What else I'm reading this week #22

This week's review starts with a couple of posts that should be of particular interest to Ohio businesses. Kris Dunn, The HR Capitalist, reports that Wal-Mart has overtaken GM as Ohio's largest employer. Meanwhile, The Union-Free Employer details a nasty labor dispute between the Service Employees International Union and the California Nurses Association for the right to organize at Ohio's Mercy Health hospital system.

The big news of the week, though, is hooker-gate in New York. Michael Moore at the Pennsylvania Employment Law Blog draws from Governor Spitzer's crisis some lessons for HR in scandal management .

Philip Gordon, the Workplace Privacy Counsel, has a great post on the problems inherent in dealing with a former employee's damaging web posts about your company.

Sticking with the technology theme, Rush Nigut's Rush on Business gives businesses some lessons in the litigation dangers presented by deleted emails, and Alaska Employment Law talks about the legalities of secret locker room surveillance.

Finally, John Phillips of The Word on Employment Law provides a helpful Q&A on employee handbooks.

Defamation liability in internal investigations?

Jackson v. City of Columbus, decided today by the Ohio Supreme Court, illustrates the importance of being thorough in all internal investigations of employee misconduct, and only disclosing the results of such investigations on a need to know basis.

The Mayor of Columbus asked his Columbus Public Safety Director, Thomas Rice, to conduct an internal investigation of his Police Chief, James Jackson, on allegations of police corruption. In June 1997, Rice presented his report of the investigation to the Mayor and released it to the public. In the report was a statement attributed to Keith Lamar Jones, an inmate at the Chillicothe Correctional Institution, which alleged that Jackson had impregnated a juvenile prostitute. A polygraph conducted during the interview of Jones concluded that he was deceptive during the interview but that his statements about the underage prostitute were not entirely invalid. Following the public release of the report, Jackson filed a defamation suit against the City. Both the trial court and the court of appeals found in the City's favor, in that the comment about the juvenile prostitute was subject to a public interest privilege. The Ohio Supreme Court accepted the case on the issue of whether one "commits defamation by publishing the defamatory statements of a third party when the publisher has a high degree of awareness of the probable falsity of those statements.”

Defamation occurs when a publication contains a false statement "made with some degree of fault, reflecting injuriously on a person’s reputation, or exposing a person to public hatred, contempt, ridicule, shame or disgrace, or affecting a person adversely in his or her trade, business or profession." If a plaintiff makes out a defamation case, a respondent may then invoke a conditional or qualified privilege, which must be supported by "good faith, an interest to be upheld, a statement limited in its scope to this purpose, a proper occasion, and publication in a proper manner and to proper parties only." A qualified privilege may be defeated only if a plaintiff proves with convincing clarity that a publisher acted with actual malice. "Actual malice" is defined as "acting with knowledge that the statements are false or acting with reckless disregard as to their truth or falsity." "reckless disregard", in turn, means that a publisher of defamatory statements acts with a "high degree of awareness of their probable falsity," or when the publisher "in fact entertained serious doubts as to the truth of his publication."

The Ohio Supreme Court decided that the City abused its privilege in reporting that Jackson had impregnated a juvenile. First, the City relied solely on the word of a convicted felon with a history of being a liar, and who had a questionable polygraph result. Secondly, and perhaps more importantly, Rice never interviewed Jackson about the allegation. According to Jackson, had he been asked, Rice would have been told that Jackson had a vasectomy and could not have impregnated anyone.

Before you conclude that the Jackson case doesn't apply to your business, consider that it teaches some general lessons on the handling of all internal investigations. Ohio court have held that employers enjoy a qualified privilege to disclose the results of internal investigations. See Lennon v. Cuyahoga Cty. Juvenile Court; Blatnik v. Avery Dennison Corp. When conducting internal investigations into allegations of sexual harassment or other employee misconduct, Jackson highlights a couple of important points.

• Consider your source. Who is providing certain information is as important as the information that is provided. Do not take what a witness says at face value without taking into consideration the witness's credibility. Does the witness have history of truthfulness? Does the witness have something to gain in the outcome, such as a promotion if another employee is terminated? Is the witness biased towards either the victim or accused? These questions are important in determining how much weight to give to a witness's statements, if any at all.
• Only disclose to those who need to know. Confidentiality is key in any internal investigation, even more so if the allegations are as devastating as sex with an underage prostitute. The more widely you disclose the fruits of any investigation, the more you open yourself up to a claim that you have abused the qualified privilege. The best practice is to limit the sphere of knowledge to those who absolutely need to know, and further limit what is told to those who need to know. How much information to disclose and to whom is largely a judgment call, but as a rule of thumb less is better.

Ohio Senate proposes ban on sexual orientation discrimination

Senate Bill 305, introduced in the Ohio Senate yesterday, would include "sexual orientation" in the list of protected classes against which it is illegal for employers to discriminate. It defines sexual orientation as "heterosexuality, homosexuality, bisexuality, asexuality, or transgenderism, whether actual or perceived." According to today's Cleveland Plain Dealer, if S.B. 305 passes, Ohio would become the 22nd state to ban this type of discrimination. The Plain Dealer also points out that only one Republican crossed party lines to sponsor the bill, which does not bode well for its ultimate fate.

While this blog is unabashedly slanted in the employer's favor, I come down on the side of the employee on the issue of sexual orientation discrimination. As I've said here before, is difficult to argue, in 2008, that it is acceptable to condone intentional discrimination of an innate characteristic such as sexual orientation. I also understand, however, the impracticalities of extending the same protections to gender identity. A company should not be forced to accept a man dressed in drag (for example) if that is not the image its wants to project, or if it think such an image will harm its bottom line by driving away business or customers.

Revisiting the facebooking of job applicants

Several months ago I wrote about basing personnel decisions on an applicant's or employee's off-work online activities. Today, three articles on this same topic came across my screen that make this topic worth revisiting: Do Employers Using Facebook for Background Checks Face Legal Risks?; Facebook a risky tool for background checks, lawyers warn; and Employers may be searching applicants' Facebook profiles, experts warn.

These articles predict indefensible discrimination lawsuits and general gloom and doom for employers who use Facebook, MySpace, YouTube, etc., to conduct background checks on job applicants. They suggest that companies are unnecessarily risking liability in a landscape that is uncertain until courts are asked to lay down some rules on these issues.

What is going on here? I'm the first person to tell companies not to be the test case for emerging HR practices, and to let others blaze the trail by defending the inevitable lawsuits. I just can't see how a company can face liability if it non-discriminatorily looks for information on job applicants on the web. People put this information in the public domain for anyone and everyone to see. It's one thing if employers use Internet searches to pre-screen job applicants before the interview process. That's a big no-no, for the same reason we no longer ask job applicants to submit photos -- it reveals demographic information that an employer could use to screen out certain minorities, genders, and other protected groups. Once a company decides to consider an applicant and actually meets the person, those concerns disappear.

A couple of helpful pointers for companies to consider. As with all personnel practices, it is best to have a written policy for supervisors, managers, and others involved in the hiring process to follow. That policy should make clear that Internet sources cannot be checked until after a job applicant has been interviewed, and that if a search is going to be conducted for one applicant for a position, it must be done for all. It also not a bad idea to put a disclaimer somewhere on the job application stating that publicly available Internet sources may be checked post-interview as part of consideration process.

Today's schadenfreude moment

Schadenfreude is a German word meaning, "happiness in the misfortune of others." I'm certain a feeling of schadenfreude has settled in all over Wall Street this morning, given yesterday's news about the Governor of New York.

Today's question: What do the Governor of New York and an Iowa casino worker have in common? Apparently, love for paid companionship. From the Des Moines Register comes this story of a casino employee terminated for attempting to buy a prostitute on his employer's dime.

Neil Jorgensen, 62, of Kalona worked at the Riverside Casino and Gold Resort south of Iowa City until last November. He was fired after he was given a $100 Riverside gift certificate and a free night's stay at the casino hotel in recognition of a year's employment with the company. He used the gift certificate and free night's stay on the night of Nov. 28.

"I went to Ruthie's, the nice steakhouse within the casino, and I had a cosmopolitan or two and a bottle of wine and a really good dinner," Jorgensen testified at a recent state hearing dealing with his request for unemployment benefits.

He said he went to his hotel room about midnight and called hotel managers for help in figuring out how to order an adult movie. An hour later, he said, he called the managers again "and asked for a hooker." After the managers refused to help procure a prostitute for him, Jorgensen called someone at the adjacent resort and made the same request.

The casino's human resources director, Tim Donovan, testified that hotel workers were then sent to Jorgensen's room to insist that he stop calling for prostitutes.

"When the hotel supervisor knocked on the door, Mr. Jorgensen answered the door in the nude," Donovan testified. Jorgensen was fired the next day.

Undeterred by his termination, Jorgensen filed for unemployment. At his hearing, he offered 6 different defenses for his misconduct, ranging from pedestrian to hilarious:

• "The advertisement is that it's just like Las Vegas, so I thought I was in Las Vegas."
• The casino employs a dual standard because "gamblers have been allowed to continue gambling after they've urinated on the blackjack table standing in full public view."
• That his actions had no detrimental effect on the casino.
• That just prior to his termination, he had received an "excellent" performance review.
• That the casino "overserved" him, which caused him to be "absolutely plowed."
• Finally, Jorgensen claimed that his requests for a prostitute were part of "an off-the-wall surveillance" test.

I could draw some great moral lessons here, or tell you that an employee who tries to hire a hooker on the company's dime should be fired ASAP, no questions asked. The reality, though, is that this story just made me laugh, especially in light of what happened in New York yesterday.

[Hat tip: Manpower Employment Blawg]

Guest blogging at the Connecticut Employment Law Blog

I'm pulling double duty today. In addition to my regular posts here, I'm also guest blogging at the Connecticut Employment Law Blog to cover for Dan Schwartz while he's in trial. Click on over to Dan's outstanding blog (and I'm not just saying that because of my guest post) and take a look at my thoughts on the federal Healthy Families Act. While your there, be sure to subscribe and add Dan to your feed reader.

Avoiding more discrimination traps

Last week I talked about avoiding common traps in the questions that are asked during job interviews. The questioning, however, is not the end of this story. John Phillips' Word on Employment Law points out that even if the right questions are asked, the notes that interviewers take during the process can prove just as damaging. Interviewers always take notes. The notes enable the interviewer to remember key points about candidates and make pertinent comparisons at the end of the process. The key word, though, is "pertinent." John's point, which is an important one, is to make sure that any notes that are taken are job related and deal with a candidate's experience and skills, and not a protected class:

So, you would never write "black," "AA" (even if your explanation is that this stands for Alcoholics Anonymous instead of African-American, remember that alcoholism is a disability), "Asian," "Hispanic," "crippled," etc. You'll never be able to satisfactorily explain why you made those notes. If the applicant has a name that is used by men and women, don’t write "female," because if you don't hire her, you'll be accused of giving yourself a reminder that this applicant was female. If the applicant is female, don’t write "appears to be pregnant" (pregnancy discrimination is a form of sex discrimination). If the applicant is obviously in his/her 60's, don't write "too old for job."

These ideas don't only apply to interview notes, but any other notes that a supervisor, manager, or HR employee might take -- whether in an investigation, disciplinary meeting, termination meeting, or any other setting that might bear on one's employment. An HR professional might write "discrimination" in her notes taken during a meeting terminating a 60 year old employee. That note could be an admission that the employee was being discriminated against, or an innocent explanation that because the employee is 60 years old the possibility of a claim of discrimination exists. If it's in writing, though, that employee will have to explain what it means during a deposition or to a jury. I guarantee that an employer does not want it left to a jury to decide which interpretation of that note is more believable.

The bottom line -- think before anything is committed to paper. If you have any doubt about whether something can be used against you, omit it. Education about the employment discrimination laws is key to this process. If you don't know what is illegal, it's impossible to know the traps to avoid.

What else I'm reading this week #21

It seems no matter where you turn these days, you just can't escape the presidential campaigns. John Phillips at The Word on Employment Law has been doing a great series on where the presidential candidates stand on various pieces of pending employment legislation and other labor and employment issues. I highly recommend checking out John's thorough posts if you want a sense of what a Clinton or Obama administration might look like to employers.

Childrens' lit is all the rage with bloggers lately. The HR Capitalist blames a Dr. Seuss book, I Am Not Going to Get Up Today, for the mess of FMLA intermittent leave.

Rush Nigut, better known as Rush on Business, draws some lessons from a case on deleted emails.

The Labor & Employment Law Blog gives some pointers on a topic I've touched on quite a bit, preventative and corrective actions for workplace harassment.

Finally, The Laconic Law Blog reports that the District of Columbia has approved legislation for mandatory paid sick leave. In all likelihood, we will see a similar measure, the Ohio Healthy Families Act, on the ballot in Ohio in November.

EEOC posts huge gain in discrimination charges

According to this EEOC press release, discrimination charges filed with the EEOC increased by 9% in 2007. The 82,792 private sector discrimination charges filed last year was the highest volume of incoming charges since 2002 and the largest annual increase since the early 1990s.

Race was the most frequently filed claim, with retaliation a close second and having the greatest percentage increase:

Basis of Charge Filing	2007	2006	Percentage Increase/Historical Comparison
RACE	30,510	27,238	Up 12% to highest level since 1994
RETALIATION	26,663	22,555	Up 18% to record high level, double since 1992
SEX/GENDER	24,826	23,247	Up 7% to highest level since 2002
AGE	19,103	16,548	Up 15%, largest annual increase since 2002
DISABILITY	17,734	15,575	Up 14% to highest level since 1998
NATIONAL ORIGIN	9,369	8,327	Up 12%, above 9,000 for second time ever
RELIGION	2,880	2,541	Up 13% to record high level, double since 1992

EEOC Chair Naomi C. Earp believes that companies' failures in combating workplace discrimination explains these numbers: "Corporate America needs to do a better job of proactively preventing discrimination and addressing complaints promptly and effectively. To ensure that equality of opportunity becomes a reality in the 21st century workplace, employers need to place a premium on fostering inclusive and discrimination-free work environments for all individuals."

Ms. Earp's statement would be more telling if the EEOC also released data on the percentage of charges on which the EEOC found probable cause as compared to how many were dismissed. This increase is much more likely the result of the economic downtown and more job losses, instead of companies avoiding their EEO responsibilities.

The uselessness of the Working Families Flexibility Act

WorkplaceHorizons has tipped me off to a recently introduced Senate bill, the Working Families Flexibility Act.

This bill, sponsored by Senators Obama and Clinton among others, would provide employees with the right to request, once every 12 months, that his or her employer modify the employee's work hours, schedule, or location. The Act would then require the employer to meet with the employee to discuss the requested modification within 14 days. Within 14 days of that meeting, the employer would have to provide the employee with a written decision regarding the requested modification, stating the grounds for any denial and any proposed alternative modifications. If the employee is still dissatisfied with the employer's decision, the bill would allow the employee to request reconsideration and require the employer and the employee to meet to again discuss the request. The Act covers employees who work at least 20 hours per week and 1,000 hours per year, and employers with 15 or more employees.

The Act also would make it unlawful for an employer to interfere with an employee's attempt to exercise his or her rights under the Act or to retaliate against an employee. Aggrieved individuals could file a complaint with the Administrator of the Wage and Hour Division of the Employment Standards Administration of the United States Department of Labor. Violations could result in civil fines of up to $5,000 per violation and equitable relief such as reinstatement, promotion, back pay, and changes to terms and conditions of employment.

Last I checked, the employer sets the terms and conditions of employment, especially on the core issues of work hours, schedules, and locations. Do employees really need federal legislation to go to a supervisor and ask for such an accommodation? Will this legislation change employers' responses to reasonable requests? Won't employers still guide their responses by the specific needs of their businesses? Further, as long as an employer goes through this interactive process, where is the harm to the employee, who is granted no right to any modification? However, every time an employee's request is rejected, he or she will scream interference or retaliation to the DOL, creating an administrative nightmare. Talk about worthless legislation. This bill is currently sitting in the Senate Committee on Health, Education, Labor, and Pensions, where I hope it dies a quick death.

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.