly disputes liability and describes itself as “a leader in fostering the advancement and success of women in the workplace”—has asked the Supreme Court to review the propriety of a class action seeking money damages under the class action provision for injunctive or declaratory relief. The New York Times has available for download a PDF of Wal-Mart’s brief.

There is a lot at stake for businesses in the Supreme Court’s decision of whether to accept review of this class certification. A refusal by the Supreme Court to hear this case, or, worse yet, an affirming of the class by the Court, would greatly increase the risk for employers defending employment decisions (and resulting class actions) that involve disparate groups of employees, reporting to different managers, and working in different facilities. It would result in larger classes with a higher potential for recovery, neither of which is good for companies. It’s safe to say that the class action epidemic in this country would get a whole lot worse.

I am certain I will be one of many blogger commenting today on this case. For a snapshot of what some others have already said, take a look at the following:


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

Tuesday, July 20, 2010

Do you know? What is the Paycheck Fairness Act are why should employers be concerned?


Today’s USA Today reports that the Obama Administration is going to make a renewed push for the passage of the Paycheck Fairness Act:
President Obama plans to press Congress today to pass pay-equity legislation that would make it easier for women to sue employers who pay them less than their male counterparts, the White House said Monday. “Women deserve equal pay,” White House senior adviser Valerie Jarrett said in an interview, citing government statistics that show women earn 77 cents for every dollar men earn. “It’s a very fundamental right.”
It would be hard to make an argument against this bill if all it did was guarantee equal pay for equal work. The Paycheck Fairness Act, however, goes much further by limiting the ability of businesses to defend against such claims, which should make businesses very concerned that this issue has reached the top of the President’s agenda.

The Paycheck Fairness Act (the full text of which is available here) makes 5 key changes to federal wage and hour laws:
  1. Modified defense. Paycheck Fairness would impede the ability of employers to defend against sex discrimination wage payment claims. An employer can currently defend against an Equal Pay Act claim by showing that the pay difference between men and women was caused by “any factor other than sex.” Paycheck Fairness would alter this standard by requiring employers to show “a bona fide factor other than sex, such as education, training, or experience,” that is not sex-based, but is job-related to the position and consistent with business necessity. Moreover, even if an employer makes this showing, the employee could still prevail by showing that the employer refused to adopt an alternative employment practice that would serve the same business purpose without producing the same wage differential.
  2. Enhanced damages. The current Equal Pay Act’s remedies include back pay and liquidated damages that are capped at the amount of the back pay. Paycheck Fairness would steepen the remedies for sex discrimination in wage payments by allowing for uncapped punitive and compensatory damages.
  3. Non-retaliation. Paycheck Fairness would prohibit an employer from retaliating an employee who inquired about, discussed or disclosed the wages of the employee or another employee, unless discussing wages is part of an employee’s essential job function. While the National Labor Relations Act already covers this conduct, Paycheck Fairness’s enhanced remedies are much more extensive than those available under the NLRA.
  4. Class actions. Paycheck Fairness would change sex discrimination wage payment class actions from “opt in” classes to “opt out” classes, making classes in these cases larger and easier for employees to join.
  5. Reporting. Paycheck Fairness would require the EEOC to issue regulations on the collection of pay information from employers. It would also require the Office of Federal Contract Compliance Programs to use its “full range of investigatory tools” for investigation, compliance, and enforcement.
Employers should be very worried about the prospects for Paycheck Fairness. If it passes, employers will face increased risk and higher damages for sex discrimination wage claims. Perhaps the heavier burden, though, will be the significant compliance obligations from newly-empowered federal agencies.


Monday, March 29, 2010

Bill seeks to snuff out discrimination against smokers


Take a look at H.B. 470, introduced last week in Ohio’s legislature. It provides: “No employer shall discharge without just cause, refuse to hire, or otherwise discriminate against any person with respect to hire, tenure, terms, conditions, or privileges of employment, or any matter directly or indirectly related to employment, on the basis that the person smokes tobacco.” In other words, it would make “smoking” a protected class, akin to race, sex, disability, etc. The law would protect an employer’s right to adopt and enforce rules prohibiting employees from smoking tobacco, or smelling like tobacco smoke, during the work hours.

As is the case with most anti-discrimination laws, this bill provides for the right to file a lawsuit and recover damages for violations. But, here’s where this bill gets really silly. In addition to civil damages, it also provides for escalating fines of $25,000 for the first offense, $50,000 for the second, and $100,000 for each thereafter.

This law would not be an anomaly. In fact, 29 states plus the District of Columbia have laws that elevate smoking to a protected class. The fact that a majority of states protect smokers as a protected class merely begs the question of whether these laws make good policy.

Compensation Today offers three reasons against a blanket ban on the employment of smokers, and a suggested best-practice:

    1. Like any policy that regulates off-duty conduct, it is difficult to enforce. (Do you really want to run around sniffing your employees for telltale signs of smoking, as they walk in the door each morning?)
    2. You may find that the employee smoking policy limits your pool of qualified job applicants, especially among certain age groups, crafts, or professions.
    3. Even nonsmokers sometimes resent these policies, on principle, as unwarranted intrusions into employee private affairs.

A better approach is to design a workplace smoking policy that regulates smoking in a manner that fits your legitimate business needs. Typically, this approach addresses how to deal with employee smoke breaks more effectively, and involves the discipline of those who abuse break time. And, if you cannot make health insurance distinctions, consider including smoking cessation programs in any health and wellness initiatives you sponsor.

While this proposed middle ground seems reasonable, employers should be free to control health care costs by enacting policies against self-inflicted harm, even if it may single out a class of employees. This situation is different than employers that use high medical costs as a proxy for disability discrimination. While smoking may be an addiction, it is one that started by a personal choice. We do not need to legislate against employment decisions based on a legitimate reason (high health care costs) that do not implicate a congenital characteristic.


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

Tuesday, March 23, 2010

Do we really need to pump up workplace lactation rights?


Philly.com ran a story last week by Philadelphia attorney Beth Thorne, who recounted her lack of privacy at work to express breast milk. Ohio, like Pennsylvania, is in the majority of states that do not have a law that requires employers to accommodate lactating moms. Some Ohio legislators want to change this omission.

A bill has been drafted – but not yet introduced – that would amend Ohio’s discrimination statute to include “lactation” as a protected class. This law would expand the prohibition against discrimination because of or on the basis of sex to include discrimination because of or on the basis of lactation. It would also require employers to provide lactating employees “reasonable, unpaid time each day” for the expression of breast milk, and further require employers to make a reasonable effort to provide a sanitary room or area (other than a toilet stall) for this purpose.

While this law is noble in purpose, I question whether it is needed in the first place.

  • Ohio’s law against sex discrimination likely already covers lactation. In Allen v. totes/Isotoner Corp., two of the most conservative justices of the Ohio Supreme Court concurred that lactation is covered by Ohio’s proscriptions against employment discrimination on the basis of sex/pregnancy. While the majority dodged this issue, the Court gave clear direction of how it rule if the issue arose again. We should not be in the business of unnecessarily amending laws.

  • Is this really a problem that needs to be fixed? Are lactating employees really being denied the opportunity to pump? The empirical evidence would suggest that the answer is no. In my 13 year career I’ve never come across the issue. LEXIS reveals scant few cases on this topic, even in jurisdictions that have workplace lactation laws. So, if this is not a problem that needs correction, what reasons – other than placating certain special interests – call for the passage of workplace lactation legislation?


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

Monday, March 22, 2010

House passes Health Care Bill – What does this mean for employers?


I have not read any version of the health care bill. In fact, anyone outside of Capitol Hill, the White House, lobbyists, or some major news agencies who tells you otherwise is probably lying to you. So, I don’t have a lot to say about this legislation. In fact, I’m not embarrassed to say that I have not yet formed an opinion pro or con about it. What is embarrassing is the partisan politics that this issue has created. No one can honestly say that they are in favor of the bill because they are blue or against it because they are red. They are dishonest opinions based solely on party lines.

So, what can I tell you about this legislation? Employers are not required to provide health insurance to their employees. Instead, employers with 50 or more employees who do not provide health insurance will be fined $2,000 per employee. Employers smaller than 50 employees likely will not feel much of an effect from these changes.

For more on this important issue, I recommend reading Dan Schwartz’s post at the Connecticut Employment Law 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.

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.

Thursday, February 18, 2010

Ohio’s efforts to create its own WARN Act hit all the wrong notes


Ohio House Bill 434 – which would require employers to give advanced notice of mass layoffs, worksite closings, and transfers of operation – is currently pending in the House Commerce and Labor Committee. The bill would create a maxi-WARN for Ohio employers, and goes above and beyond the requirements of the federal WARN statute:

  • Where WARN requires 60 days notice of mass layoffs of plant closures, HB 434 requires 90.

  • HB 434 requires 120 days notice for employment losses of 250 or more employees.

  • HB 434 defines “affected employee” and “employment loss” more broadly than the federal WARN Act.

  • HB 434 expands the depth of information require in the written notice, including  to the written notice required by the federal WARN Act.

The killer provisions in the bill, however, are the damages and penalties, which are severe:

  • Double back pay for each calendar day of the violation, plus

  • The value of benefits from the employer’s employee benefit plan for the entire advance notification period, including the cost of medical expenses that the employee incurred during the employment loss that would have been covered under the employee benefit plan if the employment loss had not occurred, plus

  • Other economic damages and exemplary damages suffered by the affected employee and caused by the violation, plus

  • Reasonable attorney’s fees and costs, plus

  • Civil penalties of $500 for each calendar day of the violation multiplied by the number of employees who suffered an employment loss, increased to $1,000 if the employer acted in bad faith through intentional, willful, or reckless conduct.

Moreover, under the federal WARN Act, an employer can pay in lieu of giving notice. In other words, instead of giving 60 days notice, the employer can simply pay the affected employees 60 days of severance pay, and effectively avoid liability. HB 434 limits an employer’s ability to pay in lieu. An employer cannot pay in lieu (and avoid liability) if:

  1. The payments were voluntary and unconditionally paid in an amount that is less than the value of the wages and benefits to which the affected employee was entitled during the notice period; or

  2. The payments were made pursuant to contractual obligations of the employer.

If passed, this bill would be disastrous for Ohio’s efforts to recover economically. As the last 18 months have shown us, businesses sometimes have to layoff employees or close their doors. Because this law will make it impossible for businesses to do so without a severe economic penalty, it will act as a strong disincentive for businesses to open in, expand in, or relocate to our state.

Everyone feels badly about good people losing jobs because of the economy. The answer, though, is to create an environment to fosters job growth, not one that erects a fence at our border to keep businesses – and jobs – out.


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.