WIRTW #151 (the election recap edition)

Here’s my 140-character recap of Tuesday’s election: Obama did not learn from Clinton’s 92 – 94 mistakes. Cost Dems huge. We’ll see if Boehner learned anything from Gingrich’s post-1994 gaffes. Craving a more substantive analysis of the 2010 mid-term elections?

• State Secret Ballot Measures – from Workplace Prof Blog

• Post-elections Implications for Labor Bills in Congress – from Joe’s HR and Benefits Blog

• Impact of Midterm Election on Employment Law – from The Word on Employment Law with John Phillips

• Ohio: More Business-Friendly Approach Is Likely – from HR Hero’s Human Resources News

• Now That the Election is Done and Republicans Own the House, What Does that Mean for Labor? – from Wisconsin Employment & Labor Law Blog

• What did Election Day 2010 mean for the Healthy Workplace Bill? – from David Yamada’s Minding the Workplace

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

Discrimination

• Parents Need Not Apply – from WorkLife Law Blog

• Among Recent Lawsuits Filed By The EEOC, Disability, Retaliation Claims Most Prevalent, Employer Size Varies – from Hunton Employment & Labor Law Perspectives™

• Patience Is A Virtue With Workplace Investigations – from Colorado Employer’s Law Blog

• What Does Climbing the St. Louis Arch Have To Do With Proving Discrimination? Learning Employment Discrimination Law Basics From a Classic Civil Rights Story – from George’s Employment Blawg

• Halloween Harassment – from Abovethelaw.com

• Muslim Truck Driver Refuses to Deliver Alcohol – from Philip Miles’s Lawffice Space

Employee Relations

• “Use good judgment in all situations” – from Walter Olson’s Overlawyered

• Fired and Need Legal Advice? There’s an App for That – from Robert Ambrogi’s LawSites

• Business Case for Work/Life Balance--Really? – from The Careerist

• HR Plays Too Much Defense – from Fistful of Talent

• “Hire Attitude vs Aptitude”: A Lesson from Disney – from Michael Haberman’s HR Observations

• Referring to Former Boss as Slimebag Does Not Constitute Disparagement, At Least in Ohio – from Fitzpatrick on Employment Law

• Ohio School Employees Can Still Be Fired for Criminal Past – from employeescreenIQ Blog

Social Networking and Technology

• NLRB Alleges that Connecticut Company Illegally Fired Employee Over Comments on Facebook – from Dan Schwartz’s Connecticut Employment Law Blog

• Judge Obtains Protective Order Based on a Tweet – from Molly DiBianca at the Delaware Employment Law Blog

• Florida Issues New Jury Instructions: No Tweeting, Blogging, Net Research, etc. – from Sharon Nelson’s Ride The Lightning

Wage & Hour

• Strippers Claim Coverage Under FLSA And File Class Action! – from Wage & Hour - Development & Highlights

• USERRA coverage may be triggered prior to formal military orders – from Employment Law Matters

Trade Secrets & Competition

• Hire a Great Candidate, But Hopefully Avoid a Lawsuit – from Trade Secret / Noncompete Blog

• Just Because Trade Secrets Were Misappropriated Doesn’t Mean Unjust Enrichment Occurred – from Trade Secrets Blog

• Non-competition covenants’ restriction on innovation – from Maryland Employment Law Developments

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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.

6th Circuit holds that an individual must be disabled to challenge a selection criteria under the ADA (but does it matter?)

Employee use of prescription drugs has been in the news lately. Last week, the New York Times ran a piece discussing the drug testing of employees for prescription medications. The article discussed Dura Automotive Systems, which, over concerns about drug use and worker safety, hired an independent company to administer random drug tests of its employes. It chose to screen for 12 types of drugs, including hydrocodone and oxycodone. Seven Dura employees tested positive for lawful prescription medications and sued following their terminations.

Yesterday, in Bates v. Dura Automotive Systems, Inc. (6th Cir. 11/3/10) [pdf], the 6th Circuit dismissed the claims of any of the plaintiffs who are not disabled under the ADA.

Section 12112(b)(6) of the ADA prohibits discrimination based on qualification standards, employment tests or other selection criteria. It provides:

No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual [by] using qualification standards, employment tests or other selection criteria that screen out or tend to screen out an individual with a disability or a class of individuals with disabilities unless the standard, test or other selection criteria, as used by the covered entity, is shown to be job-related for the position in question and is consistent with business necessity.

The 6th Circuit concluded that the plain language of the statute barred non-disabled employees from pursuing a claim:

Although non-disabled individuals may bring claims under some provisions of the Act, the plain text of subsection (b)(6) only covers individuals with disabilities. The text of subsection (a) and (b)(6) specifically refers to “qualified individual[s] with disabilit[ies],” and not … a broader class of individuals such as “employees.” … A straightforward reading of this statute compels the conclusion that only a “qualified individual with a disability” is protected from the prohibited form of discrimination described in subsection (b)(6)…. Although other sections of the Act apply to non-disabled individuals, the Act’s primary purpose is to prevent discrimination against disabled individuals…. Interpreting subsection (b)(6) as being limited to individuals with disabilities better gives effect to Congress’s decision not to use the word “employees” in this subsection.

This case may end up being much ado about nothing. Because terminations occurred before Jan. 1, 2009, the 6th Circuit decided this case under the pre-amendment ADA, which had a might tighter definition of “disability.” As I have previously discussed, the ADA Amendments Act expands the definition of “disability” so broadly that virtually every employee with a medical condition could be considered “disabled.” Therefore, future drug testing cases likely will not be decided on the issue of whether the tested employees were “disabled.” Instead, courts will decide future cases on whether the drug testing was job related and consistent with business necessity—an affirmative defense under the ADA. For this reason, it is important for businesses to contemporaneously document the job nexus and business need for all employee drug testing.

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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.

Does your social networking policy violate federal labor laws?

It was only a matter of time before the NLRB inserted itself into the intersection of social networking and employment relations. It has Twitter account. Now, it has issued its first complaint challenging an employer’s social networking policy.

The NLRB has issued a complaint against a company that fired an employee after posting negative comments about her supervisor on her personal Facebook page. The Blog of Legal Times reports that the NLRB not only alleges that the employer illegally fired the employee for the posting, but that the company “maintained and enforced an overly broad blogging and Internet posting policy.”

An NLRB investigation found that the Facebook postings were “protected concerted activity,” and that the company’s blogging and Internet posting policy contained unlawful provisions, including one that barred employees from making disparaging remarks when discussing the company or supervisors and another that prohibited employees from depicting the company in any way over the Internet without company permission.

“Such provisions constitute interference with employees in the exercise of their right to engage in protected concerted activity,” the NLRB found.

This case could have far reaching implications for all employers—not just those that are collectively bargained. If the NLRB concludes that a singular posting on a personal website constitutes protected concerted activity, then it will be nearly impossible for an employer to regulate off-the-clock Internet activity. The NLRB will hold a hearing on this case on January 25, 2011. I will be very interested to read the ALJ’s decision.

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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.

Reading the tea leaves: Staub v. Proctor Hospital and the “Cat’s Paw”

Before we get into the specifics of the Staub case, let’s first discuss the relationship between a cat’s appendage and employment discrimination law. The “cat's paw” derives from a 17th century fable by French poet Jean de la Fontaine. In “The Money and the Cat,” a monkey tricks a cat into scooping chestnuts out of a fire so that the monkey can eagerly gobble them up, leaving none left for the cat. It generally describes a situation where one is unwittingly manipulated to do another’s bidding. Drawing the parallel between la Fontaine’s fable and discrimination law, one seeks to hold an employer (the cat) liable for the discriminatory animus of an employee who played no role in the decision, but nevertheless exerted some degree of influence (the monkey). As Mike Maslanka put it on his Work Matters blog, the question is what is an employer’s liability “when the guy who pulled the trigger is pure, but the guy who loads the gun is not?”

Thus, the argument in the case is framed like this:

• Employers argue that federal discrimination laws make the employer liable only for the actions of the employee or supervisor who takes the discriminatory action.
• Employees,  however, argue that the is enough that the person with the discriminatory animus (the money) played some role in the process, even if the decision maker (the cat) is completely unaware of the animus.

As for the specifics of the case, Staub brought his claim under USERRA, which, among other things, protects those in military service from discrimination upon their return to employment from active duty. Staub had been a long-time employee of Proctor Hospital before being called upon to serve in Iraq. Many at the hospital were critical of Staub’s military service because of the strain it put on those who had to cover from him in his absence. When the Vice President of HR, who held no hostility towards Staub, terminated him, he sued, claiming that although the decision maker was not personally biased against his military service, she fired him based on the hostility of Staub’s direct supervisors.

The 7th Circuit reversed a jury verdict for Staub, holding:

[W]here an employee without formal authority to materially alter the terms and conditions of a plaintiff’s employment nonetheless uses her “singular influence” over an employee who does have such power to harm the plaintiff for racial reasons, the actions of the employee without formal authority are imputed to the employer…. [W]here a decision maker is not wholly dependent on a single source of information, but instead conducts its own investigation into the facts relevant to the decision, the employer is not liable for an employee’s submission of misinformation to the decision maker.

In other words, under the 7th Circuit’s pronouncement of the cat’s paw, the employer can only be liable if the decision maker is only influenced by the animus of the non-decision makers.

Yesterday, the Supreme Court held oral argument [transcript, in pdf] in this case. It’s hard to read Supreme Court Justices at oral argument. Sometimes they play devil’s advocate, and sometimes they genuinely challenge the attorney. Regardless, I found the following question from Justice Breyer (one the Court’s more liberal justices) to the employer’s attorney to be insightful:

You have A and B, they are both supervisors; in the one case B fires the employee because he is in the Army, and he says it: Ha, ha, that’s why I’m doing it. In the second case he fires the employee … for a perfectly good reason, but A has lied about it. And the reason A lied about it was because she wanted to tell him a lie so B would fire the employee, and her reason is because he’s in the Army. Those two situations, the second seems to me one of … 80 million situations, fact-related, that could arise, and I don’t know why we want a special standard for such a situation. Why not just ask the overall question, was this action an action that was -­ in which the bad motive was a motivating factor. Forget psychoanalysis of A. B is good enough -- or vice versa.

I also found insightful the following exchange between Justices Alito and Kennedy and the employee’s attorney:

   Justice Alito: Even -- even if the employer at that time did every -- made every reasonable effort to investigate the validity of all the prior evaluations, still the employer would be on the hook?

   A: Yes. There is nothing in the statute or in the common law that creates a special rule for thorough investigation.

   Justice Kennedy: Well, that's a sweeping rule. I was going to ask a related hypothetical. Suppose the -- the officer who is in charge, charged with the decision to terminate or not to terminate says: I'm going to have a hearing. You can both have counsel. And you have who, is it -- suppose Buck -- suppose the two employees that were allegedly anti-military here testified and they said there was no anti-military bias, and the person is then terminated. Later the employee has evidence that those two were lying. Could he bring an action then?

   A: Yes. Yes.

   Justice Kennedy: That’s sweeping. That's almost an insurer’s liability insofar as the director of employment is concerned…. He has to insure. He has -- he has done everything he can, he has an hearing, and he has almost absolute liability.

Reading the tea leaves, it is likely that the cat’s paw will survive the Supreme Court’s review in a narrow form. I predict that the court will derive a standard that looks to the ultimate decision and the role that the animus of the non-decision maker played in that decision. I also think that the Court will craft an affirmative defense or other means to rebut the inference of the cat’s paw, such as the decision maker's independent investigation of the circumstances leading to the termination.

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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? 10 provisions to include in severance and separation agreements

Last week, I wrote about problems in enforcing non-disparagement clauses in separation agreements. It got me to thinking—what other clauses should businesses prioritize for inclusion in separation agreements, other than the release and waiver? Here are my thoughts:

1. Consideration: A statement that the consideration provided to the employee is more than that to which the employee is otherwise entitled to employment by way of employment. Otherwise, the release and waiver could fail for the employee not receiving anything of value in exchange.
   
2. Confidentiality: A covenant as to the confidentiality of the agreement. You do not want other employees learning the terms of the separation, or that agreement was even reached. Otherwise, it could open the floodgates to other employees seeking separation packages.
   
3. Secrets: A covenant as to the confidentiality of employer’s confidential and proprietary information.
   
4. Return of Property: A covenant that all corporate property has been returned, or will be returned by a date certain.
   
5. Transition: A promise to reasonably cooperate with the employer as to the transition of job duties and responsibilities.
   
6. No-rehire: A promise that the employee will not apply for any positions in the future, and that the company is not obligated to consider him or her for future employment. Because there is some risk that a clause such as this could be viewed as retaliatory, indemnification language is not a bad idea.
   
7. No Liability: A statement that the agreement is not an admission of liability.
   
8. Governing law, Jurisdiction, and Venue: An agreement as to the law that will govern the agreement, and the jurisdiction and venue in which one must file any lawsuit regarding a breach of the agreement.
   
9. Entire Agreement: An integration clause, stating that the written agreement is the parties’ entire agreement, that no other written or oral agreements exist, and that the parties may only amend the agreement in writing signed by all.
   
10. Voluntariness: An acknowledgement that the employee read and understands the agreement, and had sufficient time and an opportunity to consult with his or her own legal advisor prior to signing the agreement.
    

What else are people including in their separation and severance agreements? Readers, did I miss any?

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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.

You deserve to be told who to vote for today … at McDonald’s

A McDonald’s franchisee in Canton finds itself in trouble this election season for including inside employees’ paychecks a pamphlet urging them to vote Republican. As if an employer’s inclusion of political literature with paychecks isn’t intimidating enough, the note stated, “If the right people are elected, we will be able to continue with raises and benefits at or above the current levels. If others are elected, we will not.”

These actions likely violate a little-known Ohio law that prohibits an employer from influencing the political opinions or votes of employees. O.R.C. § 3599.05 provides:

No employer or his agent or a corporation shall print or authorize to be printed upon any pay envelopes any statements intended or calculated to influence the political action of his or its employees; or post or exhibit in the establishment or anywhere in or about the establishment any posters, placards, or hand bills containing any threat, notice, or information that if any particular candidate is elected or defeated work in the establishment will cease in whole or in part, or other threats expressed or implied, intended to influence the political opinions or votes of his or its employees.

The lesson is simple—keep politics out of the workplace. It’s divisive, makes employees uncomfortable, and, at least in this instance, illegal.

For more on the intersection between election day and the workplace, see Time off to vote on election day.

[Hat tip: The Word on Employment Law with John Phillips and Joe’s HR and Benefits Blog]

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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.

Is it illegal to ask employees to promise not to sign union authorization cards?

While the Employee Free Choice Act has stalled in Congress, it does not mean that it is no longer newsworthy. For example, tomorrow, four states (Arizona, South Carolina, South Dakota, and Utah) will have ballot measures aimed at preventing the EFCA from being implemented on a state level.

For more evidence of the continued relevancy of the debate over the ECFA, consider the case of Regis Corp. The NLRB issued a complaint against Regis as a result of allegations that it asked its employees to sign a document revoking their future right to form a union by using an authorization card. According to Regis, the purpose of the document was to protect the workers’ ability to vote in a secret ballot election. Regis also contends that the agreement was completely voluntary—up to 20% of its workers have refused to sign it and none have been terminated. Yet, five employees complained to the NLRB that they felt their jobs were at risk if they didn’t sign the form, or who said they lost jobs because they questioned it.

Last week, the NLRB issued a complaint against Regis as a result of the secret ballot pledge:

The NLRB today issued a complaint against Minneapolis-based Regis Corporation … alleging it illegally solicited employees to promise in writing that they would not sign union authorization cards in the future.

The complaint also alleges that, in a DVD played to employees across the country, the company’s Chief Executive Officer warned that hair stylists would be blacklisted from the industry if they supported a union. In the recording, he exhorted employees to sign a “Protection of Secret Vote Agreement”, which would prospectively revoke any union authorization cards signed in the future. The complaint further alleges that a district manager threatened employees with job loss if they refused to sign the agreement.

The alleged events occurred in the fall and winter of 2009-2010, at a time when legislation was pending in Congress that would have required employers to recognize a union if a majority of employees signed authorization cards. It has not been enacted.

I have not done the research to conclude whether Regis’s pledge is legal or illegal. But, as this case illustrates, under the current pro-labor NLRB labor practices that come close to the line scrutinized before being put into practice. As the NLRB is currently constituted, this federal agency is a hostile audience for employers accused of anti-union measures. When dealing with labor unions or employee concerted activities, employers should view their measures through the same labor-tinted glasses as will the NLRB.

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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.

WIRTW #150 (the sesquicentennial edition)

It’s hard to believe that I’ve been writing these wrap-ups for 150 weeks. When I started this feature on October 12, 2007, I never imagined I’d still be doing it three years later, let alone blogging three years later. Some other milestones from the week of October 12, 2007 (courtesy of Wikipedia):

• U.S. athlete Marion Jones returns the five medals she won at the Sydney Olympics and accepts a two-year ban from the sport after admitting to her use of a prohibited substance.

• The general election in the Canadian province of Newfoundland and Labrador gives the Conservative government of Premier Danny Williams an enlarged majority at the expense of the Liberals.

• Polish police evict about 65 rebellious ex-nuns who had illegally occupied a convent in Kazimierz Dolny, Poland, for more than two years in defiance of a Vatican order.

• The United States Centers for Disease Control and Prevention warns consumers not to eat Banquet pot pies or other pot pies made by ConAgra with a printed code ending in C9 due to possible links with a salmonella outbreak.

• Former U.S. Vice President Al Gore and the UN Intergovernmental Panel on Climate Change (IPCC) share the 2007 Nobel Peace Prize.

I’ll let you decide if WIRTW #1 was the most significant event of that week. Next week’s WIRTW #151 marks another milestone—my 1000th post. I promise I’m getting all my self-aggrandizing out of my system this week.

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

Social Networking & Workplace Technology

• Take a Discovery Lesson From “The Social Network” – from Litigation PostScript. Persuasion Strategies for Litigators

• Who “Owns” A Twitter Account: Employer Or Employee? – from techdirt

• 6 Facebook, Twitter Mistakes That Can Get You Fired – from Joan Goodchild at PCWorld

• Social Media and Trade Secrets – Time to Panic? – from Trade Secrets Blog

• Survey: Judges Split on Their Use of Social Media – from Robert Ambrogi’s LawSites

• Why you should scrub departing employees’ emails – from Rob Radcliff’s Smooth Transitions

• Violation of a Non-Solicitation Provision Via Blog Post – from Molly DiBianca at the Delaware Employment Law Blog

• Should You Be Using Facebook For Recruiting? – from Lance Haun at TLNT

• Google tightening privacy leash on its employees – from Michael Liedtke at USAToday

Discrimination

• What Anita Hill did for America – from Workplace Fairness

• How General Counsel Can Recognize and Manage the Growing Risk of Retaliation Claims – from Shanti Atkins at Corporate Counsel

• Trucker demands religious accommodation for refusal to haul alcohol, tobacco – from Walter Olson’s Overlawyered

• Paid Administrative Leave is Not an “Adverse Employment Action” – from Daniel Schwartz’s Connecticut Employment Law Blog

• Sexual Harassment—You Know It When You See It – from HR Daily Advisor

• If not the face-slap standard, then what? – from Work Matters

• Husband Fired for Wife’s Conduct or Vice Versa – from The Word on Employment Law with John Phillips

• Distraction Theory - ADA Association Provision – from Philip Miles’s Lawffice Space

• Firing Offense: When is 'Shoot the Boss' Comment Not Considered a “Threat”? – from Mindy Chapman’s Case In Point

Wage & Hour

• Could Your PERSONAL Assets Be In The FLSA Crosshairs? – from Wage and Hour Laws Blog

• Overworked Employees Filing More FMLA Claims – from Workplace Diva

• DOL Stands for Department of Labor NOT Department of Employers – from Michael Haberman’s HR Observations

• Employer Not Liable For Telecommuter’s Accident While Traveling From Home To Office – from Laconic Law Blog

• Reporters are Not “Creative” Professionals – from Overtime Advisor

• Brett Favre Scandal Raises Issue of Workplace Protections for Independent Contractors – from Prima Facie Law Blog

• Satellite Dish Workers Tune In A FLSA Working Time Class Action – from Wage & Hour - Development & Highlights

Labor Relations

• Is Less Time from Petition to Election a Good Idea? – from EFCA & Labor Law Reform Blog

• Stop, Look, And Listen Before Terminating An Employee During A Union Organizing Campaign – from Hunton Employment & Labor Law Perspectives™

• NLRB Awards Compound Interest, Changing Long-Standing Rule – from Labor Relations Today

HR & Employee Relations

• 3 Workplace Guidelines for the Upcoming Election – from Where Great Workplaces Star

• If Your Employee Handbook References Progressive Discipline, You Better Use Progressive Discipline – from Minnesota Labor & Employment Law Blog

• NPR’s firing of Juan Williams: Politics aside, not a textbook example of how to fire with dignity and respect – from Sindy Warren at the Warren & Hays Employment Law Blog

Litigation

• Referring to Former Boss as Slimebag Does Not Constitute Disparagement, At Least in Ohio – from Fitzpatrick on Employment Law

• Using Litigation: Put out the client's lingering fires--permanently. Do that before you respond to the complaint – from What About Clients?

• Just Another Battle Between Employers and Employees – from Workplace Prof Blog

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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.

Best remedy for sick day abuse is a clear policy

In a 2006 episode of The Office, Dwight goes undercover to spy on co-worker Oscar when he suspects sick day abuse. He discovers that Oscar was using his sick day to ice skate. He also nearly discovers Oscar’s closeted homosexuality. I bring this up because, yesterday, careerbuilder.com published its annual list of the most unusual excuses for calling in sick.

The nationwide survey of more than 2,400 employers uncovered that 16% of businesses have fired a worker for missing work without a proven excuse. 29% of employers reported checking up on an employee who called in sick. Of those employers:

• 70% required a doctor’s note
• 50% called the employee at home
• 18% had another worker call the employee
• 15% (including Dwight Schrute) drove by the employee’s home

Of the more creative (or intriguing, depending on your perspective) excuses given by employees:

• A chicken attacking an employee’s mom
• A finger stuck in bowling ball
• A foot stuck in a garbage disposal
• One employee even called in sick from a bar at 5 p.m. the prior night.

I suggest that you call a sick day a sick day, and if you want to allow employees to use days off for “mental health days,” call your time off Paid Time Off, and not Sick Leave.

The best way to curb sick day abuses is to clearly spell your business’s expectation in a sick leave policy. What are the legitimate reasons for using a sick day? When is a doctor’s note required? What level of specificity is required? And, most importantly, what are the consequences if an employee is discovered lying about sick leave? According to CareerBuilder’s survey, 60% of employers allow employees to use sick day for mental health days. You may not think an employee’s “mental health day” is that big of a deal. You will reconsider, however, when you face a discrimination lawsuit from an employee terminated for dishonesty and you have to explain when you did not discipline a white employee who lied about his sick days.

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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.

Court concludes that “common slang” does not violate non-disparagement clause in severance agreement

I’ve seldom, if ever, negotiated a separation or settled an employment dispute for an employer without insisting that a non-disparagement clause be part of the signed agreement. The reasoning is simple—it’s not in a company’s best interest to have an ex-employee running around bad-mouthing it or trashing its reputation. The reality, however, is that a clause in a contract is only as good as one’s ability to enforce it when breached. In Ohio Education Assn. v. Lopez (10/19/2010) [pdf], one Ohio appellate court has removed a good deal of the bite from this class of clauses in separation and settlement agreements.

The facts of Lopez are straight-forward. In connection with the resignation of its assistant executive director and general counsel, the Ohio Education Association presented Lopez with a severance agreement. The agreement contained the following non-disparagement language, which is similar to that which you will find in most such agreements:

Employee further agrees not to at any time disparage, defame, or otherwise derogate Employer’s Officers, Executive, Committee Members, employees or agents.

OEA sued Lopez for an alleged breach of that clause by leaving the following voicemail for its outside counsel:

Davey, you never call me anymore. This is el jeffe. Call me sometime. I’m all settled with the OEA so you don’t have to worry about this gag order and all this s___ that slimebag Reardon said to you. So call me…. Bye.

The court of appeals concluded that while the voicemail did breach the non-disparagement clause, the breach was immaterial and therefore not actionable:

Here, the purpose of the separation agreement was to end the employment relationship and resolve all disputes. The nondisparagement provision was a negotiated term of the agreement. The provision OEA alleged Lopez breached uses the terms “disparage, defame, or otherwise derogate.” All of these terms connote harming a person’s reputation or causing one to seem inferior. The term “slimebag” is a common slang expression meaning “[a] despicable person, usually a male.” McGraw-Hill Dictionary of American Slang and Colloquial Expressions (4th ed.2006), 323…. This kind of trifling figure of speech is of so little consequence it cannot be said to be material and should be disregarded…. [T]he slang expression is such a part of modern casual speech as to be almost meaningless. OEA could not demonstrate that the message caused any damage to OEA or Reardon.

Because this case requires a showing of actual harm to prove a material breach of a non-disparagement clause, it will make it that much more difficult to enforce these provisions. Nevertheless, they remain an important part of any severance or settlement agreement because: 1) they establish the expectation that ex-employees are to act professionally and business-like when talking about your organization, and 2) protect your business from the malicious speech intended to cause real harm.

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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? The DOL is encouraging employee covert ops in your business

Six months ago, I wrote about the Department of Labor’s Wage & Hour Division’s launch of a one-stop web portal, We Can Help. Its stated purpose is to provide employees with information about their rights under federal wage and hour laws. At the time, I noted my concern that the most prominent part of this website is a section entitled, “How to File a Complaint.”

While trolling the We Can Help website over the weekend (yes, I know, the exciting life of an employment lawyer-cum-blogger), I came across a Work Hours Calendar [pdf]. The calendar encourages employees to track their arrival and leave times, start and stop times, meal breaks, and other breaks on a daily basis. The distinctions drawn between arrival versus start times and stop versus leave times suggests that the DOL is trolling for potential off-the-clock claims against employers. The calendar’s instructions shed some light on the DOL’s other goals, and lends further support to my belief that the DOL is prioritizing off-the-clock claims.

It is recommended that you keep all your pay stubs, information your employer gives you or tells you about your pay rate, how many hours you worked, including overtime, and other information on your employer’s pay practices. This work hours calendar should help you keep as much information as possible.

Employers must pay employees for all the time worked in a workday. “Workday,” in general, means all of the hours between the time an employee begins work and ends work on a particular day. Sometimes the workday extends beyond a worker’s scheduled shift or normal hours, and when this happens the employer is responsible for paying for the extra time. Usually, workers have to be paid for all the time that they work, including:

• Waiting for repairs to equipment necessary for work
• Time spent traveling between worksites during the workday
• Time spent waiting for materials during the workday
• Breaks less than 20 minutes long
• Time spent completing unfinished work after a shift

The form ends with the following ominous statement:

You work hard, and you have the right to be paid fairly. It is a serious problem when workers in this country are not being paid every cent they earn. All services are free and confidential, whether you are documented or not. Please remember that your employer cannot terminate you or in any other manner discriminate against you for filing a complaint with WHD.

Still think you can afford to put off that wage and hour audit?

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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.

Court compels production of social networking user names, logins, and passwords, and dispels any notions of personal privacy

As I’ve recently discussed (Discovey of Social Networks in Employment Disputes and More on the Lack of Privacy in Social Media), social networking profiles and posts have become fertile ground for the formal discovery of information about litigants. Last month, one Pennsylvania trial court took this discovery one step further, and ordered the production of a plaintiff’s social networking user names and passwords.

In McMillen v. Hummingbird Speedway, Inc. (Pa. Ct. of Common Pleas 9/9/10), the plaintiff filed suit to recover damages for substatial injuries he allegedly sustained during a stock car race. The defendant asked in discovery for the names of any social networking sites to which the plaintiff belonged, along with users names, logins, passwords. The plaintiff objected, claiming that his Facebook and MySpace user names and login information were confidential. The trial court disagreed, and ordered the production: “Where there is an indication that a person’s social network sites contain information relevant to the prosecution or defense of a lawsuit, … access to those sites should be freely granted.” It relied, in part, on Facebook’s terms and conditions, which the court concluded dispelled any notion that information one posts on Facebook is private:

Yet reading their terms and privacy policies should dispel any notion that information one chooses to share, even if only with one friend, will not be disclosed to anybody else…. Facebook users are thus put on notice that regardless of their subjective intentions when sharing information, their communications could nonetheless be disseminated by the friends with whom they share it, or even by Facebook at its discretion. Implicit in those disclaimers, moreover, is that whomever else a user may or may not share certain information with, Facebook’s operators have access to every post….

The court also found that the relevancy of social networking information outweighed the potential of harm from the disclosure of that information.

Furthermore, whatever relational harm may be realized by social network computer site users is undoubtedly outweighed by the benefit of correctly disposing of litigation. As a general matter, a user knows that even if he attempts to communicate privately, his posts may be shared with strangers as a result of his friends’ selected privacy settings. The Court thus sees little or no detriment to allowing that other strangers, i.e., litigants, may become privy to those communications through discovery….

Millions of people join Facebook, MySpace, and other social network sites, and as various news accounts have attested, more than a few use those sites indiscreetly…. When they do and their indiscretions are pertinent to issues raised in a lawsuit in which they have been named, the search for truth should prevail to bright to light relevant information that may not otherwise have been known.

In last Sunday’s New York Times Magazine, Walter Kirn made the following observation about the intersection between social networking and the loss of personal privacy:

As the Internet proves every day, it isn’t some stern and monolithic Big Brother that we have to reckon with as we go about our daily lives, it’s a vast cohort of prankish Little Brothers equipped with devices that Orwell, writing 60 years ago, never dreamed of and who are loyal to no organized authority. The invasion of privacy—of others’ privacy but also our own, as we turn our lenses on ourselves in the quest for attention by any means—has been democratized.

As McMillen illustrates, by choosing to sacrifice our personal privacy through social interactions on social websites, we are also choosing to sacrifice our right to protect those interactions from discovery. 

[Hat tip: Delaware Employment Law Blog]

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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.

WIRTW #149 (the work / family edition)

October is National Work & Family Month. In it’s honor, I bring you three posts I read this week celebrating this cause:

• European MPs Vote to Extend Maternity Leave – from Workplace Prof Blog

• The Top Five Issues Affecting Working Families Today – from Work and Family Blog

• Is There More to the Story About the New Mom Who Quit Her Job Because She Was Denied Access to a Lactation Room? – from Patrick Smith’s Iowa Employment Law Blog

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

Discrimination

• EEOC Holds Public Hearing on Use of Credit Reports for Hiring – from Dan Schwartz’s Connecticut Employment Law Blog

• Employment Credit Reports Have Value: I Hope the EEOC Listened – from employeescreenIQ Blog

• Credit Checks: Yes or No? – from Michael Haberman’s HR Observations

• Extraterrestrial Employment Law – from Stephanie Thomas’s The Proactive Employer

• ADA accommodation: How supervisors can navigate the gray zone – from Stephen Meyer’s HR Cafe

• Recent Lawsuit Reminds Employers: You May Be Liable For Non-Employee Harassment – from Hunton Employment & Labor Law Perspectives™

• Meet GINA Before You're Introduced in Court – from Employment Essentials

• Religious Discrimination Complaints On the Rise at Work – from Courtney Rubin at Inc.com

• Obesity Under the ADA - EEOC Files Suit – from Philip Miles’s Lawffice Space

Workplace Technology & Social Networking

• Controlling Workplace Language is a Real Concern – from Digital Workplace Blog

• Too Much Information: When Social Media Spills Into The Workplace – from Lance Haun at TLNT

• Legal Ethics and The Social Network – from Social Media Law Update

• Take-Aways from the Navy’s Social-Media Handbook – from Molly DiBianca at the Delaware Employment Law Blog

• Social Media Update II from Fitzpatrick on Employment Law

• Seven Steps to Managing Your Online Reputation – from You’re the Boss Blog

• Fullbright’s 7th Annual Litigation Trends Survey – from Sharon Nelson’s Ride The Lightning

• Your touchscreen phone is a petri dish – from Boy Genius Report

• New Jersey Appellate Court: Lawyers Can Google Jurors – from Molly DiBianca’s Going Paperless

• Workers hogging bandwidth for personal use – from Barry Shlachter at the Columbus Dispatch

Wage & Hour

• A Brief Refresher on the Reemployment Rights of Veterans Under USERRA – from WorkplaceHorizons

• Coffee Breaks? Meal Breaks? Smoke breaks? What Is Required By Law? – from Minnesota Labor & Employment Law Blog

• Personal Liability Under The FLSA: The Issue Of Contro – from Wage & Hour - Development & Highlights

• Happy 72nd Birthday, FLSA - Time For An Overhaul – from Jennifer Gokenbach’s Colorado Employer's Law Blog

• Argument Recap: Court seeks clarity on what counts as a “complaint” under the Fair Labor Standards Act – from SCOTUSblog

• Conflicting Fitness for Duty Reports Preclude Retaliation Claim from FMLA Insights

HR & Employee Relations

• Putting Me and Other Employer’s Lawyers Out of Work – from Michael Fox’s Jottings By An Employer’s Lawyer

• What if we applied the Golden Rule at work? – from David Yamada’s Minding the Workplace

• Poppy seed bagels and false positive drug tests – from Walter Olson’s Overlawyered

• Getting a sense of a corporation’s culture: the job of every investigator (or, ruminations during a 7 hour layover in Dallas) – from Sindy Warren at the Warren & Hays Employment Law Blog

• Evidence Employees Are MORE SATISFIED With Their Bosses: Why It May Be So – from Bob Sutton

• Suggestions and Links for Creating or Updating Employee Handbooks – from George's Employment Blawg

• Dogs at Work – from Nolo’s Employment Law Blog

• Is a Policy Still a Policy if It's Not in Writing? – from Mindy Chapman’s Case In Point

Labor Relations

• “Card Checkmate” – from The ChamberPost

• Company Needs vs. Employee Wants—Guess Who Wins? – from RJ Morris at Fistful of Talent

• Unions, Recognition and Employee Engagement – from Derek Irvine at Compensation Cafe

Non-Competes & Trade Secrets

• Reducing the Risk of Litigation When Hiring Employees with Non-Compete Agreements – from Delaware Non-Compete Law Blog

• Jasmine v. Marvell: Remember To Hang Up Your Telephone After You Leave A Voicemail Message (Oh, And Don't Admit IP Theft Over The Telephone Either) – from Trading Secrets

• Hiring From the Competition – from Trade Secret / Noncompete Blog

• Conspiracy Theory: Employees Conspire to Breach Non-Competes or Steal Trade Secrets – from Trade Secrets & Non-Compete Blog

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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.

EEOC holds public hearing on credit histories and employee selection criteria

Yesterday, the EEOC held a public hearing on the use of credit histories as selection criteria in employment. It heard testimony from representatives of the National Consumer Law Center, Lawyers’ Committee for Civil Rights Under Law, the National Council of Negro Women, the U.S. Chamber of Commerce, and the Society of Human Resources Management, in addition to lawyers and psychologists. Following the hearing, the EEOC posted a press release summarizing the testimony. It has also posted the prepared remarks of the people testifying. 
Kudos to the EEOC for presenting a balanced panel of representatives of both employee interests and business interests, even though it is trying to further an agenda against the use of credit histories in employment. Sara Murray, reporting at the Wall Street Journal, synthesizes the core debate between employee advocates the business advocates on this issue:

The underlying concern is that poor credit could become a barrier to landing a job. Employers contend credit checks help them evaluate candidates and protect against fraud. Another concern is the potential discriminatory impact on hiring…. Opponents of the practice cite studies showing that African-Americans and Latinos tend to have lower credit scores. They also dispute whether credit reports are an accurate way to measure an employee’s qualifications.
Proponents of credit checks, which include fraud examiners and credit-reporting groups as well as employers, contend the histories are an important screening tool for employers and tend to be used sparingly…. Michael Eastman, an executive director at the U.S. Chamber of Commerce, told the EEOC that employers take individuals’ circumstances into account. Many at the hearing stressed that employers look for a pattern of careless financial behavior, not one-time events. “It’s very easy for the best, well-intentioned people to have very difficult times,” he said. “Employers recognize that.” Credit checks can also be used as a tool to protect businesses against fraud, supporters argue.

Blanket prohibitions on any practice are usually not a good idea. In this area, there are good reasons to allow the use of credit checks for job candidates. Consider the following, cited during yesterday’s EEOC testimony by Christine Walters of the Society for Human Resource Management and Pamela Devata of Seyfarth Shaw:

• While 60% of employers use credit checks to vet job candidates, only 7.8% use them for all candidates.
  
• Employers generally conduct credit checks when the information is relevant to the particular position: jobs with financial or fiduciary responsibilities (91% of employers), senior executives (46%), and jobs with access to confidential employee information (34%).
  
• Employers do not use credit checks to screen out applicants before they can even get in the door. 57% of businesses only initiate credit checks after a contingent offer, and another 30% only after the job interview.
  
• Credit checks can help protect against employee theft and fraud. In 44.7% of cases of employee fraud, the perpetrators were experiencing financial difficulties, and in 44.6% of cases they were living beyond their means.
  
• According to credit report provider Experian, employers never see credit scores. However, most of the research on the disparities in credit histories between racial groups is based on those scores. It is unfair to hold employers accountable for the scores they never see.
  

Additionally, it is not as if employees are without protections when employers seek to use credit histories in employment decisions. There is an entire federal statute— the Fair Credit Reporting Act—that provides myriad hoops for employers to jump through before and after using credit information. It also requires that employees give their consent before an employer can even request a credit history. And, Title VII prohibits the discriminatory use of credit histories. To per se prohibit employers from using information that is relevant to many positions simply does not make sense from a business perspective, and HR perspective, or an EEO perspective.

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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.

I wonder if these kids will need extra harassment training when they grow up?

Seen yesterday at AT&T Park, as photographed by The700Level.com:

Better sign these kids up now for the anti-harassment power course when they enter the workforce.

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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? Litigating disputes in court does not always make business sense

I believe that litigation is the worst possible way to settle disputes. This may come as a shock, considering that I am a litigator and trial lawyer. Consider, however, that when you decide to litigate, you resolve to pay me six figures for the following: to prepare and respond to discovery requests, produce and review documents, prepare for, take, and defend depositions, draft and respond to motions, and prepare for a trial that has less than a 5% chance of ever occurring. You also resolve to have years of your life and the lives of your employees sucked up by document productions, depositions, reviews of letters, pleadings, and motions, and court appearances. All the while, I’m also dealing with obstreperous opposing counsel (which drives up your cost even more) and an over-taxed court system that likely lacks the time, resources, and manpower your case deserves. In other words, in many cases you are tossing good money after bad. It’s my job to appropriately counsel you so that does not happen.

There are lots of cases that have to be litigated to be resolved. A (small) percentage of them will even need the wisdom of a jury of our peers to conclude. When a plaintiff makes a settlement demand many times in excess of what it will cost you defend the case, litigation makes sense. When the future of your business hinges on an outcome (such as a key employee’s theft of trade secrets), litigation makes sense. When an employee did something horrifically wrong causing the termination, and you cannot in good judgment pay that employee any amount of money, litigation makes sense.

Litigating on principle, though, is not preferred. When ex-employee accuses you of bigotry by suing you for discrimination, your natural inclination is to roll up your sleeves and fight to defend your name. In many cases, that inclination is wrong. You are running a business, and litigation should be treated as a business decision, not an emotional decision. Emotional decisions cost money, and end up as headlines in your local newspaper.

Steve Strauss, writing at USAToday.com, offers businesses this advice: “Not every dispute is a litigation-worthy dispute. Even in the best of cases, you should think that your odds of winning are 50-50. The judge may say yes, or she may say no. The jury may find in your favor, or not. It's 50-50. Of course some suits are better than others, but you just never know what a judge or jury will do.” He is right when he says when you litigate “you are playing with fire and if you are not careful, you will get burned.” Keep these ideas in mind in your next employment dispute. They will lead to a reasoned business decision, not an emotional one.

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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.

Interesting data in latest litigation trends survey

Law firm Fulbright & Jaworski has released its 6th annual Litigation Trends survey (you can also read my thoughts on the 2009 survey and 2008 survey). This year's survey of 275 U.S. companies of various sizes and industries has some interesting findings:

• More than 25% of those surveyed expect the number of disputes their companies face to increase in the next 12 months, while only 6% foresee a decrease.
• 40% of U.S. respondents cite the poor economy as the reason for the expected increase in litigation next year.
• 49% of respondents had labor and employment litigation pending in 2010, up from 45% in 2009.
• Yet, employment cases of various types either increased at a slower pace in 2010 as compared to 2009.

These statistics are the opposite of what one would expect in a down economy that is trying to rebound. Race, sex, age, disability, and religious discrimination cases all slowed in 2010. Yet, most respondents expect discrimination cases to increase in 2011. 

It's hard to know what to make of these results. On the one hand, one would expect the pace of employment litigation to pick up in a down economy. On the other hand, it could simply be that the economy, and its effect on jobs, was worse last year than this year. Or, maybe 275 companies is too small of a sample to be truly predictive of what's happening in corporate America. Regardless, it is foreboding that businesses almost unanimously see the pace of litigation either quickening or staying the same in 2011. In other words, I'm sure I'll have plenty to write about in the coming year.

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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.

WIRTW #148 (the “people sue for the darndest things” edition

Three stories caught my eye this week: Lawsuit of the Day: Pass the Wooden Dildo, Please (via Abovethelaw.com), Gay Skydiving Instructor Sues Over Firing (via Legal Blog Watch), and “Chocolate Delicious” and Man-on-Man Harassment (via Philip Miles’s Lawffice Space). If those headlines don’t garner clicks, none will.

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

SCOTUS

• Supreme Court Watch: Part 1, Part 2, and Part 3 – from Maribeth Minella at the Delaware Employment Law Blog

• SCOTUS: Is an oral complaint protected conduct under FLSA’s anti-retaliation provision? – from LawMemo Employment Law Blog

• Argument preview: The Fair Labor Standards Act and oral complaints – from SCOTUSblog

• Supreme Court to Hear Three Employment Cases This Term – from Patrick Smith’s Iowa Employment Law Blog

• U.S. Supreme Court Refuses to Hear Donning and Doffing Case – from Wage & Hour Counsel

Family Responsibility

• Being a great dad – it’s all in the definition – from Rob Schwartz’s Fairness Matters

• Employee Entitled to Maintain Lawsuit for Interference with FMLA Rights Even though Employer Granted All FMLA Leave Requested – from The FMLA Blog

• How Employers Can Minimize the Risk of Family Responsibilities Discrimination (FRD): Developing a Prevention Plan – from George Lenard’s George’s Employment Blawg

• Family Friendly Workplace? When the Sh!t Hits The Fan – from Tanya Barham at Fistful of Talent

• FMLA FAQ - Can an employee fill out his own medical certification? – from FMLA Insights

• Deathbed Emails - Is There a “Sick Day” Double Standard? – from Wayne Turmel at bnet

Discrimination

• The “Commonsense” Bill and Its Nonsensical Implications – from Stephanie Thomas’s Compensation Cafe

• Steps an employer should take to reduce the possibility of sexual harassment occurring in their workplace – from Employment Law Bits

• Drunk — and Disabled? – from The Word on Employment Law with John Phillips

• EEOC to Hold Meeting on the Use of Credit History as Employment Screening Device from Washington D.C. Employment Law Update

• Obesity - Physical characteristic or physical impairment – from GT LE Blog

• $2 Million Jury Verdict Against a Wisconsin School District For Violating the ADAAA – from Minnesota Labor & Employment Law Blog

• Record ADA claims should wake up employers – from Jane Lewis Volk at the Pittsburgh Post-Gazette

Litigation

• Sleight of hand and litigation statistics – from Walter Olson’s Overlawyered

• 2010 Fulbright Litigation Trends Survey Shows Increase In Employment Litigation – from Laconic Law Blog

• “The onslaught of wage and hour litigation continues unabated” – how will you protect yourself? – from CPEhr’s Small Biz HR Blog

Trade Secrets & Non-Competes

• Coaches & Non-Competes – from Rob Radcliff’s Smooth Transitions

• Blog post violated nonsolicitation clause in Amway agreement – from Evan Brown’s Internet Cases

• Garden Leave as Consideration for a Non-Compete? – from Trade Secrets & Non-Compete Blog

• Bank of America Sues Ex-Programmer for Trade Secret Theft – from Trade Secrets Blog

• To Poach or Not to Poach: Now a Federal Question? – from Trade Secret / Noncompete Blog

HR

• How Not to RIF – from Workplace Prof Blog

• 20 Common HR Metrics & Their Formulas – from Where Great Workplaces Start

• Interviewing the hostile witness – from Stephen Meyer’s HR Cafe

• Low-Tech Monitoring of Employees Can Result In Employer Liability from Employer Law Report

Miscellaneous

• Social Media Now More Popular E-Mail on Mobile Devices vmashable.com

• NLRB ABCs – from Manpower Employment Blawg

• Employers should confirm their I-9 verification policies and systems are working properly – from Ryan Rivchun’s Business, Employment and Real Estate Law in Ohio

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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.

Does FLSA’s anti-retaliation provision cover oral complaints? The Kasten v. Saint-Gobain oral argument

Yesterday, the U.S. Supreme Court heard oral argument in Kasten v. Saint-Gobain Performance Plastics (transcript available from Supreme Court’s website), which asks the following question: Is an oral complaint of a violation of the Fair Labor Standards Act protected conduct under the anti-retaliation provision, 29 U.S.C. § 215(a)(3)?

By way of background, the 7th Circuit held that the FLSA’s anti-retaliation provision—which provides that an employer cannot “discharge or in any other manner discriminate against any employee because such employee has filed any complaint”—covers intra-company complaints, but they must be in writing: “[T]he natural understanding of the phrase ‘file any complaint’ requires the submission of some writing to an employer….” In comparison to Title VII’s anti-retaliation provision—which broadly covers any employee who “opposed” any unlawful practice—the FLSA narrowly requires that employees file a complaint for coverage. Thus, Kasten will likely come down to the issue of whether making an oral complaint is considered a filing.

The plaintiffs’ bar may hold out hope that the Roberts Court, which has favored retaliation claims in the past, will extend the FLSA’s narrow language to cover oral complaints. Based on yesterday’s oral argument, I would not hold out much hope for a reversal. The liberal wing of the Court was concerned about the ability of immigrants and low-wage workers to enforce their rights through effective written complaints. But, even Justices Breyer and Sotomayor expressed concerned about an employee who, at a cocktail party, sees a supervisor and complains of a wage-and-hour violation.

The following exchange (which was the best of the argument), likely is the lynchpin to the decision:

     Justice Scalia: My problem is, I cannot decide on -- on the question of whether filing means filing only in writing or also includes verbal filing, without resolving that other question. That is to say, if indeed the complaint has to be quote, “filed” with the government, I’m inclined to think that an oral complaint pursuant to procedures established by the agency which permit an oral complaint, even a complaint by telephone that would be okay.

     But my goodness, if it applies to private employers as well including employers that have no grievance procedures, including employers who have employees who go to cocktail parties, I am -- I am very disinclined to think that it -- that it could mean an oral complaint in -- in that context….

     Justice Sotomayor: What does file -- what is the meaning of “filed”?

     A: It means to submit or lodge.

     Justice Scalia: So you are filing your argument right now. Now come on, people don't talk like that…. That -- that -- that is absurd. You are not filing an argument right now. Nobody uses the language that way….

     Justice Kennedy: I would like to go back to the question Justice Scalia filed just earlier.

Reading the tea leaves, I predict a win for the employer based on the narrow language of the FLSA’s anti-retaliation provision. I also expect a strongly-worded dissent based on the policy implications for workers incapable of making effective written complaints.

For more coverage of the Kasten oral argument, I recommend the insightful thoughts of Paul Secunda at the Workplace Prof Blog.

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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.

A trial lawyer’s worst nightmare: a story from the trenches

I was defending a contentious age discrimination case. At trial, the plaintiff called as her first witness the president of the small non-profit defendant. For more than three hours, he took what can only be described as a verbal beating. The cross-examination ended with this bang:

  Q: And you admit that you take age into account in every employment decision you make at the foundation?

  A: Yes.

The admission was shocking because the question had not been previously asked in any deposition. The plaintiff’s lawyer took a flyer, but must have felt he had softened the witness up enough after three-plus hours. The damning admission hung in the courtroom for a week until I had the chance to try to rehabilitate my client as part of my case. By that point, no one cared that he was trying to answer the question honestly—that this 70-year-old man equated age with experience, and usually tried to hire older. While the jury returned a big number (the worst defeat of my career), it was half of the plaintiff’s final settlement demand (which I call a win nonetheless).

I was reminded of this story earlier this week by reading a two-part series in BLR’s HR Daily Advisor, 9 Things You Don't Want to Have to Admit in Court (part 1 and part 2). No amount of preparation could have stopped my witnesses from making the admission he made. Nevertheless, the takeaway from these stories is that preparation is the key to any successful testimony.

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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? Ten tips for effective litigation holds

The purpose of a litigation hold is to stop the destruction of potentially relevant or discoverable documents and information pursuant to a retention policy or otherwise. With the advent of electronic discovery, it is incumbent upon litigants to employ litigation holds as soon as claim or potential claim is reasonably clear. Otherwise, relevant documents might be destroyed, leading to sanctions such as adverse inferences, dismissal of claims, or default judgments. In other words, failing to implement a litigation hold is a quick way focus your case away from the law and the facts and on to discovery issues.

The following is a list of 10 practical tips for implementing a meaningful litigation hold during active or pending litigation:

1. Describe the pending claim.

2. Identify the recipient of the hold letter as someone who may have personal knowledge regarding the matter, or who may be in possession of or have access to information or documents potentially relevant to the matter.

3. Order the suspension of any deletion, overwriting, or any other destruction of electronic information relevant to the matter that is under the recipient’s control. This task will be much more daunting for an IT manager than an individual employee’s work station.

4. Broadly define the scope of covered information to include all documents, records or data of every kind residing or recorded (intentionally or unintentionally) in any medium or location other than within a person’s memory: paper, magnetic tape, photographs, maps, diagrams, applications, databases, microfilm, microfiche, emails, intranet, instant messages, blogs, voicemails, metadata, and any other electronic means of communication that are created, stored or received on the company’s computers or network systems or any other devices (phones, PDAs, applications or storage devices) or systems capable of storing electronic information.

5. Instruct that the recipient search all information for anything relevant or potentially relevant to the claim. Emails and other electronic information should be segregated in a PC or Outlook folder, and all paper documents in a hard file.

6. Hoarding is not a bad thing. Tell recipients to err on the side of over-saving.

7. Designate one company employee as the point person for any questions about the litigation hold and employees’ duties to preserve information and documents.

8. Alert recipients about the to the risk to the company and its employee for failing to heed the litigation hold request.

9. Ensure that the recipient signs a verification signifying the receipt the litigation hold.

10. Periodically recalculate the litigation hold to ensure continuing compliance.

A lesson from Columbus Day

When I took the dog out for her morning walk, I noticed a newspaper in my driveway. You might not think that is all that remarkable, but when you only have weekend delivery, a Monday newspaper means one of two things: either the delivery person screwed up, or today’s a holiday. That is how I remembered that today is Columbus Day. No banks, no mail, no courts, but a Plain Dealer in my driveway. (Apologies to my wife for not bringing the paper in – lost in my own thoughts walking back into the house).

Christopher Columbus set out for Asia, and ended up discovering the Americas. Here’s where I bring this around to employment law. Where you start a case may not be where you end up. You might think you have the greatest defense since the ‘85 Bears, until the decision maker royally screws up his deposition. Or, you could have a serendipitous moment when you discover during the plaintiff’s deposition that he lied on his job application and never even graduated from high school (yes, this once happened to me). Few employment cases end up where you think they will when you start. The ability to course-correct is the hallmark of a winning case.

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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.

ADA podcast is now available from The Proactive Employer

Last Friday, I had the privilege of participating in a roundtable discussion on disability discrimination, hosted by Stephanie Thomas as part of her weekly Proactive Employer podcast series. I appeared with Cari Dominguez, the Former Chair of the U.S. Equal Employment Commission, Sheridan Walker, the president of HR consulting firm HirePotential, Kevin Bradley, the Director of Diversity for McDonald’s, and James Rodriguez, the Strategic Military Talent Manager for BAE Systems, Inc. We had an engaging discussion about the recruiting, hiring, and employment of disabled workers.

Stephanie recorded the conversation as a special one-hour installment of her weekly podcast. It is now available for download from Stephanie’s website. If you have an iPod or iPhone, you also subscribe to the podcast (on which I’ve now been a guest three times) via iTunes.

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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.