Applying the federal COBRA subsidy to Ohio’s Mini-COBRA law

As I’ve previously reported, the federal stimulus bill, enacted last month, requires employers to provide a 65% subsidy of COBRA premiums for employees involuntarily separated. As I’ve also previously reported, Ohio has its own “mini-COBRA” for small employers with between 10 and 19 employees.

Do not assume, however, that merely because COBRA does not apply to small businesses that the subsidy also does not apply to small businesses. The federal stimulus bill specifically provides for COBRA premium assistance to former employees covered under state continuation coverage law such as Ohio’s mini-COBRA.

Just like its federal counterpart, small employers covered by Ohio’s mini-COBRA are not obligated to pay any portion of the premium. The former employee will pay 35% of the premium and employer will claim the payroll tax credit from the IRS for the 65% of the premium not paid by the former employee.

There are, however, three key differences between the subsidy under COBRA versus Ohio’s mini-COBRA.

1. Although the federal subsidy lasts for 9 months, Ohio continuation coverage, and therefore the subsidy obligation, only extends for 6 months.

2. To be eligible for the subsidy under COBRA, an employee need only have been involuntarily terminated for a reason other than gross misconduct. To be eligible for the subsidy under Ohio’s mini-COBRA, the employee must have been involuntarily terminated and: (i) continuously insured for the 3 months prior to the termination; (ii) eligible for unemployment; and (iii) not covered or eligible for Medicare or any other group health coverage.

3. Under COBRA, the federal subsidy is retroactive to September 1, 2008. In comparison, Ohio’s mini-COBRA only covers terminations that occur on or after February 17, 2009. Both subsidies expire at the end of this year.

The Ohio Department of Insurance has published a model COBRA notice for small employers to use.

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

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

Department of Labor to step up enforcement; employers should step up self-audits

You may have noticed that I write a lot about wage and hour issues. I do so because it’s an issue that often gets even well-intentioned businesses into trouble. As if employers don’t already have it bad enough with the explosion of wage and hour class action litigation, this week brings us news that new Labor Secretary Hilda Solis promises to “reinvigorate the work” of the DOL’s Wage & Hour Division. Her quote comes in response to an investigation by the General Accounting Office, which reports that the Wage & Hour Division has mishandled hundreds of cases.

In yesterday’s New York Times, Steven Greenhouse reports:

The report pointed to a cavalier attitude by many Wage and Hour Division investigators, saying they often dropped cases when employers did not return calls and sometimes told complaining workers that they should file lawsuits, an often expensive and arduous process, especially for low-wage workers.

In light of the DOL’s planned stepped-up enforcement, employers must be extra vigilant in uncovering wage and hour violation in their own workplaces. A wage and hour audit feels like an unpleasant medical exam. The investigator is not necessarily limited to the alleged violation, and will turn your workplace upside-down, pouring through years of records and privately interviewing your employees. And, once you are on their radar, it is hard to get off. In other words, they’ll be back to make sure you are staying on the path of all that is right and just.

For employers, the best advice I can give is to get out ahead of this issue. Take a hard look at all of your current wage and hour issues: employee classifications, meal and rest breaks, off-the-clock issues, and child any workers. Make sure you are 100% compliant with all state and federal wage and hour laws. If you are not sure, bring in an attorney to check for you. If you are ever investigated by the DOL or sued in a wage and hour case, it will be the best money your business has ever spent.

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

Do you know? Pay for employee training time

Do you know? Lost of opportunities exist for employees to train, take educational classes, or otherwise better themselves – inside classes, outside classes, seminars, lectures, and continuing education requirements, to name a few. Whether attendance at these activities counts as “working time” under the Fair Labor Standards Act depends on four factors:

1. Is attendance outside of the employee’s regular working hours?
2. Is attendance truly voluntary?
3. Is the course, lecture, or meeting indirectly related or unrelated to the employee’s job?
4. Does the employee not perform any productive work during such
   attendance?

You must be able to answer “yes” to all four of these questions to consider an employee’s attendance non-working time.

For non-exempt employees, this determination is important for two reasons. First, working time must be paid at the employee’s regular rate. Secondly, it counts towards the number of hours worked in a work week for determining overtime eligibility.

This issue is even more important in today’s tight economy. Failing to consider these factors before requiring or suggesting training or education for employees could result in the added expense of unbudgeted wages and overtime.

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

Make every day “Associate Appreciation Day” to avoid unions

Wal-Mart has labeled today “Associate Celebration Day,” in honor of its announcement of $2 billion in financial bonuses and other awards to its hourly employees. USA Today has the details.

It should not come as a surprise that Wal-Mart, which fights union organizing as hard or harder than any other American employer, is against the Employee Free Choice Act. My cynical side cannot help but think that Associate Celebration Day is a subtle reminder to potential union members that Wal-Mart is a good place to work and takes care of its own.

Keeping a place of employment union-free is not a one-shot deal. I do not think that employees’ choice to unionize can be bought and sold with one-off bonuses and merchandise discounts. To stay union-free, employers should make every day Associate Celebration Day. To be prepared for the EFCA if it becomes law, companies should actively strive to be workplaces of choice for employees and not workplaces of opportunity for labor unions.

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

WIRTW #71

The big news of the week is the continued fallout from AIG’s bonus payments. Since Connecticut law governs the legality of whether AIG was required to make the payments under its retention plan, there is no better place to look for information on this issue than our good friend Dan Schwartz at the Connecticut Employment Law Blog.

In other economic news, Jay Shepherd at Gruntled Employees shares his thoughts on the CEO of a Boston hospital, who looked to his employees for ideas on how to save money and jobs.

The Business of Management gives some advice on how to properly handle layoffs.

Maribeth Minella at the Delaware Employment Law Blog has the top 10 layoff tips for employers. Tip #7 is the most important: “Seek the advice of legal counsel early.” We can then help guide you through the other 9.

Northeast Ohio’s Employers Resource Council’s Where Great Workplaces Start presents a timely list of some key HR terms.

Bob Sutton gives his ideas on the importance of quality in a business plan.

David Yamada at Minding the Workplace compares ethical employment practices to sweeping problems under the rug.

The Word on Employment Law with John Phillips opines that an employer is entirely within its rights to fire an employee who posts something on the Internet that negatively reflects on the job. Case in point: Employee disloyalty and Facebook.

We end this week’s review with a trio of posts on the Employee Free Choice Act:

• Michael Fox at Jottings By An Employer’s Lawyer points out the biggest mistake each side is making in the debate over the EFCA.

• LaborPains reports on some recent polling numbers that suggest that the EFCA might be gaining traction.

• Kris Dunn, The HR Capitalist, tries to untangle the spin coming from the labor unions about this bill.

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

Odd employees have a place – just maybe not in your workplace

I spent my summer between high school and college unloading trucks in a fabric warehouse. During my first week of work, one of my co-workers asked me if “Harlan” had gotten to me yet. As it turned out, Harlan was the warehouse joke. He held some strange ideas, and would take a stab at indoctrinating each new employee. Sure enough, later that same day Harlan cornered me and let me in on his view of the world – that a small cluster of Freemasons ruled the world from a secret office on the 36th floor of Rockefeller Center, that Lee Iacocca saved Chrysler by making a pact with Satan, and that the Israeli government would start the apocalypse by 2004.

I hadn’t thought about Harlan in years, but was reminded of him a few days ago when I came across Lizalek v. Invivio Corp. (7th Cir. 3/16/09):

Gary Lizalek’s religious beliefs make for a complicated identity. As a matter of faith, he understands himself to be three separate beings: (1) GARY C LIZALEK, “a trust that was created by the Social Security Administration … to generate assets for its beneficiary, the United States Government”; (2) Gary C. Lizalek, Trustee; and (3) Gary C. Lizalek, Steward, who “lends … consciousness and physical abilities to said Trust.” His employer asked that he stick with a single identity for professional purposes, but Lizalek refused. Shortly thereafter he was terminated. The district court held that this decision broke no law, and we affirm.

I could profoundly write about how a diligent background check could have revealed this employee’s oddities before he was hired, or about Title VII’s obligations to reasonably accommodate sincerely held religious beliefs unless it poses an undue hardship.

Instead, I’ll simply leave you with this thought. Most workplaces have someone like this employee. It’s up to you to figure out if this type of personality is the right fit for your business. Invivio hired him to deal with customers, and felt uncomfortable with him having that role in light of his bizarre behavior. Harlan was cutting fabric in a warehouse, and management did not mind his weird worldview, even if it sometimes distracted his co-workers. Every employee won’t be the right fit for every job; it’s management’s prerogative to weed out those employees that aren’t the right match for the particular business or position.

[Hat tip: Daily Developments in EEO Law]

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

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

New COBRA notices now available

Sometimes information just moves quickly to keep up with. The Department of Labor has just published the new COBRA notices, making my post of just a couple of house ago now partly obsolete. The notices are available here, from the DOL’s website.

Thanks to Michael Moore from the Pennsylvania Labor & Employment Blog, who saw my post from this earlier this morning and gave me the heads up.

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

Department of Labor posts wealth of information on new COBRA subsidy

As I’ve previously reported, the American Recovery and Reinvestment Bill of 2009, commonly known as President Obama’s economic stimulus bill, provides for a nine-month 65% subsidy of the COBRA premiums for involuntarily terminated employees. The Department of Labor has updated its website with lots of information for employer and employees on the subsidy: FAQS, flyers, posters, and other COBRA-related resources. Missing, however, is the one resource that would be the most useful to employers: a model form to provide to terminated employees. The DOL does say that it “is actively working to issue additional guidance regarding the COBRA premium reductions.” Perhaps it will issue the model COBRA notice along with this additional guidance. When the DOL gets around to publishing the model notice, I will be sure to post a link.

Maternity leave issues continue to confound employers

Maternity leave is one of the most misunderstood employment law issues for businesses. Two laws generally govern workplace maternity leave. First, the Family and Medical Leave Act, which mandates 12 weeks of maternity leave for employees who worked at least 1,250 hours in the prior 12 months for businesses with 50 or more employees. Secondly, the employment discrimination laws require that pregnant women be treated no differently than people with similarly debilitating conditions.
Ohio employers often misbelieve that if they are too small for FMLA coverage or if the FMLA does not cover a specific employee, they can deny maternity leave under a neutral leave of absence policy. As Nursing Care Mgmt. of America v. Ohio Civil Rights Commission (Licking Cty. 3/11/09) illustrates, under Ohio law employers that do not give all pregnant employees a reasonable amount of maternity leave, regardless of the employer’s leave policy, act at their own peril.
Pataskala Oaks Care Center had a neutral leave of absence policy that provided 12 weeks of leave for those employees with at least one year of service. After working at Pataskala Oaks for eight months, Tiffany McFee provided a note from her doctor stating that she was medically unable to work because of pregnancy-related swelling, and that she could return to work six weeks after delivery. Pataskala Oaks terminated her employment three days after delivery because she did not qualify for leave under its policy. The appellate court ruled that Pataskala Oaks committed unlawful sex discrimination by not granting McFee a reasonable maternity leave.
Ohio has specific regulations that cover maternity and childbirth leaves of absence – Ohio Admin. Code 4112-5-05(G). The key part of that section provides:

(2) Where termination of employment of an employee who is temporarily disabled due to pregnancy or a related medical condition is caused by an employment policy under which insufficient or no maternity leave is available, such termination shall constitute unlawful sex discrimination.

Pataskala Oaks argued that it had a leave policy, but McFee did not qualify under it because of her short tenure. The Court did not buy Pataskala Oak’s argument:

Termination of an employee disabled due to pregnancy is prohibited if the employer provides no maternity leave or insufficient maternity under its employment policy. In this case, it is undisputed that Pataskala Oaks had no maternity leave available to McFee at the time of her pregnancy disability….
Pataskala Oaks does not deny that McFee requested maternity leave, and that it terminated McFee without providing her maternity leave for a reasonable period of time. Pursuant to 4112-05-05(G)(2) such termination “shall constitute unlawful sex discrimination”.

This case is important for all Ohio businesses. Ohio law requires that all pregnant employee be provided a “reasonable” maternity leave, regardless of the the employer’s size, the employee’s tenure, or the language of a leave policy. If an employee asks for maternity on her first day of employment, it must be given and she must be restored at the end of the leave. The open issue is what “reasonable” means. Is it a fixed amount of time? Set by a doctor’s certification? Does it include bonding with a newborn or is it limited to medical necessity? These open questions will be answered on a case-by-case basis. What we know for sure is that zero maternity leave is a quick road to liability.

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

Do you know? Mandatory unpaid time off may affect salaried employees’ exemptions

Do you know? Many companies are turning to mandatory work furloughs or reduced work schedules as creative ways to save wages without having to lay off employees. These programs are designed to control the number of hours worked by employees and the resulting amount of wages paid. When applied to salaried exempt employees, however, in increments of other than a full week, furloughs and reduced work schedules can jeopardize exemptions under the Fair Labor Standards Act.

The FLSA provides an exemption from the minimum wage and overtime requirements for any employee employed in a bona fide executive, administrative or professional capacity. To qualify as exempt, most executive, administrative, and professional employees must, among other factors, be paid on a salary basis. Generally, an exempt employee must receive his or her full salary for any week in which the employee performs any work, without regard to the number of days or hours worked. In no event can an employer take any deductions from an exempt employee’s salary for full or partial day absences occasioned by lack of work. Thus, if an employer schedules an exempt employee for less than 40 hours in a week, the employee must still be paid a full week’s salary, or risk placing the employee’s exemption in jeopardy.

Reduced work schedules and furloughs, while very much in vogue, raise a host of complex legal issues. This post only discusses one such issue. If your business is considering implementing such an idea, contact your employment counsel to ensure that your plan complies with all wage and hour, discrimination, and other labor and employment laws.

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

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

Enjoying the small things in these trying times

When I attended Binghamton University, nee SUNY-Binghamton, in the early 90s, it’s sports programs were Division III. It was small-time, no television, 500 people in the West Gym, college basketball, to which I held season tickets for my four years on campus. Imagine my joy, then, to sit in my family room Saturday morning and watch Binghamton on ESPN2 play for its first conference title and trip to March Madness since the jump to Division I eight year ago. When the final buzzer sounded, and the announcers congratulated Binghamton on its historic win, and thousands of crazed fans flooded the floor of the school glistening new Events Center, I am not embarrassed to say that I shed a tear for my alma matter.

We live in depressing times. You can’t open a newspaper or surf the web without reading news about the sinking stock market, failing banks, high foreclosure rates, and record job losses. As an employment lawyer, those layoffs, frankly, are good for business. Yet, every time my phone rings and I field a call about handling the mechanics of another layoff at some other company, my heart sinks a little. I’m grateful for the work, and somber that what I do for a living can have such a profound effect on the lives of people that I likely will never meet.

Binghamton’s foray into big time college sports got me to thinking, in these trying times, we really do need to sit back and enjoy the small things. Whatever your small thing might be – a picture your daughter colored for you, a quiet conversation with someone you love, or picking your beloved alma mater to wear Cinderella’s slipper in the office pool – embrace it, even for a moment. At the end of the day, it’s the small things in our lives that are often the biggest of all, and help us cope with the big things that we too often allow to define who we are.

Oh, and go Binghamton, beat Duke.

[Update: for more on Binghamton basketball, I cannot more highly recommend Tzvi Twersky article in Slam Magazine: Great Blue Times at Binghamton U.]

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

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

WIRTW #70: The Employee Free Choice Act Edition

On Tuesday, Congressional Democrats introduced the Employee Free Choice Act in both Houses of Congress. This legislation will present the most contentious Congressional debates Washington has seen in at least a generation. If passed, it will radically alter union/management relations by permitting the certification of labor unions without a secret ballot election and by mandating binding arbitration for all first collective bargaining agreements. Because I can’t possible provide all of the coverage due this important legislation, this week’s WIRTW is dedicated to the EFCA:

• If you want to read the bill for yourself, the EFCA Report has links to its full text.

• If you can’t stand the thought of reading legislation, several blogs have useful summaries of the EFCA’s key provisions: The Labor & Employment Blog; the Washington Labor & Employment Wire; Mark Toth’s Manpower Employment Blawg; and the Employeescreen IQ Blog.

• The U.S. Chamber of Commerce’s ChamberPost details its efforts to fight against the EFCA’s passage, busts some common union myths about the ECFA, and provides an economic analysis against the EFCA. The most striking number is an estimate that the passage of the EFCA would cost our country 600,000 jobs the following year.

• The Word on Employment Law with John Phillips has another take on the EFCA and the economy.

• Frank Roche’s KnowHR Blog asks if your employees are ready to take the heat from unions if the EFCA passes.

• LaborPains.org posts a video of MSNBC’s liberal standard-bearer, Rachel Maddow, and suggests that she read the text of the bill before she editorializes on it.

• World of Work links to another video, this one by the SIEU, which comments on management’s use of “scare tactics” against the EFCA.

• HR Observations talks about the dangers of the EFCA’s lesser-known arbitration provisions.

• There are a couple rays of sunshine: ECFA Updates reports that Senate Democratic support for the bill might be wavering, and the EFCA Report suggests that some compromises might already be in the works to get this bill passed.

• Finally, Daniel Nichanian at Campaign Diaries has a detailed breakdown of where the Senate stands today on both support for the bill and support of a cloture to end the guaranteed Republican filibuster on the EFCA. With 44 Senators (which includes Al Fraken, who has not yet been formally seated) either co-sponsoring or openly supporting the bill, Daniel focuses on the 16 swing votes, Senators who have supported the bill in the past but have not yet taken a stand on the 2009 version. The Senate Democrats will have enough votes to pass the EFCA; the question is whether they will have enough votes for the cloture. Stay tuned - this promises to be very exciting.

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

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

Economy Down – Lawsuits Up

Has your company laid off or fired anyone recently? Have you recently been sued for discrimination? According to numbers to be published by the EEOC, the odds are that if you haven’t been sued, you will be.

The EEOC has released its caseload numbers for fiscal year 2008, and the upswing in the number of claims from the prior year is dramatic. From the EEOC, courtesy of the Wall Street Journal:

Type of Discrimination	2007 EEOC Charges	2008 EEOC Charges	Change from 2007 to 2008
Age	19,103	24,582	28.7%
Retaliation	26,663	32,690	22.6%
Sex	24,826	28,372	14.3%
Religion	2,880	3,273	13.6%
National Origin	9,396	10,601	12.8%
Race	30,510	33,937	11.2%
Disability	17,734	19,453	9.7%
Total	82,792	95,402	15.2%

 

In this economy, nearly every termination and lay-off should be considered high-risk. With little to lose, more and more employees are taking fliers on discrimination claims in hopes of scoring a settlement to help cushion the job loss blow.

Terminating or laying off an employee without getting employment counsel involved before the termination is asking for a lawsuit. Companies should be working with their attorneys to:

1. Vet group layoffs and individual terminations to confirm that the decisions are lawful and non-discriminatory.

2. Ensure that protected groups are not otherwise disproportionally represented in group layoffs.

3. Hedge their liability risks be offering severance packages in exchange for releases signed by departing employees.

We attorneys cannot offer a magic pill to immunize against lawsuits. What we can offer is proactive counseling so that you are best positioned to defend yourself when the lawsuit comes.

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

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

Do you know? Guns at work

Do you know? While the 2nd Amendment famously guarantees the  right to bear arms, Ohio law protects the right of employers to prohibit weapons of any kind from entering the workplace.

Ohio Revised Code section 2923.126(C)(1) provides:

Nothing in this section shall negate or restrict a rule, policy, or practice of a private employer that is not a private college, university, or other institution of higher education concerning or prohibiting the presence of firearms on the private employer’s premises or property, including motor vehicles owned by the private employer.

In Plona v. UPS (3/6/09), the Sixth Circuit recently confirmed the right of an employer to terminate an employee for violating a no-weapons policy. In that case, UPS fired Plona for violating its policy against possessing firearms on its premises after he was found with a pistol in his car. Plona claimed that the termination violated Ohio’s public policy in favor of the right to bear arms. The Court correctly disagreed:

Although the Ohio Constitution provides a general right to bear arms, the state certainly does not have a “clear public policy” of allowing employees to possess firearms on the premises of their private employers. To the contrary, the Ohio legislature has specifically provided that employers may limit their employees’ rights to bear arms…. UPS was thus plainly within its rights … to prohibit its employees from possessing firearms in the parking area.

If your business does not have a policy banning weapons anywhere on its premises, consider contacting your employment counsel to have a policy drafted.

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

Employee disloyalty and Facebook

Dan Leone was a lifelong fan of the Philadelphia Eagles. One could  only imagine that when his favorite team hired him as a game-day stadium employee, it was his dream job. Last week, the Denver Broncos signed free agent safety Brian Dawkins, the team’s emotional leader and one of the franchise’s historical great players. Upset with the Eagles’s decision not to resign Dawkins, Leone chose to vent on his Facebook page, updating his status: “Dan is [expletive] devastated about Dawkins signing with Denver. . .Dam Eagles R Retarted!!"

The Philadelphia Inquirer reports on the team’s termination of Leone:

Less than two days after posting the Dawkins remarks, Leone said, he was contacted by Leonard Bonacci, the team's director of event operations. According to Leone, Bonacci said they needed to talk about Leone's Facebook page, and Leone agreed. Leone - who deleted the comment - figured that the two would sit down and that he could apologize to Bonacci in person. But Leone said Bonacci never got back to him after that.

Two days later, Leone said, he received a call from Rachel Vitagliano, the team's guest services manager. Leone said she fired him over the phone. The conversation lasted less than 10 minutes.

No warning. No suspension. No face-to-face meeting. Just a quick call to tell Leone he'd been terminated.

All over the Internet, the Eagles are taking a beating for Leone’s. For example, according to an ESPN.com poll, 80.5% believe the Eagles were not justified in firing Leone.

Let me take the other side. It may seem heavy-handed for the Eagles to take a stand against a part-time seasonal employee. If an employer wants to effectively enforce policy, it has to do so across the board. The Eagles are sending the message that it will not tolerate its employees publicly making negative statements about the organization. While some will consider it unfair for this message to be sent at Leone’s expense, this employer will be better served the next time, when it is a high level front office employee instead of a part-time stadium employee. In employment law, consistency is key, and to be consistent, someone always has to be first.

Do you know? will return tomorrow, with a post on banning guns inside and outside the workplace.

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

Ohio Supreme Court to decide workplace breastfeeding rights

A few months ago I wrote on the lack of clarity under Ohio law on the rights of breastfeeding rights of moms at work. This week, the Ohio Supreme Court will take up this issue. It will hear the appeal of LaNisa Allen, a former employee of Totes/Isotoner, who sued the company for gender discrimination after it fired her for taking unscheduled restroom breaks to pump breast milk.

According to the Dayton Daily News:

She said other Totes workers weren’t required to seek permission for extra restroom breaks to relieve discomfort from menstrual symptoms or the need for frequent urination.

Allen’s attorneys say it’s gender discrimination because she was fired to relieve discomfort due to lactation, a condition exclusive to women.

Totes, which prevailed against Allen in a 2008 trial and a subsequent appeal, argues that the company didn’t discriminate because breastfeeding doesn’t legally constitute an illness or medical condition. The company says there is legal precedent showing that employers don’t have to give extra breaks to breastfeeding women.

This case should hinge on the answers to these questions: Are men allowed to take a break when nature calls? Has Totes ever fired a male employee for going to the bathroom? What about the treatment of employees who take smoke breaks during the work day?

A rule against breaks for lactation will, by its very nature, only apply to women. If Totes does not similarly discipline non-lactating employees who take breaks of similar duration during the work day for other reasons, it should have a hard time justifying Allen’s termination.

Before you institute a policy prohibiting pumping at work, or terminate a lactating employee, consider how you’ve treated other employees’ breaks during the work day. If you can’t find a consistent pattern of discipline or termination of similar non-lactating employees, you should reconsider the decision.

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

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

WIRTW #69

Social networking (whether blogging, Facebook, LinkedIn, Twitter, or the myriad other available options) remains a hot topic for HR departments everywhere. My fellow bloggers have lots of good information on this topic this week:

• The Connecticut Employment Law Blog, on how to properly manage employees’ use of Twitter.

• The Delaware Employment Law Blog, on using Facebook profiles in litigation against former employees.

• Evil HR Lady, on the pluses and minuses of blogging for employees.

• California Workforce Resource Blog, on the value of Googling job applicants.

This week brought us the new regulations on the Genetic Information Non-Discrimination Act, which the LawMemo Employment Law Blog conveniently links for everyone.

The Washington Labor & Employment Wire reports on the introduction of the Arbitration Fairness Act of 2009, which would invalidate all pre-dispute arbitration agreements mandating the arbitration of any employment or civil rights disputes.

The Business of Management reminds employers to be diligent with departing employees’ proprietary information.

HR World gives some information on how to handle hourly employees whose shifts overlap this weekend’s time change.

This week’s review ends with some good news: Where Great Workplaces Start, the blog of the Employers Resource Council, reports on some recent job creation numbers for Ohio.

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

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

Employee Free Choice Act to be Introduced in House next week; President vows support

ShopFloor.org, the blog of the National Association of Manufacturers, is reporting that the Employee Free Choice Act will be introduced next Monday, March 9, in the House of Representatives. This news is not that surprising. The EFCA will likely pass that half of Congress, where the Democrats enjoy a sizeable majority and the Republican minority cannot filibuster. The real fight, which could be unlike anything we have seen in a generation, will be in the Senate, where the EFCA’s supporters will face a fierce battle to reach the 60 votes they need to ensure its passage.

Until this week, the White House has been quiet on this issue. On Tuesday, in pre-recorded remarks to the AFL-CIO Executive Council, President Obama gave his support for the EFCA:

I want to repeat something that those of you who joined us for the Task Force announcement heard me say: I do not view the labor movement as part of the problem. To me, and to my administration, labor unions are a big part of the solution. We need to level the playing field for workers and the unions that represent their interests – because we cannot have a strong middle class without a strong labor movement….

And as we confront this crisis and work to provide health care to every American, rebuild our nation’s infrastructure, move toward a clean energy economy, and pass the Employee Free Choice Act, I want you to know that you will always have a seat at the table.

This language can be viewed one of two ways – pandering remarks to a partisan crowd, or a promise to pass and sign the legislation. Given the President’s words on this issue just prior to his inauguration, the truth is probably somewhere in the middle:

Regardless, there are certain steps companies should be taking now to prepare for the EFCA:

1. Foster open employee communication. Do what you can to give employees a reason not to look outside the workplace for a voice to air their concerns.

2. Train supervisors in how to deal with employee issues. Fairness, evenhandedness, and responsiveness are crucial in preventing unions from gaining a foothold.

3. Implement a no-solicitation policy to minimize union’s access to employees.

[Hat tip: Pennsylvania Labor & Employment Blog]

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

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

How not to fire an employee

Today, I’m going to tell you a little story. It’s about a stay-at-home mom who works part-time from home. She’s worked for the same company for over a year, and performed well. Every three months, the employer would renew her tenure for another three-month period. Recently, the mom asked for and received time some time off to deal with a medical issue of one of her children. While she was out on leave, she received an email from her manager telling her that her position was being eliminated and that her services would no longer be needed.

The legal issues in this vignette are relatively easy to spot: ADA (based on associational disability), FMLA (if she worked enough hours for the company), and GINA (depending on the nature of her child’s medical condition and whether her employer is in possession of genetic information).

This story, though, raises a larger issue. All legal issues aside, is this employee more likely or less to sue following her termination? According to the Settle It Now Negotiation Blog, there are four main reasons why an employee might file a lawsuit:

1. Feelings of unfair, insensitive treatment at the time of termination.
2. Lack of notice of the termination.
3. Certain groups – women and minorities - are especially likely to sue.
4. Perception of poor on-the-job treatment.

Our story violates at least the first three of these rules.

This employer, however, made one key mistake that helps fan the flames of bad feelings and could lead to a lawsuit – communicating the termination by email. Email is cold and informal, and should never be used to fire an employee.

The moral of this story – in preventing lawsuits by terminated employees, how the employee is fired is as important, if not more important, that why the employee was fired.

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

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

Do you know? Ohio law protects employers that give negative job references

There are more people looking for work than at any time in the last 25 years. If you happen to be one of the companies hiring at the moment, you will likely have more applicants than you will know what to do with. How do you sift the good candidates from the bad, those who were laid off through no fault of their own from those who were terminated for poor performance? References are one tool, yet many employers seldom provide them out of a mistaken fear that they can be sued for giving a poor one.

Do you know? Ohio has a specific law, R.C. 4113.71, that protects employers that give negative job references. One employer can give another employer information about an employee’s job performance without fear of liability, unless:

1. the former employer knows the information is false, or makes the disclosure with the intent to mislead, in bad faith, or with a malicious purpose, or

2. the information is provided in violation of the employment discrimination laws (for example, an employer gives good references to white employees and bad references to black employees).

Thus, the only catch in giving employment references is that the information must be truthful and non-discriminatory. Business should not fear accurately responding to inquiries from other business about past employees. The next time you are asked for a reference on a former employee, consider responding accurately and honestly. Who knows, you might get the same courtesy in return.

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

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