Department of Labor publishes new FMLA poster for Military Family Leave Amendments

On January 28, President Bush signed into law the National Defense Authorization Act for FY 2008. Section 585(a) of that Act amends the FMLA to provide eligible employees working for covered employers new leave rights related to military service. Because of these amendments, the Department of Labor has published an insert to its FMLA poster that all employers should add to their compendium of workplace postings.

Common stereotypes to avoid during job interviews

Yesterday, we took a look at some general dos and don'ts to keep in mind when conducting job interviews. Today, we'll delve a little deeper on the same topic, and examine some unconscious stereotypes that can unwittingly taint the interview process

The following are some examples of general stereotypes that could unintentionally pervade an interview and create liability problems under the employment discrimination laws:

• Stereotypes in the advertising for candidates (i.e., "young grad").
• Applicant's appearance makes him/her seem unable to do the job.
• Not hiring or promoting married women because they are not "primary earners".
• Refusing to hire or promote pregnant women, unwed mothers, or women with pre-school age children.
• Minimum height and weight requirements.
• People with disabilities and women will be absent more than other workers.
• Older workers have "peaked" or run out of gas therefore do not hire or promote.
• Younger people have high energy levels and are very open to learning new technology.
• She was "macho", needs to take a course in charm school. She should walk more femininely, and talk more femininely.
• Disabled individuals should be deemed candidates for short term employment only.
• Assuming women don't have physical strength.
• Women and minorities cannot do a job or do not want certain jobs.
• Candidates who are shy during the interview, will not perform well on the job.

Some of these examples are more obvious than others. Educating interviewers about yesterday's and today's pointers will go a long way towards preventing unconscious biases from tainting an interview and making what could have been an otherwise lawful hiring decision appear unlawful.

Jury award to alleged harassers illustrates importance of internal investigations

A Los Angeles jury has awarded $1.6 million to two white fire department captains suspended after a black firefighter they supervised had his meal laced with dog food. The captains alleged that they were made scapegoats for the misconduct of a Latino firefighter who placed dog food in the spaghetti dinner of a black coworker. The lawsuit centered on their claim that they were discriminated against because they are white, specifically that the fire department never conducted a formal investigation of the incident and disciplined them anyway under political pressure. The Los Angeles Times quotes a 34-year department veteran, "When it comes to a minority -- female or male -- and there's the word 'discrimination,' everybody runs and hides and puts their heads in the sand. The department is afraid to look at these things fairly."

Because we are so concerned about being fair to the victim, we often forget that the accused are entitled to same degree of fairness in an investigation. Just as a failure to reasonably remedy harassment can create liability problems, so can unjustly disciplining or terminating a wrongfully accused employee. Internal investigations must be conducted thoroughly, fairly, and impartially to avoid presenting liability problems from any of the involved parties.

Employers must allow time off for employees to vote

A reader asked whether Ohio employers are required to provide employees time off to vote - a timely question given tomorrow' presidential primary. Ohio Revised Code section 3599.06 provides:

No employer, his officer or agent, shall discharge or threaten to discharge an elector for taking a reasonable amount of time to vote on election day.... Whoever violates this section shall be fined not less than fifty nor more than five hundred dollars.

Hourly employees do not have to be paid for the reasonable amount of time off they take to vote. To avoid jeopardizing a salaried employee's exempt status, those employees should not be docked.

A quick LEXIS search did not reveal any cases in which an employee claimed a wrongful discharge based on a termination in violation of 3599.06. It is unclear whether the $50-$500 fine sufficiently addresses the public policy so that the termination would not place the public policy behind the statute in jeopardy. The issue muddy at best, such that firing a employee for taking a marginally reasonable amount of time off to vote would be a high risk termination that very well might have to be defended in court.

Avoid hidden interviewing traps

Today's BLR HR Daily Advisor is entitled, "Help, They Made Me a Supervisor — 9 Disastrous Mistakes New Supervisors Make.":

Pity the new supervisor. Sometimes they do the wrong thing, because they think they have to do something, and sometimes they do nothing when it's critical to do something. We'll cover nine typical types of trouble they get into today.
1. Hiring
Hiring gets to be second nature after a while, but it's a tricky matter at first. Overeager new supervisors think they should find out all they can about the candidate, but don't realize that many questions are off limits—questions about race, religion, disability, and marital and family status, among others.

The fact is that many interview questions may seem innocuous enough, but may create serious discrimination problems. The following is just a sample of some exemplar questions that are problematic, as compared to legitimate questions to extract lawful information:
Age

• When did you graduate high school?
• How old are you?
• How many years until you plan to retire?
• How many years seniority did you have at your prior company?

-vs-

• Can you submit a birth certificate or other proof of age if you are hired?
• Are you over 18? [work eligibility]

National Origin

• What county are you from?
• That is an interesting accent, where were you born?
• Where were you or your parents born?

-vs-

• Are you eligible to work in the United States? [work eligibility]

Criminal Records

• Have you ever been arrested? [race]

-vs-

• Have you ever been convicted of a crime? [honesty, qualifications]
• Caution, however, that the EEOC may even find this question illegal. See EEOC targets use of arrest and conviction records

Disability

• What is your medical history?
• Do you have any medical conditions or disabilities?
• How will they affect your job performance?
• Have you ever filed a workers' comp claim?
• Do you have a history or alcohol or drug addiction?
• What medications are you taking?

-vs-

• Do you know of anything that would limit your ability to perform the essential functions of this job, and if so, what accommodations can we make that would enable you to perform those functions?
• How would you perform this particular job task?

The following are some additional considerations stereotypes to keep in mind when interviewing members of protected classes:

• Ask questions that are relevant to the job itself. For example, do not ask an applicant for her opinions on birth control, abortion, women's lib, etc.



• Be careful not to draw assumptions about women's competence based on her soft voice or feminine appearance or attire.



• Be professional and consistent in addressing men and women. If using first names, do so for all candidates.



• Avoid flirting, patronizing, or making sexual/ethnic jokes during the interview.



• Avoid bringing up stereotyped prejudices: women shouldn't travel alone; they are too emotional; they aren't aggressive enough. Don't tell negative stories about former women employees.



• Don't go to the opposite extreme by boasting about your liberation, by pointing out how fair minded you are, or by giving an instant replay of every female or minority success story you know.



• In making a selection or recommendation, avoid making assumptions such as the following: (i) Supervisors or managers might prefer men or employees of certain ethnic/racial origins; (ii) Clients or customers might not want to deal with women or minorities; (iii) Women's work might lack credibility; (iv) The job might involve unusual working conditions that would disqualify the applicant.



• When interviewing people with disabilities don't ask: "What happened to you?" or "How will you get to work?"



• Do not place undue emphasis on conditions of employment (such as travel, heavy lifting, long hours, etc.) in hope of discouraging the candidate and getting him or her to withdraw from the competition.



• If asked, give accurate information about the number of women or minority employees already in the organization. If a candidate asks, and if you don't have women or minorities in your own department, then arrange for the person to meet other women or minority staff members. Do not assume that this person will necessarily want to meet other women or minority employees.



• If you're going to discuss the town or city, mention everything and do not try to over-emphasize the town's aspects as a family place in which to live and bring up children.



• In general, avoid references to a candidate's personal happiness (i.e., social and/or sexual). Don't assume that your town or city is not the place for a single person or for minorities.



• Obviously, do not indicate that you’re interested in hiring a women or minority person as a statistic to improve your department’s Affirmative Action/Equal Employment Opportunity profile. It's unlawful to apply different standards based on an applicant's sex or minority status.



• Don't ask the applicant about what kind of accommodation(s) he or she may need for the job until after the interviewer has established that the applicant is qualified for the job and is considering that person for employment. You can, however, explain what the interviewing and hiring process involves and ask all applicants whether they will need a reasonable accommodation to participate in any part of the process itself.
  
• Treat the applicant like an adult; don't be patronizing.



• If an applicant has an obvious disability or discloses that they have a disability during a job interview, you cannot ask about the nature or severity of the disability. You can discuss the job functions and whether the person can perform the functions with or without an accommodation.



• Accommodations for interviews must be provided.
  
• Citizenship requirements or preferences may be unlawful under Title VII if they have either the purpose or effect of discriminating against individuals because of their national origin.



• Be careful how applicants with disabilities are evaluated. Do not make judgments based on communication skills of people with hearing and speech impairments.
  
• Be sensitive to cultural differences: (i) Do not assume mispronunciation of English as a lack of education; (ii) Do not interpret silence as inability or unwillingness.

These lists give some guideposts to avoid liability. They are not meant to be exhaustive. The general rule of thumb is that unless you are absolutely sure that an interview question is 100% job-related, just don't ask it. Stick to the job requirements and how a candidate's work-related background fits with those requirements.
Tomorrow, we'll take a look at some general stereotypes that can unwittingly pervade the interview process and create problems for the unaware interviewer.

Special considerations for employment of veterans with service-connected disabilities

In Ohio, two laws apply to the employment of veterans: the federal Uniformed Services Employment and Reemployment Rights Act (USERRA), which provides reemployment rights to returning veterans, and Ohio's ban on military status discrimination, which goes into effect on March 18. If a returning veteran is injured, though, another law might come into play, the ADA. Earlier today the EEOC published guidance for employers on how to handle veterans with service-connected disabilities under the ADA. The following summarizes the EEOC's key points:

How does USERRA differ from the ADA?

USERRA protects the reemployment rights of those who leave their civilian jobs to serve in the uniformed services. The ADA prohibits employers from discriminating against qualified individuals with disabilities with respect to hiring, promotion, termination, and other terms, conditions, and privileges of employment. The ADA also prohibits disability-based harassment and provides that, absent undue hardship, applicants and employees with disabilities are entitled to reasonable accommodation. USERRA requires employers to go further than the ADA by making reasonable efforts to assist a veteran who is returning to employment in becoming qualified for a job.

Is a veteran with a service-connected disability automatically protected by the ADA?

No. The impairment must meet the statutory definition of a "disability" under the ADA, meaning a person who (i) has a physical or mental impairment that substantially limits one or more major life activities; (ii) has a record of such an impairment; or (iii) is regarded as having such an impairment, and who otherwise meets the employer's requirements for the job and can perform the job's essential functions with or without reasonable accommodation.

May an employer ask if an applicant is a "disabled veteran" if it is seeking to hire someone with a service-connected disability?

Yes, if the employer is asking the applicant voluntarily to self-identify for affirmative action purposes. Otherwise, employers generally may not ask for medical information from applicants prior to making a job offer.

What steps should an employer take if it asks an applicant to self-identify as a "disabled veteran" for affirmative action purposes?

If an employer invites applicants to voluntarily self-identify, the employer must indicate clearly and conspicuously (i) that the information requested is intended for use solely in connection with its affirmative action obligations or its voluntary affirmative action efforts; and (ii) the specific information is being requested on a voluntary basis, it will be kept confidential in accordance with the ADA, that refusal to provide it will not subject the employee to any adverse treatment, and that it will be used only in accordance with the ADA. Any information collected must be kept separate from the application to ensure confidentiality.

May an employer give preference in hiring to a veteran with a service-connected disability over other applicants?

Yes. The ADA prohibits discrimination "against a qualified individual with a disability because of the disability." The law neither prohibits nor requires affirmative action on behalf of disabled individuals. Therefore, an employer may, but is not required to, hire a qualified individual with a disability over a qualified applicant without a disability.

What types of reasonable accommodations may veterans with service-connected disabilities need for the application process or during employment?

Some examples of possible reasonable accommodations to consider include: written materials in accessible formats; recruitment fairs, interviews, tests, and training held in accessible locations; modified equipment or devices; physical modifications to the workplace; permission to work from home; leave for treatment, recuperation, or training related to the disability; modified or part-time work schedules; a job coach; reassignment to a vacant position.

How does an employer know when a veteran with a service-connected disability needs an accommodation?

Usually, the reasonable accommodation process begin with a request by the employee or someone else on his or her behalf. The request does not have to mention the ADA or use the term "reasonable accommodation" and simply can be an indication that the employee needs a change for a reason related to a medical condition. A request for reasonable accommodation is the first step in an informal interactive process between the individual and the employer. That process usually involves determining whether the employee actually has a "disability" Employers should also ask what is needed to do the job.

May an employer ask a veteran with a service-connected disability whether a reasonable accommodation is needed if none has been requested?

It depends. During the application process, an employer may explain what the hiring process involves and ask all applicants whether they will need a reasonable accommodation to participate in any part. In addition, if an employer reasonably believes that a veteran with an obvious service-connected disability (such as blindness or a missing limb) who is applying for a particular job will need a reasonable accommodation to do that job, the employer may ask whether an accommodation is needed and, if so, what type. Once a veteran with a service-connected disability has started working, an employer may ask whether an accommodation is needed when it reasonably appears that the person is experiencing workplace problems because of a medical condition.

Employer electronic monitoring survey illustrates the importance of clearly defined policies

The Electronic Discovery Navigator is reporting that according to the 2007 Electronic Monitoring & Surveillance Survey from American Management Association (AMA) and The ePolicy Institute, more than half of all employers have fired an employee for e-mail or internet abuse. According to the report:

The 28% of employers that have fired an employee for e-mail misuse cited the following reasons:

• Violation of any company policy (64%)
• Inappropriate or offensive language (62%)
• Excessive personal use (26%)
• Breach of confidentiality rules (22%)
• Other (12%)

The 30% of employers that have fired an employee for internet abuse cited the following reasons:

• Viewing, downloading, or uploading inappropriate/offensive content (84%)
• Violation of any company policy (48%)
• Excessive personal use (34%)
• Other (9%)

The stat that really caught my eye is that of the 65% of companies that use software to block connections to websites they deem inappropriate for work, 18% prevent employees from visiting blogs. And, it's not only the reading of blogs that is getting employees in trouble. Both Ernie the Attorney and John Phillips' Word on Employment Law are reporting on a CNN producer fired for having a blog that CNN deemed to be unfriendly towards it. CNN has a policy in its handbook that prohibits employees from writing for any non-CNN outlet without network approval, and terminated the employee for his off-work musings.

Technology in today's workplace comes in too many forms to keep track. It's no longer just enough to have a policy that covers e-mail and internet access. Workplace technology is not going to get any less complicated, and it is important to have policies in place that keep up with the changes. Policies should also cover blackberries and other PDAs, cell phones, and even blogs. Companies have to be careful, however, not to overreach and be too draconian in what they try to accomplish with these policies. If you intend to hold employees accountable for what they do on their private free time (whether it's blogging, smoking, or any other lawful activity), it's best to have those expectations out in the open so that everyone is operating under the same ground rules, and people will have less of a reason to gripe if there is some adverse action taken.

What else I'm reading this week #20

This week starts off with a couple of stories that fall under the related categories of "You can't make this stuff up and "Why I love my job."

• The aptly named Lowering the Bar brings us the tale of an employee who was fired for trying to solicit a hooker on the company's dime and then filing for unemployment.
• From Above the Law, we have a story of a supervisor at a Utah motivational coaching business accused of waterboarding an employee in front of his co-workers as, well, motivation to work harder. The lawsuit also alleges that the managers also allowed the supervisor to draw mustaches on employees' faces, take away their chairs and beat on their desks with a wooden paddle.
• Meanwhile, The Laconic Law Blog and Overlawyered both bring us the story of two young women who claim that Southwest Airlines discriminated against them because they were too beautiful. For the curious, Wizbang has their photo. The following is Southwest Airline's very clever viral response to the claim [Hat tip to KnowHR Blog]:

Dan Schwartz at the Connecticut Employment Law Blog reports on his state's legislature's consideration of Workplace Bullying legislation. More than once, I've argued against this type of legislation - liability for a jerk boss has the real potential to put a stake through the heart of employment at-will. You can read my thoughts on this topic here and here.

Kris Dunn, The HR Capitalist, highlights the evils of "reply all." The comments to Kris' story relate some personal "reply all" horror stories.

George's Employment Blawg gives us a very thoughtful summary of the ERISA landscape post-LeRue.

BLR's HR Daily Advisor gives us 7 stupid things that supervisors say that beg for a lawsuit.

The Evil HR Lady blogs about the importance of computer and Internet use policies at work.

Finally, John Phillips' Word on Employment Law provide a state-by-state survey of which states require employers to provide employees time off to vote. Please note, as we approach March 4, that Ohio requires employers to give employees a "reasonable amount of time off" to vote, and that salaried employees cannot be docked.

High medical costs as direct evidence of disability discrimination

Federal courts of appeals continue to make family responsibility discrimination a hot button issue. Typically, we've seen family responsibility issues arise in the context of childcare. Today, we'll examine a family responsibility case that deals with associational disability discrimination, Dewitt v. Proctor Hospital, which permitted an employee with a terminally ill husband to pursue her ADA claim.

Phillis Dewitt worked at Proctor Hospital as a clinical manager, and by all accounts was a valued employee. Dewitt and her husband, Anthony, were covered under Proctor's medical plan. Proctor was partially self-insured for its medical coverage. It paid the first $250,000 of annual covered medical costs, and anything above that "stop-loss" figure rolled into an insurance policy. Because it was self-insured, Proctor kept quarterly reports of all employees with claims over $25,000.

Throughout Dewitt's tenure at Proctor, her husband suffered from prostate cancer, and the high medical costs that went along with it. In September 2004, Dewitt's supervisor, Mary Jane Davis, confronted her about her husband's medical claims, specifically asking what treatment he was receiving and why his doctor hadn't put him in hospice yet. Davis repeated her inquiry in February 2005. In May 2005, Davis organized a meeting of Proctor's clinical managers and advised them that because of the hospital's financial troubles it required a "creative" effort to cut costs. Three months later, Proctor fired Dewitt and designated her "ineligible to be rehired in the future." Dewitt's husband died a year later.

In her lawsuit, Dewitt claimed "associational discrimination" under the ADA, that Proctor fired her to avoid having to pay for the substantial self-insured medical costs it incurred because of her husband. The 7th Circuit pointed out the associational discrimination plaintiffs fall into 3 categories: expense, disabled by association, and distraction. Dewitt's claim falls into the "expense" category, an employee fired because a family member has a "disability" costly to the company.

The Court found that Dewitt had presented a jury question on her disability claim and reversed the trial court's dismissal of her claim. Specifically, the Court found that she had presented "direct evidence" of discrimination. Proctor fired Dewitt 5 months after Davis' last conversation with her about her husband's medical treatment and costs, and 3 months after Proctor warned employees about "creative" cost-cutting measures. In the Court's words:

[T]he timing of Dewitt’s termination suggests that the financial albatross of Anthony's continued cancer treatment was an important factor in Proctor's decision.... One could reasonably infer that Dewitt was terminated after Proctor conducted its latest periodic analysis of medical claim "outliers" and, this time around, decided that its "wait and see" strategy with the Dewitts was costing the hospital tens of thousands of dollars every year. A reasonable juror could conclude that Proctor, which faced a financial struggle of indeterminate length, was concerned that Anthony—a multi-year cancer veteran—might linger on indefinitely.... Because Dewitt has established that direct evidence of "association discrimination" may have motivated Proctor in its decision to fire her, a jury should be allowed to consider her claim.

This case is an example of an employer who did just about everything wrong. It repeatedly grilled an employee about her husband's medical condition, and then clearly fired her because of the high cost of his medical care. From the employer's point of view, this case would be scary to present to a jury. It's difficult to think of a more sympathetic plaintiff in an employment case, which presents a real big problem for Proctor at trial.

While I don't mean to sound heartless, the concurring opinion makes a good point as to what is and is not "disability" discrimination. The ADA makes discrimination based on "disability" illegal; discrimination based solely on medical costs simply is not illegal. [ERISA discrimination is another issue entirely, which the court did not reach].

An employer's most likely concern about an employee who has a disabled relative, especially a spouse or child, is that the relative's medical expenses may be covered by the employer's employee health plan. There is a positive correlation between being disabled and having abnormally high medical expenses, just as there is a positive correlation between the age of an employee and his salary because most employees receive regular raises as long as they perform satisfactorily. Suppose a company encounters rough waters and decides to retrench by firing its most expensive employees. They are likely to be older on average than the employees who are retained, but as we said many years ago, "nothing in the Age Discrimination in Employment Act forbids an employer to vary employee benefits according to the cost to the employer; and if, because older workers cost more, the result of the employer's economizing efforts is disadvantageous to older workers, that is simply how the cookie crumbles." ...

[A]n employer who discriminates against an employee because of the latter's association with a disabled person is liable even if the motivation is purely monetary. But if the disability plays no role in the employer’s decision—if he would discriminate against any employee whose spouse or dependent ran up a big medical bill—then there is no disability discrimination. It's as if the defendant had simply placed a cap on the medical expenses, for whatever cause incurred, that it would reimburse an employee for. This appears to be such a case. So far as the record reveals, the defendant fired the plaintiff not because her husband was disabled but because his medical expenses—which might not have been any lower had they been due to a condition that did not meet the statutory definition of a disability—were costing the defendant an amount of money that it was unwilling to spend. All the evidence recited in the majority opinion concerns costs ("cutting costs," "high cost of Anthony's medical treatment," "financial albatross," etc.) that a person who had a nondisabling medical condition could equally incur. If cost was indeed, as appears to be the case, the defendant's only motive for the action complained of, the defendant was not guilty of disability discrimination.

I am no way suggesting, from either a legal, HR, or human perspective, that companies should do what Proctor did. However, I do think that Judge Posner's concurrence makes a compelling argument on whether an employment decision based solely on medical costs constitutes "disability" discrimination. Proctor's job at trial is to convince the jury that medical costs were its only reason for the discharge, and that the disability itself played no role, a difficult argument to make and difficult distinction for a jury to draw.

Surpeme Court defers to EEOC on the definition of a "Charge" of age discrimination

The U.S. Supreme Court has issued its second employment decision in as many days, as today it has issued its opinion in Federal Express v. Holowecki. [The opinion is available for download from the Court here.]

Recall that Holowecki raised the procedural issue of what constitutes a "charge" of discrimination submitted to the Equal Employment Opportunity Commission under the Age Discrimination in Employment Act. The plaintiff submitted an Intake Questionnaire, with an accompanying affidavit, to the EEOC, which alleged that Fed Ex had committed age discrimination. She did not, however, file a Charge of Discrimination until 6 months later. In the interim, the EEOC neither assigned a charge number, nor informed Fed Ex that it had received the Intake Questionnaire. The issue was whether the Intake Questionnaire constituted a "Charge" sufficient to start the proceedings with the EEOC.

A 7-2 majority of the Court deferred to the EEOC's regulations and policy statements, and held that the Intake Questionnaire was a "Charge" because it could be reasonably construed as a request for the EEOC to take remedial action to protect the employee's rights or otherwise settle a dispute between the employer and the employee.

My problem with this ruling is that Fed Ex never had any meaningful way to respond to the Intake Questionnaire. That form was never sent to it, and it had no notice that a proceeding had even been initiated until after the actual charge was filed 6 months hence. Thus, an employee can proceed to federal court on an age discrimination class action lawsuit, without the employer, who had no notice that a charge had even been filed with the EEOC, having the benefit of trying to settle the claim pre-lawsuit. During the EEOC's conciliation process, the stakes are decidedly much lower than they are once an actual lawsuit is filed. For one thing, claimants usually are not represented by counsel at the EEOC. The same is rarely true in federal court. This decision prejudices employers who will be denied any opportunity to resolve a case via the EEOC's informal conciliation process. The majority attempts to cure this problem by suggesting that the trial court stay the case to allow for mediation. That stay, however, ignores the crucial differences between a mediation before as compared to after a federal court case has been filed.

In concluding his dissent, Justice Thomas hits a home run in summarizing the key problems with the majority opinion:

The implications of the Court's decision will reach far beyond respondent's case. Today's decision does nothing—absolutely nothing—to solve the problem that under the EEOC's current processes no one can tell, ex ante, whether a particular filing is or is not a charge. Given the Court's utterly vague criteria, whatever the agency later decides to regard as a charge is a charge—and the statutorily required notice to the employer and conciliation process will be evaded in the future as it has been in this case. The Court's failure to apply a clear and sensible rule renders its decision of little use in future cases to complainants, employers, or the agency.

---

This decision will have limited impact in Ohio, because employees have a private right of action under Ohio law without first going to the EEOC. However, because age discrimination claims under Ohio Revised Code 4112.99 are subject to a short 180-day statute of limitations, the Holowecki decision could impact those employees who miss that relatively short statute and have to go the EEOC for relief to enable a federal court filing under the ADEA.

Being upfront about a non-compete agreement can save a lot of headaches

Monday's Chicago Tribune had an interesting piece about the proliferation of non-compete agreements in today's business environment. Quoting from the article:

In an economy where information and relationships rule, businesses are quicker to try to limit the damage when people leave. And it's no longer just executives and high-tech workers whom companies worry about.... Employees encounter non-compete, non-disclosure and non-solicitation issues coming and going. The forms often sit in the stack of papers that new hires are asked to sign their first day on the job. And restrictive covenants invariably get tacked on severance offers in layoffs and firings.

The article quotes Diana Smith, managing director of The Novo Group, a Chicago recruiting firm, who advises that companies and job applicants should be up front and open about non-compete agreements:

"Companies that want to recruit from their competition will find ways to make it work. People should be really open in their discussions and not be afraid that it's going to stop the show. Chances are you're going to find a way to work around it."

Ms. Smith's point is important for employers to take to heart. Despite the existence of an agreement, companies may or may not have a real interest in enforcing a non-compete agreement against a former employee. Factors that the former employer might consider are the level of the employee, the circumstances surrounding the employee's departure, the employee's customer and industry contacts, and what trade secrets and other confidential information the employee was privy to.

Nevertheless, when an employee who has signed a non-compete goes behind the old employer's back to work for a competitor, the old employer is forced into action to send a message to all of the other employees who have signed non-compete agreements that the company takes them seriously and will enforce them if pushed to do so. Past enforcement is also a factor that courts look at in examining whether to grant an injunction enforcing a non-compete agreement.

On the other hand, what happens if the new employer picks up the phone and calls the old employer to ask for permission to hire the applicant despite the non-compete? The old employer may say yes if it does not want to run up attorneys' fees by attempting to enforce a non-compete against a marginal employee. Further, by allowing the new employer to hire the employee, the old employer will signal that it expects the same courtesy in the future - that is, at least a phone call before an employee is hired. And, if the old employer says no, the new employer has not lost anything, because hiring the employee will most likely result in litigation anyway.

Asking about the existence of a non-compete or other restrictive agreement should be boilerplate in virtually all hiring processes. Picking up the telephone and asking for an employee to be released from a non-compete for a particular job costs nothing, and could save significant heartache down the road by staving off litigation that the old employer may feel compelled to bring to save face.

The nation's focus turns to Cleveland (and lots of snow)

Today's snowstorm here in Cleveland notwithstanding, there will be a Democratic debate tonight. In honor of the debate, I suggest that anyone who has an interest on the candidates' position on labor and employment issues check out Presidential Politics – Predictions for the Workplace, by John Phillips. Even though the article was written almost two months ago, it's over-inclusive in its coverage of candidates. Because Senators Obama and Clinton have not changed their positions, the piece is as timely as to them as it was when is was written. Employment law issues have not gotten a lot of play in the campaign, and John's piece is the best primer on the subject I've come across.

There really is not all that much of a fundamental difference in the two candidates' positions on labor and employment law issues. If McCain (the presumptive Republican nominee) wins the general election, we can largely expect a maintenance of the status quo. If, however, either Senator Obama or Senator Clinton becomes our next POTUS, then it safe to assume that we will see some combination of the initiatives presented in the Civil Rights Act of 2008, the Fair Pay Restoration Act, the ADA Restoration Act, the Employment Non-Discrimination Act, and the Employee Free Choice Act. Just one more factor to consider as everyone goes to the polls on March 4 and in November.

Supreme Court issues ruling in "me, too" evidence case

As predicted, the Supreme Court has reversed the 10th Circuit's decision in Sprint/United Management v. Mendelsohn, which had held that "me, too" evidence in discrimination cases is per se admissible, and that a trial court must admit any testimony of other workers who claimed to suffer the same sort of bias against them, even if a different decisionmaker was involved. In a unanimous decision, Justice Thomas wrote that it was error for the appellate court to announce per se rule of admissibility and disregard the trial's court discretionary weighing of the evidence. Thus, the Federal Rules of Evidence do not require admission of testimony by nonparties alleging discrimination at the hands of persons who played no role in the adverse employment decision challenged by the plaintiff. Instead, the trial court should balance the evidence under Evidence Rule 403 to decide on its ultimate admissibility: "The question whether evidence of discrimination by other supervisors is relevant in an individual ADEA case is fact based and depends on many factors, including how closely related the evidence is to the plaintiff's circumstances and theory of the case."

This decision makes a lot of sense. It skirts the ultimate issue of whether "me, too" evidence is admissible or inadmissible because that decision should be fought in the trial court, which is in the best position to examine the evidence and weigh its relevance and admissibility. One can't judge whether evidence of discrimination by other supervisors is admissible without considering it in light of the context and theory of the case, all of which should be done by the trial judge. This decision may not give any guidance to trial judges on how and when to admit such evidence that some (including me) were hoping for, but that guidance would have impeded on their role as the ultimate gatekeepers of relevancy.

A copy of the Court's decision can be downloaded here.

[Hat tip: SCOTUS Blog]

Failure to document performance problems dooms employer's defense

In Birch v. Cuyahoga Cty. Probate Court, a court magistrate sued the court and its presiding judge, claiming that her status as the lowest paid court magistrate constituted wage-based sex discrimination. Specifically, Birch claimed that all of the female probate court magistrates were paid lower salaries than all of the male magistrates, that the highest paid female magistrate earned less than her lowest paid male counterpart, and that she was the lowest paid of all. In defense of the wage practice, the probate court claimed that it paid Birch less because of poor job performance. The Court, however, rebuked that claim because of the employer's failure to document any of the concerns in Birch's personnel file:

Appellees' assertions supported by documentary evidence might have established these facts beyond dispute. Due to a history of regrettably minimalist supervisory employment practices, however, the record is barren of evidence apart from the assertions of Judge Donnelly and Magistrate Polito to this effect. [The record demonstrates that there are no job descriptions for magistrates, no written description of the work performed by the various departments, and no protocol for determining magistrate salaries. Employees are not evaluated, and the court does not produce written documentation of performance concerns.] These assertions do not establish that appellees would have taken the same action in the absence of discriminatory motive. They do, however, create a genuine issue of material fact that precludes summary judgment.

The bottom line: if you plan on defending a discrimination case based on poor job performance, it's best to have the deficiencies documented somewhere, preferably in the employee's personnel file.

Revisiting some lessons from childrens' lit

Dan Schwartz of the Connecticut Employment Law Blog has written on a topic close my heart and on which I've written before, Click Clack Moo, Cows That Type, my daughter's favorite book. Dan uses the book to teach some basic lesson about labor relations. When I wrote about this book back in May, I drew some general employment relations lessons, which I'm republishing below:

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"Farmer Brown has a problem. His cows like to type. " So starts Click Clack Moo, Cows That Type, my soon to be one year old daughter's favorite book. In Click Clack Moo, Farmer Brown's cows and hens decide that they need electric blankets to keep warm at night in the barn. They deliver their demand to Farmer Brown on notes typed by the cows on a typewriter. When Farmer Brown refuses their demands, they go on strike, withholding milk and eggs. Ultimately, in a deal brokered by the duck, Farmer Brown agrees to accept the cows' typewriter in exchange for electric blankets. The labor dispute ended, and the cows and hens went back to producing milk and eggs. The deal backfired on Farmer Brown, though, as Duck absconds with the typewriter and leverages it into a diving board for the pond.

Click Clack Moo teaches us some valuable lessons:

1. Fair Treatment: The best means to avoid collective action by your employees is to treat your employees fairly. The barn was cold, and the cows and hens perceived that they were being forced to work in intolerable conditions. When Farmer Brown refused even to consider any concessions, they went on strike. If you want your employees to work hard, not unionize, and not file lawsuits, treat them fairly. Maintain reasonable, even-handed work rules and policies. Apply them equally. Don't discriminate. There is no guarantee that you'll stay out of court, but if you end up there, you'll have a much easier time convincing a judge and a jury of the rightness of your decision if you are perceived as being fair, reasonable, and even-handed.
2. Litigation is an Answer, But Not Always the Best Answer: Even in employment cases, where there are so many emotions in play on both sides of the table, it is only the most frivolous of cases that cannot not be resolved at some dollar figure. It is the job of the employer, working with its attorney, to strike the right balance between the cost of litigation and the cost of settlement. Convictions often get in the way, and often times litigation and trial is the only means to an outcome. But, you should always keep an open mind towards a resolution.
3. Don't Go It Alone: When resolving any case, make sure all your loose ends are tied up in a tidy agreement. Farmer Brown missed this last point. A well drafted agreement that included Duck would have avoided the added expense of the diving board. If Farmer Brown had retained competent counsel, he could have potentially avoided the problem with Duck (who probably went to law school).

Article highlights the importance of medical confidentiality by employers

An article in Thursday's New York Times asks the question, "I'm Ill, but Who Really Needs to Know?"

One of the first decisions you make in the emotional hours after a scary diagnosis is whether to tell others. Most of us share the news with our loved ones, but what of the circles beyond, particularly those at work? Your boss?

If an employee chooses to disclose a medical condition to an employer, it should go without saying that it is illegal to take any adverse action against that employee because of the illness. Separate and apart from the obvious, employers have clearly defined responsibilities with the handling of employee medical information. The EEOC sets out an employer's specific responsibilities under the ADA when an employee discloses medical information:

Basic rule: With limited exceptions, you must keep confidential any medical information you learn about an applicant or employee. Information can be confidential even if it contains no medical diagnosis or treatment course and even if it is not generated by a health care professional.

Do not place medical information in regular personnel files. Rather, keep medical information in a separate medical file that is accessible only to designated officials. Medical information stored electronically must be similarly protected (e.g., by storing it on a separate database).

The ADA recognizes that employers may sometimes have to disclose medical information about applicants or employees. Therefore, the law contains certain exceptions to the general rule requiring confidentiality. Information that is otherwise confidential under the ADA may be disclosed:

• to supervisors and managers where they need medical information in order to provide a reasonable accommodation or to meet an employee's work restrictions;
• to first aid and safety personnel if an employee would need emergency treatment or require some other assistance (such as help during an emergency evacuation) because of a medical condition;
• to individuals investigating compliance with the ADA and with similar state and local laws; and
• pursuant to workers' compensation laws (e.g., to a state workers' compensation office in order to evaluate a claim) or for insurance purposes.

HIPAA also imposes certain privacy and confidentiality obligations on employers' handling of employee medical information.

It is best to advise employees in an employee handbook or policy statement about the handling of their medical information. In the handbooks I've written recently I've been incorporating a policy statement on "serious illnesses." That policy lets employees know that their medical information is confidential, limited to managers and supervisors on a need to know basis, kept in a separate file, and that anyone who makes unauthorized disclosure of employee medical information will be subject to discipline up to an including termination. This policy should be dovetailed with other policies on reasonable accommodations for disabilities.

What else I'm reading this week #19

Earlier this week, I gave my two-cents on Humphires v. CBOCS West, which will answer the question of whether 42 U.S.C. 1981 recognizes a cause of action for retaliation. The Workplace Prof Blog gives us some comprehensive analysis of this week's oral argument, and predicts a 5-4 victory for the employer. Meanwhile, Dan Schwartz at the Connecticut Employment Law Blog correctly and astutely points out that most federal retaliation claims are brought under Title VII, that Section 1981 is only used when a plaintiff misses a statute of limitations, and that we should "ignore the hype about these cases [because r]etaliation against employees for filing race ... discrimination claims would still violate state law." This point is especially true in Ohio, where an employee has 6 years to file a retaliation claim under state law, and there is no requirement that the employee first file a charge with the EEOC or OCRC.

The Workplace Prof Blog also has a very insightful post on the rising tide of employment discrimination claims being brought by Muslims.

Michael Moore from the Pennsylvania Employment Law Blog offers a different perspective on whether LaRue will open the floodgates to federal court.

Kris Dunn, The HR Capitalist, points out one of the thorny problems presented by intermittent leave under the FMLA, employees using blanket doctors' notes to work the system and take time off whenever they want even for the most trifling of ailments.

The Electronic Discovery Navigator asks the question, "Do You Know What's In Your Employee's Inbox?"

Finally, the Labor and Employment Law Blog reminds us of some the critical mistakes supervisors can make when dealing with employees.

Some lessons in remedying sexual harassment

Today, we finish our look at Hawkins v. Anheuser-Busch. We've already examined the opinion's recognition of a claim for coworker retaliation, and its ruling allowing the use of evidence of the serial harassment of non-plaintiffs. I want to finish by discussing what Anheuser-Busch did wrong and what it did right in responding to the various harassment complaints it received about Robinson, and draw some general conclusions on what is and is not an appropriate remedial response.

Before getting into the specifics of the case, it is helpful to review the standard for an employer's liability for coworker harassment. In a coworker harassment case, the employer is not vicariously liable for the acts of harassment, as it would be if the harasser is a manager or supervisor. Instead, an employer's liability for coworker harassment hinges on the reasonableness of the employer's own acts or omissions in responding to and remedying the harassment. An employer's response is unreasonable if it manifests indifference or unreasonableness in light of the facts that the employer knew or should have known. Conversely, an employer's response is adequate if it is reasonably calculated to end the harassment.

As the Court points out, merely having a harassment policy is not enough to shield an employer from liability:

The best anti-discrimination policy in the world will not help the employer who, rather than fulfill its duty to act on complaints about a serial harasser, lets the known harasser continue to injure new victims. Because Robinson was a known serial harasser, the brewery is liable its its response to Cunningham's or Hill's complaints demonstrates an attitude of permissiveness and was not reasonably calculated to end Robinson's pattern of harassment.

Armed with complaints of harassment by Cunningham and Hill against Robinson, coupled with the complaints by other employees, let's first look at what the brewery did wrong in responding to the harassment:

• It removed the complainants from their line without undertaking any additional, fundamental remedial action, such as training, warning, or monitoring Robinson. Merely separating the complaining party from the harasser is not enough; instead, the company has to proactively take additional steps reasonably calculated to prevent and end the pattern of harassment.
• It failed to counsel Robinson upon its first notice of a problem. Such counseling should have included the nature of the inappropriate behavior, a reminder of the company's prohibition against sexual harassment, and a warning that the company would not tolerate any future harassment or retaliation and that future harassment would result in discipline up to and including termination.
• It failed to implement any additional checks to prevent future harassment, such as monitoring the harasser for future non-compliance, checking in with the victims to ensure that they was no longer being bothered, and additional follow-up counseling with the harasser.
• It failed to reopen the investigation into Hill's complaint after it received information that witnesses were chilled from talking out of fear of Robinson.

The Court pointed out the "marked difference" in the brewery's handling of complaints against Robinson by 2 other employees 3 years after Cunningham's and Hill's complaints. In response to these later complaints, it promptly launched an investigation, suspended Robinson, and fired him. Given this prompt and effective remedial action, Anheuser-Busch was insulated from liability from the 2 later complaints.

So, at the end the day, what do we take away from the various pieces and parts of the Hawkins case. Perhaps it's best just to use the Court's own words:

The remedies of Title VII would be rendered impotent if employers dealing with serial harrassers were allowed to throw up their hands after their first effort to deal with the harrasser proved unsuccessful. A company faced with a pattern of harassment must both respond appropriately and take increasingly effective steps designed to end the harassment. The failure to do so suggests indifference and permissiveness on the part of management.

The existence of a serial harasser suggests a problem that goes deeper and is more systemic than merely one harasser and the specific victims. It suggests that something simply is not working in how a business is addressing workplace harassment and retaliation. An employee like Robinson should serve as a signal to a company that it needs to scrap its entire harassment protocols and rebuild them from the ground up. That rebuilding should start with the harassment policy and comprehensive re-training. The goal, however, must be to change the way a company, its manager and supervisors, and its employees think about harassment, both in their attitudes towards it and the collective effort to eliminate it from the workplace.

Supreme Court permits ERISA claim based on 401(k) losses

In a significant decision, the Supreme Court has decided that ERISA permits an employee to sue the plan fiduciary (often the employer) because of a fiduciary breach that resulted in individual losses to a 401(k) plan. In our unstable economy, this decision is bad news for employers and a boon for the plaintiffs' bar, as employees have the green light to sue for losses to their retirement accounts, even if they directed the accounts.

As for analysis, I'll leave the heavy lifting to others:

• SCOTUS Wiki, which has a summary of the case.
• SCOTUS Blog, which has a copy of the opinion.
• Workplace Prof Blog, for some analsysis.
• John Phillips' Word on Employment Law, for some more analysis.

A couple of carnivals for everyone

Blawg Review #147 is available at Rush on Business, a friend of this blog that focuses on Iowa employment and business law. Blawg Reivew, for the unfamiliar, is a weekly review of the best law blog posts, hosted by a rotating cast of legal bloggers. Mark your calendars, as I'll be hosting Blawg Review #172 on August 11.

Meanwhile, HR Thoughts has this week's Carnival OF HR, highlighting various employment law and HR-related blog posts from the past 2 weeks.