I don't like Mondays (tell me why)

There is no worse feeling than coming into your office bright and early on a Monday morning, hitting the power button on your computer, and... nothing. That's what happened to me this morning. 7 am - no computer, no help desk, and nothing I can do about it. So here I am on my smart phone with my Monday morning tip of the day. Don't be so dependent on technology. Otherwise, you'll be stuck at your desk wondering how to kill time until your 9 am deposition starts (with no access to your witness outline because it's on your computer. Technology drives nearly every aspect of our society, including our businesses and our workforces. Think about disaster planning for your business, and how your business would function if it had to do so without technology for even a day. Scary exercise, but maybe one that we should all do so we don't get caught with our servers down one day. As for me, I'm off to dig into my file cabinets and see what I can get done in the next two hours.

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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 #137

Happy 20th Birthday to the ADA. Some notable bloggers share their thoughts on the ADA at 20.

• ADA’s 20th Anniversary – from Walter Olson

• ADA’s anniversary, cont’d – from Overlawyered

• ADA Turns 20, Still Has Growing Up To Do – from Workplace Diva

• ADA anniversary approaches – from Warren & Hays Employment Law Blog

• EEOC Celebrates 20th Anniversary of the Americans with Disabilities Act – from Wyatt Employment Law Report

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

Discrimination

• The Basics: What It Takes To File a Employment Discrimination Lawsuit – from Dan Schwartz’s Connecticut Employment Law Blog

• Settling Gender Discrimination Class Actions (Part I) – from Workplace Fairness

• Ninth Circuit Approves of “Preemptive” Fitness for Duty Examination – from World of Work

• An “Old bully” but not the victim of age discrimination – from John Holmquist’s Michigan Employment Law Connection

• No Matter How Bad it Looks, Don't Rush to Judgment: Do an Investigation – from Debra Reilly’s Workplace Investigations Blog

• Minimizing Risk of Retaliation Claims Is As Easy As A B C – from The Proactive Employer

• Patient’s preference for white aides does not trump health care employer’s duty to its employees to abstain from race-based work assignments – from Employment Law Matters

• Shifting Reasons Still Help Show Pretext – from Tom Crane’s San Antonio Employment Law Blog

Technology

• The Right to Photograph Public Places – from Philip Miles’s Lawffice Space

• Enterprise iPads: Policies on personal iPads and remote access – from The Apple Core

• Ninth Circuit Provides Some Relief for Employers and Executives Anonymously Trashed on the Web – from Workplace Privacy Counsel

• 23 Things Not To Write In An E-mail – from NPR’s Planet Money

Wage & Hour

• Employee’s Headache No Excuse For Insubordination – from FMLA Insights

• 77 Cents and Gender Discrimination: The Wrong Conclusion – from Stephanie Thomas at Compensation Cafe

• FMLA Case Update – Lane v. Pontiac Osteopathic Hospital – from FMLA law

• Watch for more FMLA claims about caring for aging parents – from Work Matters

Background Screening

• Is Continuous Employment Screening on the Rise? – from Nick Fishman at the employeescreenIQ Blog

• The Perils of Making Hiring Decisions With Personal Info Found Online – from TLNT

• Checking Credit Reports? Check Your State Law First – from Nolo’s Employment Law Blog

Miscellaneous

• Financial Reform: What Employers Can Expect – from Hunton Employment & Labor Law Perspectives™

• Manufacturers’ Hiring Stymied? – from The Word on Employment Law with John Phillips

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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.

If you want something to be a trade secret, don’t publish it

While it seems like common sense, for something to be a trade secret it must actually be secret. Rogers Indus. Prods. v. HF Rubber Machinery (Ohio Ct. App. 7/21/10) [pdf] serves as a good illustration. Rogers alleged that the various defendants had used confidential information about its tire curing press to copy the unique design of its system. Rogers’s problem was that it had publicly disclosed its press design in a patent application before the alleged trade secret theft. The court concluded there is no trade secret protection for confidential information that is disclosed in a published patent application, but that a factual issue existed as to whether the patent application disclosed the specific trade secret at issue.

Aside from not publishing trade secrets in patent applications (or other public documents), what are some of the other things your company should be doing to protect its trade secrets?

• Limited access on a need-to-know basis.
• Documents kept under lock and key.
• Password-protected data files.
• Confidentiality and non-disclosure agreements for anyone with knowledge or access.
• Lawsuits to recover stolen or misused secrets.

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

A chocolate cupcake by any other name…

The EEOC has settled a race and sex discrimination case against a local temporary agency, Area Temps. The EEOC alleged that the agency used code words to identify the race, color, and sex of candidates it placed with employers. For example, hockey player = white male, small hands = females, basketball player = African American men, and chocolate cupcake = young African American women. The EEOC alleged that Area Temps would attach note cards containing the coded phrases to job applications submitted to employers. The settlement will pay $650,000 to a nationwide class of 11,000 people.

The easy lesson from this case is that businesses should never use code words as a proxy to identify protected characteristics such as race and sex. There is also a deeper lesson to take away from this story. Claims against two of the employers who are alleged to have used the coded phrases to make job decisions remain pending in federal court. Employers are often jointly responsible with temporary agencies for acts of discrimination. In dealing with temporary agencies, businesses should be careful not to perpetuate discrimination fostered by the agency. Also, to the extent that you are able, businesses should negotiate indemnification clauses in staffing agreements with temporary agencies, so that if your business is sued for the discriminatory act of the agency, it will defend you (pay your attorneys’ fees) and hold you harmless (pay your portion of any settlement of or judgment on the claims).

Do you know? Content of FMLA medical certifications

So often we get bogged down in the minutia of an employment law issue or a specific case. I thought that today, we’d take a step back and focus on something really basic—the mechanics of FMLA medical certifications.

When an employee take an FMLA leave for his or her own serious health condition, or that of a family member, an employer may require that the employee obtain a medical certification from a health care provider to certify that the medical condition qualified under the FMLA. The certification may seek the following information:

1. The name, address, telephone number, and fax number of the health care provider and type of medical practice/specialization.

2. The approximate date on which the serious health condition began, and its probable duration.

3. A statement or description of medical facts regarding the patient’s health condition for which FMLA leave is requested. The medical facts must be sufficient to support the need for leave. Such medical facts may include information on symptoms, diagnosis, hospitalization, doctor visits, whether medication has been prescribed, any referrals for evaluation or treatment (physical therapy, for example), or any other regimen of continuing treatment.

4. If the employee is the patient, information to establish that the employee cannot perform the essential functions of the job, the nature of any other work restrictions, and the likely duration of such inability.

5. If the patient is a covered family member with a serious health condition, information to establish that the family member is in need of care, and an estimate of the frequency and duration of the leave required to care for the family member.

6. If an employee requests leave on an intermittent or reduced schedule basis for planned medical treatment of the employee’s or a covered family member’s serious health condition, information to establish the medical necessity for such intermittent or reduced schedule leave and an estimate of the dates and duration of such treatments and any periods of recovery

7. If an employee requests leave on an intermittent or reduced schedule basis for the employee’s serious health condition, including pregnancy, that may result in unforeseeable episodes of incapacity, information to establish the medical necessity for such intermittent or reduced schedule leave and an estimate of the frequency and duration of the episodes of incapacity

8. If an employee requests leave on an intermittent or reduced schedule basis to care for a covered family member with a serious health condition, a statement that such leave is medically necessary to care for the family member, which can include assisting in the family member’s recovery, and an estimate of the frequency and duration of the required leave.

The Department of Labor has published two forms for employers to use for a health care provider to certify the need for FMLA leave: WH-380-E (for an employee’s own serious health condition), and WH-380-F (for a family member’s serious health condition). While these forms are optional, the DOL approves their use, they are available for free, they cover all of the permitted information, and leave no room for over-reaching. In other words, if you’re not using these forms, you should be.

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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.

DOL provides guidance on break time for nursing moms

One of the lesser heralded provisions of the Patient Protection and Affordable Care Act (better known as the Health Care Reform Bill) is section 4207, which provides reasonable break time for nursing mothers. Unlike many provisions of the health care bill, which do not go into effect for several years, break times for nursing mothers went into effect as soon as President Obama signed the bill into law on March 23, 2010.

Last Friday, the Department of Labor’s Wage & Hour Division published Fact Sheet #73, which provides guidance to employers implementing this new break time requirement. Here’s the highlights:

• Employers must provide “reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth each time such employee has need to express the milk.” The frequency and duration of each break will likely vary from employee to employee, and employers must provide breaks as frequently as needed by the nursing mother.

• Employers must provide “a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.” A bathroom, even if private, is not allowed. The location must be functional as a space for expressing breast milk. If the space is not dedicated to the nursing mother’s use, it must be available when needed. A space temporarily created or converted into a space for expressing milk or made available when needed by the nursing mother is sufficient provided that the space is shielded from view, and free from any intrusion from co-workers and the public.

• This break time requirement only applies to non-exempt employees.

• Employers with less than 50 employees are not subject to this break time requirement if compliance would impose an undue hardship (defined as the difficulty or expense of compliance for a specific employer in comparison to the size, financial resources, nature, and structure of the employer’s business).

• Employers are not required to compensate nursing mothers for breaks taken for the purpose of expressing milk. However, where employers already provide compensated breaks, an employee who uses that break time to express milk must be compensated in the same way that other employees are compensated for break time.

Because Ohio does not have its own law that requires lactation breaks, Ohio employers should pay careful attention to this provision of the health care bill and the new requirements it imposes on all but the smallest of our state’s employers.

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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 #136

When I write I post about which I’m particularly proud, I’ll ask my wife for her opinion, which is what I did last night for my post from yesterday on assholes. Her comment—that all of my readers would think that I had an awful time at the concert, which couldn’t be further from the truth. The music was awesome, we had a great dinner beforehand, and it’s always a joy to spend some rare time with my wife without kids.

Now that I’ve clarified, here’s what I read this week:

Bullying

• When “sabotage” becomes illegal – from Michael Fox’s Jottings By An Employer’s Lawyer

• New Laws Target Workplace Bullying – from Adam Cohen at Time.com

• With Time and Parade, the workplace bullying legislative movement goes mainstream – from David Yamada’s Minding the Workplace

Wage & Hour

• Clarity In Labor Law? You MUST Be Kidding – from Hartford Business Journal Online

• Independent Contractor Safe Harbor Now a Minefield – from Michael Haberman’s HR Observations

• DOL to Conduct “FMLA survery”: Is More Regulatory Change on the Horizon? – from FMLA Insights

• When Plaintiff’s Lawyers Go Too Far – from Florida Employment Law Blog

• Proactive Analyses as Management Conundrum? – from Stephanie Thomas’s The Proactive Employer

• Children at Work: Employers May Face Stiff Fines for Employing Minors – from CPEhr

• Here Comes An Avalanche of FLSA Cases: Employers Be Aware, Be Proactive! – from Wage & Hour - Development & Highlights

Technology & Social Media

• Social Media Use in the Workplace Is on the Rise – from Forbes.com Velocity Blog

• Corporate Social Media Policies: The Good, the Mediocre, and the Ugly – from Fast Company

• It’s Like Alanis Morissette Was Using Her iPhone in her Government-Issued Cube – from Kris Dunn, The HR Capitalist

• Use Twitter, Get Fired – from Molly DiBianca at the Delaware Employment Law Blog

• Facebook hits 500 million user milestone – from Boy Genius Report

• When Everyone Has Their Own Smart Phone, What Does That Mean for the “Workplace”? – from Dan Schwartz’s Connecticut Employment Law Blog

Competition & Trade Secrets

• Compete, Solicit, Tell Secrets: Is It Legal? Is It Wise? – from Going Concern

• Motorola sues Huawei and several former employees for stealing wireless trade secrets – from Engadget Mobile

• Minimizing the Risk that a New Hire Will Lead to Trade Secret Litigation: Some Simple Preventive Steps – from Trade Secrets and Noncompete Blog

• FusionStorm and Employees Get Hit With $10 Million Trade Secret Theft Verdict – from Trade Secrets Blog

Discrimination

• After the investigation: what to do when the complainant is unhappy with the results – from Sindy Warren at the Warren & Hays Employment Law Blog

• House Rules: Sex, Cocaine, and Strip Clubs – from Philip Miles’s Lawffice Space

• A Modest Proposal for Maternity Leave – from You’re the Boss Blog

• Employers Beware: ADA Claims On The Rise Now And Into The Foreseeable Future – from Hunton Employment & Labor Law Perspectives™

Labor Relations

• ScienceBlogs.com Bloggers Go on Strike, Issue Demands to Management – from Work in Progress

• A Work Stoppage We Can All Support – from Jeffrey Hirsch at the Workplace Prof Blog

Miscellaneous

• Celebrating Junior Achievement – from The ChamberPost

• Credit Reports: The Value (and Risk) to HR Professionals – from Nick Fishman at TLNT

• Five Ways Pixar Makes Better Decisions – from Tom Davenport at the Harvard Business Review

• Dodd-Frank amends SOX; creates new whistleblower protections – from GT LE Blog

• How Would The Dalai Lama Tell Someone To Fuck-Off? – from Bob Sutton

• A classic offers lessons on firing employees – from Work Matters

• HR - Friend or Foe – from Workplace Fairness

• The Elements of Communication: Lawyerium – from KnowHR 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.

We are devolving into a society of assholes (and what it means to your workplace)

I went to a concert last night—Jack Johnson to be specific, which, by all accounts, was a low-key and mellow way to spend an evening. Or, at least the music was. But as a I sat and watched the people around me, I was surprised at how apologetically rude people have become. Smoking in clearly marked no-smoking areas, poaching a ticketed seat and scoffing when you have the nerve to ask for it back, and leaving vomit marking a breadcrumbed trail to the exit. Trust me, I’m no shrinking violet. I’m an employment lawyer, and I deal with people at their absolute worst (and often relish in it). But I look at my kids (4 and 2), who I am trying very hard to raise with manners, politeness, and respect for others, and I am starting to think that I have no chance once they get out into the world. And it makes me sad, angry, and scared.

I write this not because I think it will change anyone’s behavior. The fact is, people are who they are.

How they act at a Jack Johnson concert is likely how they will act at home, and how they will act in your workplace. Sure, they can put on a mask and try to hide it as best they can, but ultimately who they are will rise to the surface, and it will cause you a problem. Take, for example, the recent story about an altercation between two attorneys outside a courthouse (from the ABA Journal):

A 46-year-old Philadelphia area lawyer was briefly jailed and manacled last week after allegedly punching an opposing counsel who reportedly called him stupid, bald and an unprintable word.

The bottom line is that we need to adjust to the incivility in our society and make the best of it, because I don’t think it’s going to get any better. We can’t legislate niceness. Laws (like the anti-bullying movement) will not change behavior for the better, but will merely make it more difficult and more expensive for businesses to manage their workforces.

For more thoughts on assholes in the workplace, I highly recommend the thoughts of Bob Sutton, who has written extensively on the issue in his book, The No Asshole Rule.

I leave you with the (maybe) apropos music of Jack Johnson and his song, Good People:

Why employees sue

At the conclusion of a day-long plaintiff’s deposition in an FMLA and disability discrimination lawsuit, it was clear to me that my client had not only not violated any laws, but bent over backwards to do everything possible to accommodate the plaintiff. The company had treated this employee so well, I asked a question that I had never asked in another deposition—why are you suing?

It seems to me that they treated you fairly. They gave you an initial medical leave of more than 12 weeks, they provided you every accommodation you requested for your medical conditions, they provided you a second medical leave of more than 12 weeks, and you received several raises during your employment. Why are you suing this company?

The answer she gave floored me—not because it was damaging to my case, but because something that seemed so trifling caused the lawsuit. Her answer: “They started fighting my unemployment.”

Employees sue when they feel disrespected or when they perceive unfair treatment. It is not simply enough for an employer to treat employees well during their tenure. Employers should also strive to treat employees well in conjunction with their terminations and even thereafter. Sure, there are exceptions. I would never suggest that a serial harasser deserves a pass, or that the employee who stole from you should receive unemployment or a good job reference. If you don’t want to be sued, though, don’t make a terminated employee feel like a common criminal by having security escort them to the door (unless you legitimately and reasonably perceive a safety risk). It’s okay not to give a glowing recommendation to a marginal ex-employee, but resist the urge to trash him or her to a prospective employer. Don’t fight unemployment except in the most clear-cut cases. These little things could go a long way to an ex-employee reaching the decision to let bygones be bygones and not see you in court.

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

Today’s USA Today reports that the Obama Administration is going to make a renewed push for the passage of the Paycheck Fairness Act:

President Obama plans to press Congress today to pass pay-equity legislation that would make it easier for women to sue employers who pay them less than their male counterparts, the White House said Monday. “Women deserve equal pay,” White House senior adviser Valerie Jarrett said in an interview, citing government statistics that show women earn 77 cents for every dollar men earn. “It’s a very fundamental right.”

It would be hard to make an argument against this bill if all it did was guarantee equal pay for equal work. The Paycheck Fairness Act, however, goes much further by limiting the ability of businesses to defend against such claims, which should make businesses very concerned that this issue has reached the top of the President’s agenda.

The Paycheck Fairness Act (the full text of which is available here) makes 5 key changes to federal wage and hour laws:

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

Employers should be very worried about the prospects for Paycheck Fairness. If it passes, employers will face increased risk and higher damages for sex discrimination wage claims. Perhaps the heavier burden, though, will be the significant compliance obligations from newly-empowered federal agencies.

Court recognizes “sabotage defense” in retaliation cases

Alvarez v. Royal Atlantic Developers, Inc. (11th Cir. 7/2/10) [pdf] asks this question: Can an employee who engages in protected activity pursue a retaliation claim if an employee slated for termination is fired sooner rather than later because of an exercise of protected activity? The court recognized that in certain circumstances, a legitimate and reasonable fear that an irate employee will use his or her position within the company to sabotage operations will justify termination, even if the company finds about the risk from the employee’s exercise of protected activity (such as a written complaint letter).

When Eliuth Alvarez got wind of her boss’s plans to replace her as the company’s controller, she wrote a letter of protest, complaining, among other things, about what she perceived to be discrimination against her based on her national origin. The company accelerated Alvarez’s termination because of the letter. It argued that it had to get rid of Alvarez when it did because the it feared that she might vindictively use her position as controller, with access to company computers and bank accounts, to sabotage operations.

The court recognized that in certain circumstances, such a fear is justified:

Suppose an employee with reason to believe that she has been discriminated against works in the control room of a nuclear power plant, and in her letter complaining of discrimination says that: “I’m mad as hell and I’m not going to take it anymore!” Or suppose she is a pilot and makes that statement in her letter of complaint. Or suppose she was not in a position to endanger the public, but her letter complaining of discrimination makes it clear that she is psychologically unstable and a danger to those who work around her. Discrimination laws do not require that their goals be pursued at the cost of jeopardizing innocent life or that employers tolerate a serious risk that employees in sensitive positions will sabotage the company’s operations. We are confident that if an employer removes an employee because of a reasonable, fact-based fear of sabotage or violence, the anti-retaliation provisions of our laws will not punish that employer for doing so.

In the specific circumstances of this case, however, the court was not persuaded that fear of sabotage motivated the employer’s decision to move up the termination:

Unless Royal Atlantic convinces a jury that it had a reasonable basis for fearing that unless it fired her immediately Alvarez would sabotage its operations or harm others, and there was no less drastic means of reliably preventing that other than firing her, Alvarez will be entitled to damages for the length of time she would have remained on the job if she had not sent the October 3, 2006 letter complaining of discrimination.

A few questions to consider if you a planning on using this defense in your next retaliation case:

• Did the employee’s position offer the opportunity to do real harm to the company?

• Did the employee make real threats against the company or anyone else, or provide a legitimate and reasonable basis to infer that he or she would disrupt operations?

• Did the company have no options other than termination (such as reassigning duties until a replacement could be hired) to protect itself from the feared sabotage?

• Did the employee’s continued employment pose a physical danger to other employees or the public?

The more of these questions to which you can answer yes, the better chance you will have to prevail on this defense.

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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 #135

The post of the week belongs to Dan Schwartz at the Connecticut Employment Law Blog, who correctly identifies the major shortcomings with the National Sexual Harassment Registry recently launched by eBossWatch. It is a must read for anyone with a job.

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

Litigation

• Depositions: Quit wasting time and money – from What About Clients?

• Does Your Firm Suffer from OCD? – from Stephanie Thomas’s The Proactive Employer

• FACTS? We (the jury) Don't Need No Stinking Facts. (Or, do we?) – from Deliberations

• Can Costs of Employment Arbitration Be Unfair to Employer? – from Paul Kirgis at ADR Prof Blog

• Metadata Scrubbing: Are Lawyers Finally Getting the Message? – from Ride The Lightning

• ABA Reports That Pro Se Representation Is Increasing, To The Litigants’ Detriment – from Cleveland Law Library Weblog

Discrimination & Harassment

• Harassment Case Against Steven Seagal Dismissed – from Lowering the Bar

• Novartis Enters Settlement Agreement for Remaining Members of Gender Bias Suit – from HR Hero’s Human Resources News

• Discrimination from the Bottom Up – from Richard Bales at Workplace Prof Blog

• EEOC Vice-Chair: What's Particularly Important for Employers? – from HR Daily Advisor

• Western District of Virginia Refuses to Dismiss Sexual Harassment Suit – from Laconic Law Blog

• Fitness-for-duty exam does not support a “regarded as disabled” claim – from Employment Law Matters

• 1st Circuit: Sexual desire is not a necessary element of a hostile work environment claim – from Work Matters

Wage & Hour

• 9th Cir: Jury Decides Employment Status – from Alaska Employment Law

• Department of Labor Examines New Approach for Enforcing Federal Employment Laws – from Wyatt Employment Law Report

• If you were the judge: Employee’s performance review referred to FMLA-covered absences – from HR Cafe

• Hot Times in HR – from Jim Brennan at Compensation Cafe

Social Media & Technology

• Do you text and drive? TeleNav survey shows about 1/4 of you do – from Smartphones and Cell Phones

• Be Careful What You Tweet – from Mark Toth’s Manpower Employment Blawg

• Social Media Policy – from NJ Hess Associates Blog / Patterns of Work

LeBron James

• On Leadership: Gilbert's Letter to LeBron - Leader or Looney? – from Kris Dunn, The HR Capitalist

• LeBron James’ Employment Background Check: He Stole Our Hearts – from Nick Fishman at the employeescreenIQ Blog

• Dan Gilbert and LeBron: Dealing with a departing employee – from Sindy Warren at the Warren & Hays Employment Law Blog

• The King Has No Clothes, Lebron’s Lessons For Work – from Workplace Fairness

• LeBron James? He’s Just a Glimpse at Your Employee of the Future – from TLNT

• LeBron Is Not Taking Less Money: A Quick Tax Overview – from Wills & Wealth

• LeBron James Faces ‘Reverse Paternity Suit’ Filed by Alleged Father – from Inside Opinions: Legal Blogs

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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.

In litigation lockdown, silence in golden

When I was 17 years old I was in a car accident, the details of which are unimportant to this story. What is important, though, is that a week later, I saw the woman I hit in the library, but she didn't see me. She was telling the librarian all about the accident, including how she wasn't that badly injured, but that her attorney told her to keep treating so that they could ask for more money in her lawsuit.

When your company is sued, you need to instruct your employees to exercise extreme caution in who says what around whom. I refer to it as "litigation lockdown." You may not know which of your employees are friends with the plaintiff. And, as my story illustrates, you cannot always control who overhears what is said. Especially in the workplace, little is private. Walls are often paper-thin. You never know who might be listening to what is intended to be private conversation.

Suffice it to say the woman I hit got much less money than she otherwise might have because I was in the right place at the right time. Don't end up over-paying in case because of similar carelessness.

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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.

Compliance and training key to victory in overtime lawsuit

A New York federal court recently dismissed a wage and hour collective action that sought unpaid overtime for “off-the-clock” work. The plaintiffs in Keubel v. Black & Decker claimed their employer maintained a policy of refusing to pay employees for any hours worked over 40 in a week. The court concluded that Black & Decker did not have to compensate employees for time worked that it did not know about or could not reasonably have known about. In support of its conclusion, the court relied upon Black & Decker’s wage and hour compliance and training, including written wage and hour and work time reporting policies, an anti-retaliation policy, an anonymous hotline for reporting violations, and regular training of all employees at all levels on wage and hour compliance:

It is undisputed that there was a company wide written policy concerning accurately recording all hours worked on ones time sheets, including overtime. Indeed, Black & Decker maintains a Code of Ethics that requires all employees to maintain the integrity of company records, explains the company’s commitment to obeying all laws expressly, including all wage and hour laws, and requiring employees to report what they believe to be violations of the Code of Ethics. As part of the effort to reinforce the Code of Ethics with all employees, Black & Decker mailed a copy of a brochure entitled “Doing What’s Right” to all employees on April 10, 2006, which summarized the critical aspects of the Code of Ethics.

Black & Decker sent out a series of e-mails to all current employees, which focused on topics addressing the Code of Ethics. In fact, an e-mail sent to all employees in January 2007 regarding accurate business records provided that all employees were required to “ensure that business records (for example time cards, travel and expense reports, invoices, and purchase orders) are honest, complete and not misleading.” It directed employees to “watch out for falsifying records or documents” and to beware of “[a]ssisting anyone with or going along with the creation of inaccurate or misleading records.” Employees were told, “If you are asked or aware of efforts to alter, destroy, conceal, falsify or not create business records, report this to your supervisor immediately[.]” In addition, employees were given an e-mail address and phone number by which they could make anonymous reports of violations. Significantly, no complaint was ever made by plaintiff through this process, nor was any anonymous complaint made regarding plaintiff’s supervisors. Based on these undisputed facts, plaintiff cannot meet his burden of proving that Black & Decker had actual or constructive knowledge of the hours he worked off-the-clock.

I’ve said it before, and in light of this case I’ll say it again—policies, training, and other compliance initiatives are crucial in preventing and ultimately winning litigation. KJK offers a proprietary (and complementary) 200-point HR and employment practices audit, which includes wage and hour compliance. This examination of your practices and procedures is the first step in making your organization litigation resistant.

[Hat tip: ELT, Inc. Blog, c/o Fair Labor Standards Act 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.

Do you know? Eligibility for FMLA leave

FMLA leave continues to be one of the most confounding HR issues for employers. The first issue you often face is whether an employee seeking leave is eligible for the leave sought.

To be eligible for FMLA leave, an employee must meet two criteria:

1. The employee must have been employed for at least 12 months. These months, however, do not have to be consecutive and do not even have to immediately precede the request for FMLA leave. As long the employee has worked for the employer for a total of 12 months over any duration of time, this criteria is met.

2. The employee must have at least 1,250 hours of service during the previous 12-month period. “Hours of service” means hours worked. Thus, non-working time, paid or unpaid, such as vacations, holidays, furloughs, sick leave, other FMLA leave, and other time-off, do not count in the calculation of hours of service. This rule, however, has two key exceptions. First, an employee returning from fulfilling his or her National Guard or Reserve military obligation must be credited with the hours of service that would have been performed but for the period of military service in determining whether the employee worked the required 1,250 hours. Secondly, time that an employee would have worked but for an unlawful termination also counts towards the required 1,250 hours.

Because of these eligibility requirements, it is important to keep accurate records of work hours, even for exempt employees. If an employer does not keep an accurate record of hours worked, it will be presumed that the employee worked enough hours.

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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.

If you can’t trust your son…. Multi-million dollar jury verdict for boss’s son’s theft of trade secrets

According to the Youngstown Business Journal, a federal court jury awarded Allied Erecting & Dismantling $3.046 million for claims that its president’s son, Mark Ramun, misappropriated trade secrets while working for a competitor, Genesis Equipment & Manufacturing. The article describes the dispute:

At the center of the dispute is a product Allied … developed…. Between 1992 and 2001, court papers say, Mark Ramun had access to “highly confidential proprietary information and documentation” related to the Allied MT while employed at the company. Those trade secrets, Allied alleged, were given to Genesis after the company hired the younger Ramun in 2003. Allied argued in its case that Mark Ramun kept nearly 15,000 documents that contained “a substantial array of highly confidential and proprietary information.”

There is a good lesson to be learned from this story. When there is money to be made, even those who you trust the most are apt to let you down. I don’t know what the relationship between senior and junior Ramuns was like (although I’m pretty sure they won’t be sharing a Thanksgiving turkey anytime soon). I am confident, however, that dad never for a second thought his son would divert confidential information to a competitor. Even those who you trust the most should be locked down with agreements, and diligently pursued when they breach your trust.
[Hat tip: Trade Secrets Blog]

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

WIRTW #134

At the bottom of the page you’ll notice a new feature I’m trying out – a Wibiya toolbar. It adds new functionality to the blog, including a revamped search engine, a widget for recent posts, and new ways to share content via Twitter and Facebook. Leave a comment (or tweet me) and let me know what you think.

Here’s what I read this week:

Discrimination

• When talking about disabilities, put people first – from Stephen Meyer at the HR Cafe

• Sometimes, the equal opportunity jerk defense prevails – from Sindy Warren at the Warren & Hays Employment Law Blog

• Disgruntlement – from Charles Sullivan at the Workplace Prof Blog

• Employee’s Fetus was Creating a Negative Energy Field in the Work Place – from Philip Miles’s Lawffice Space

• How To Screw Up A Termination Case And Pay Big Money! – from Minnesota Labor & Employment Law Blog

• Fitness-for-Duty Exams: When Can They Be Used? – from Mindy Chapman’s Case in Point

• Age is Just a State of Mind: At Least I Think So Because Today Is My Birthday – from Michael Haberman’s HR Observations

Social Media

• Indiana Jurors Instructed Not to “Talk” About the Case on Social Networking Sites – from Molly DiBianca’s Going Paperless

• How to Increase the Likelihood Employees will Follow Your Social Media Policy – from Defending The Digital Workplace

• Facebook Posts As Evidence? – from Lawyerist

Wage & Hour

• The Importance of Clear, Accurate Notices – from FMLA Insights

• Who’s The Bimbo Here? Another Class Action Focusing On Independent Contractor – from Wage & Hour - Development & Highlights

Miscellaneous

• The Top 10 Worst Fictional Bosses – from Alanah Throop (Hat tip to Bob Sutton’s Work Matters)

• Supreme Court recap: Employment Law – from LawMemo Employment Law Blog

• On the Road Again: What State Cell-Phone Bans Mean for Employers – from Adria Martinelli at the Delaware Employment Law Blog

• The Importance of Follow Through: More Lessons from Wal-Mart – from Stephanie Thomas’s The Proactive Employer

• Would You Want to Know About a Triple Murder Charge on an Employment Background Check? – from Nick Fishman at employeescreenIQ Blog

• “We Will Not Threaten to Kill You” – The Problem with NLRB Enforcement – from Work in Progress

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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.

What LeBron James teaches us about employee retention

I'm about to make a startling confession -- I could care less if LeBron James signs with the Cavs, Knicks, Bulls, Heat, or becomes the first NBA player in space. It doesn't affect my life one iota (other than the latter outcomes exponentially increasing the availability of my firm's Cavs tickets, at which point I wouldn't want them anyway). Frankly, I'm disgusted by the way King James has handled himself over the past several weeks, waiting for every media outlet and NBA fan to genuflect before him hoping to catch any hint at his impending choice. Our country's southern coastline is an ecological disaster, and we treat the contract choice of someone who plays a game for a living as the most important story of the decade.

Tonights primetime announcement of his team-of-choice on ESPN takes the cake. It is shameless PR for a player that is in love with his own sense of self-importance. Think back 15 years. There was no bigger sports story than MJ's return from baseball to the Bulls.  Yet, he made his announcement with no press conferences, no media circuses, and certainly no hour-long ESPN specials -- just a simple two-word press release: "I'm back." And yes, I know that 2010 is a whole lot different than 1995 in terms of the immediacy of news and the cult of celebrity. But, class is class whether its 1995, 2010, or 2110. Some people have it, and some are proving that they don't.

The LeBron circus leads me to this thought. Yesterday, at the blog of the Harvard Business Review, Sharon Daniels posted Retaining a Workforce That Wants to Quit. Ms. Daniels shares these stats:

• In each of the past three months, more employees quit their jobs than were terminated.
• The cost of replacing an employee is estimated at up to 250% of annual salary.
• Approximately one in every four employees plan to leave their jobs within a year. 

She correctly concludes that the three biggest reasons employees leave jobs -- even in a down economy and tight job market -- are a lack of growth opportunities, dissatisfaction with compensation, and employees feeling their contributions aren't being recognized. As for employers:

Regrettably, too many managers unwittingly encourage employees to walk out because they regard them as replaceable cogs in a wheel. The key to retaining valued employees is to manage them person-to-person rather than with one-size-fits-all management. Every employee marches to a different drummer; successful managers don't make them parade in lockstep.

In other words, your retention efforts have to be personalized. One more thought -- your organization need to have a back-up plan in the event your LeBron leaves. The Cavs have none, and are facing years of obscurity and mediocrity if LeBron chooses Miami (as is now being reported).

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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.

2nd Circuit issues groundbreaking ruling on sales reps and overtime payments

I’ve written a lot in the past about FLSA exemptions, particularly the administrative exemption and the outside sales exemption.

Yesterday, the 2nd Circuit issued a landmark ruling reconciling these two exemptions in the context of pharmaceutical sales reps. In In re Novartis Wage & Hour Litigation [pdf], the court was faced with the claims of approximately 2,500 Novartis reps who claim they are owed back overtime. Novartis claims it did not have to pay overtime to this class of employees, either because they qualified as exempt outsides sales people or exempt administrative professionals. The court disagreed.

The 33-page opinion is a must-read for any business that employs salespeople and pays them as exempt. The highlights:

Outside sales exemption: The sales reps do not qualify for the outside sales exemption because they do not actually sell any products. Instead, in their brief sales calls on physicians, they merely promote their employer’s product. The physician cannot neither buy directly from the rep, not commit to making a purchase:

In sum, where the employee promotes a pharmaceutical product to a physician but can transfer to the physician nothing more than free samples and cannot lawfully transfer ownership of any quantity of the drug in exchange for anything of value, cannot lawfully take an order for its purchase, and cannot  lawfully even obtain from the physician a binding commitment to prescribe it, we conclude that … the employee has not in any sense … made a sale.

Administrative employee exemption: The sales reps do not qualify for the administrative employee exemption because their jobs lack the exercise of discretion and independent judgment. Specifically, the court pointed to the reps’ lack of any role in planning marketing strategies or formulating the core messages delivered to doctors, inability to deviate from the promotional core messages or to answer any questions for which they have not been scripted, and quotas for doctors’ visits, sales pitches, and promotional events.

Three things about this opinion stand out to me:

1. Novartis has taken an absolute beating this summer. As Dan Schwartz at Connecticut Employment Law Blog points out, it was only seven weeks ago that a jury tagged the pharmaceutical company for a quarter-billion dollars in a sex discrimination lawsuit brought by female sales reps. Now, pending a reversal by the full 2nd Circuit or the Supreme Court, it is going to be on the hook for an untold amount of back overtime to another group of sales reps.

2. If your business employs salespeople, this opinion has the potential to dramatically alter how you pay them. At a minimum, you should be retaining employment counsel to review—and potentially overhaul—the classifications of your employees.

3. The Department of Labor is proving itself to be a formidable ally of the worker on the issue of FLSA exemptions. In March, it issued its game-changing Administrator’s Interpretation in which it pronounced, for the first time, that mortgage loan officers are generally non-exempt positions. In this case (as reported by Bloomberg News), the DOL submitted a brief in supporting the sales rep’s position. Your business should be looking at employees’ FLSA classifications with the same critical eye as the DOL to avoid potential problems down the road.

[Hat tip: Howard Bashman’s How Appealing]

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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.

The dark side of discrimination litigation

The San Francisco Chronicle reports that a jury awarded a former applicant for a job a Lucasfilm $113,800 in damages on a pregnancy discrimination claim. The jury concluded that the media company withdrew its job offer to Julie Veronese after she disclosed her pregnancy.

This case proves two important points about discrimination litigation:

1. The smoking-gun piece of evidence in the case was an email Veronese's supervisor-to-be in which she expressed concern about Veronese's ability to do the job while pregnant. This case illustrates the dangers of email and proves the point that if you should not put in an email what you do not want shown to a jury or published in the newspaper.

2. Veronese's attorney is reported as saying that she will seek $1.2 million in attorney's fees from Lucasfilm. While the number is stagging, what is more staggering is that one can collect ten-fold in attorney's fees than what she recovered as damages in the actual litigation. Many claims carry risk for damages, and a six-figure verdict is nothing to sneeze at. The real risk in many discrimination lawsuits, however, is the attorney's fees that a successful plaintiff can recover. The risk of a fee award must play into the exposure calculus in strategizing the defense of any discrimination claim. Failing to take both the likelihood of a fee award and the potential amount of that award into account very early on in litigation could lead to an expensive surprise at the end of the case.

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