When two worlds collide ... hilarity ensues

Last night, the self-proclaimed world's greatest bosses met for the first time. Michael Scott, meet David Brent:

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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.

Union membership at lowest level in nearly 80 years

The Bureau of Labor Statistics has released its annual report of union membership, and the news isn’t good for organized labor. Unions lost 612,000 members in 2010, dropping the unionized share of the work force from 12.3% to 11.9%. Union membership in the private sector fell from 7.2% to 6.9%, its lowest proportional share since the 1930s. You can read BLS’s summary here, and the full report here.

Employers may read this news as positive. I have a different take. With efforts to bolster organized labor having failed in Congress, today’s pro-union National Labor Relations Board may use these statistics to bolster their efforts to beef up organized labor. I will be very curious to see what these numbers look like after two years of pro-union regulation by the NLRB.

[Hat tip: Labor Relations Today]

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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.

Why you never ask a woman if she’s pregnant

Australian broadcaster Todd Woodbridge thought that tennis star Kim Clijsters was pregnant. His problem, however, was that he did not keep it to himself. Instead, he texted his thoughts to another player. When Clijsters found out, she took the story public, outing Woodbridge’s lack of sensitivity during a post-match television interview.

It remains to be seen if Woodbridge keeps his Aussie TV gig. That Clijsters was so good natured about the crass message may help his cause. Don’t assume, however, that your female employees will be so forgiving.

I don’t know what will happen to Woodbridge’s job, but I can almost guarantee you will lose your discrimination case if a rejected job applicant has a text message asking if she appeared irritable and if her boobs looked bigger. Text messages, social media, and other technology make it much easier to share these types of thoughts. Because of these technologies, he said/she said cases no longer necessarily hinge on credibility debates. Instead, the employee may be holding that text or tweet as a dangerous trump card.

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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.

Join me Friday on the Proactive Employer Podcast

Join me Friday morning as I guest on the one-year anniversary installment of Stephanie Thomas’s Proactive Employer Podcast. Stephanie and I will be talking about ten issues of importance to every employer:

1. Documentation and document retention
2. Applications, background checks and new hires
3. Confidentiality
4. Technology
5. EEO: discrimination, harassment, and retaliation
6. Wage and hour issues
7. FMLA and benefits
8. Immigration
9. Health, safety, and security
10. Evaluation, discipline, and termination

I’ll provide some suggestions on best practices to identify potential problem areas. Stephanie and I culled these 10 issues from my proprietary 200-point audit of human resources and employment policies and practices. Please join us for a lively and informative discussion that should interest all businesses.

The podcast will be live on blogtalkradio at 8:30 am on Friday, January 28. Blogtalkradio will also archive it for later listening. The podcast will also be available for download on iTunes.

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

It’s déjà vu all over again—Supreme Court recognizes associational retaliation

In The Gay Science, Friedrich Nietzsche explained his theory of the eternal recurrence—that if the universe is infinitely big, time is eternally long, and everything that exists in that universe is made up of a finite number of elements, then over the course of eternity everything that happens will happen again. For the theory of associational retaliation under Title VII, eternity didn’t even last four years.

In Thompson v. North American Stainless, the 6th Circuit originally recognized the theory of associational retaliation – that Title VII prohibits an employer from retaliating by inflicting reprisals on a third party (such as a spouse, family member, or fiancé) closely associated with the employee who engaged in such protected activity but who engaged in no protected activity of his or her own.

Sometimes, it stinks to be right. In its unanimous opinion [pdf], the Court recognized that certain employees, within the “zone of interests” protected by Title VII, will have a valid claim for associational retaliation:

Title VII’s antiretaliation pro­vision prohibits any employer action that “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” … We think it obvious that a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiancé would be fired…. We … decline to identify a fixed class of relation­ ships for which third-party reprisals are unlawful. We expect that firing a close family member will almost al­ways meet the Burlington standard, and inflicting a milder reprisal on a mere acquaintance will almost never do so, but beyond that we are reluctant to generalize…. 

[W]e conclude that Thompson falls within the zone of interests protected by Title VII. Thompson was an employee of NAS, and the purpose of Title VII is to protect employees from their employers’ unlawful actions. Moreover, accepting the facts as alleged, Thompson is not an accidental victim of the retaliation—collateral damage, so to speak, of the employer’s unlawful act. To the contrary, injuring him was the employer’s intended means of harming Regalado. Hurting him was the unlawful act by which the employer punished her. In those circumstances, we think Thompson well within the zone of interests sought to be protected by Title VII.

What does all this mean?

1. This supposed pro-business Court continues to be decidedly anti-business when it comes to protecting employees from retaliation, and even the most conservative members of this Court are open to expanding civil rights when it satisfies a policy they consider important.
2. Employers are now subject to retaliation for taking an adverse action against anyone “closely related” to an employee who engaged in protect activity.
3. To claim associational retaliation, the aggrieved employee must prove that the employer intended to injure the associated employee by its action against the aggrieved employee.

For employers, there are no bright-line rules for associational retaliation. The real import of this decision is the same as when the 6th Circuit first recognized this new theory of liability nearly four years ago. As I said at that time:

If Title VII protects those "who are so closely related to or associated" with employees who engage in protected activity, it simply begs the question, how close is close enough? In Thompson, the relationship was a fiancée. It is safe to assume liability will also extend to action taken against spouses. What about boyfriends and girlfriends? How long do you have to date to be protected from retaliation? The same protection also will probably extend to parents and children. What about siblings? Grandparents? Cousins? 3rd cousins twice removed? In-laws? Friends? Carpoolers? The people you share your lunch table with? The person you sat next to in 3rd grade? How close is close enough for an employer to intend for its actions to punish the exercise of protected activity? Do employers now have to ask for family trees and class pictures as part of the orientation process? 

These questions, none of which the Thompson court answers, could hamstring employers from making any employment decisions for fear of doing something against someone who has some relationship to someone else who complained about something last October. The implications of this case have the potential to reach that level of silliness. The best course of action is still to make legitimate personnel decisions for bona fide business reasons and let the chips fall where they may.

An obituary for our dog

Employment law takes a break today because yesterday we put Zoey to sleep. She was born on January 26, 2005, the largest in a litter of seven. It never took long for her to convince anyone that met her that 79 of her 80 pounds was heart. She was a lover of all people and all things. Nothing in this world mattered more to her than the four people she shared her home with (except, maybe, for the occasional rabbit she chased in the backyard).

Zoey was our first child. She was our not-sure-if-we’re-going-to-have-kids-let’s-get-a-dog. I slept on the floor next to her crate for her first few nights in our home, until she became accustomed to being away from her litter. She never again doubted us because she knew she was home.

I beamed with pride when I taught her to swim as a puppy. I laughed when she would relentlessly lick the top of my bald head. I was awestruck when she placed her head on my wife’s lap during tear-inducing labor pains before the birth of our first child. I felt badly for her when she got bumped down the ladder with the birth of each of our children. I was grateful when she protected our kids as if they were own, and I loved her every time she checked on them when they cried or were ill.

I will miss her tail wagging whenever anyone would pet her. I will miss her jumping up and down when someone new came to the door. I will miss her sprinting into the kitchen and begging for an ice cube whenever she heard the freezer door opening. I will miss seeing her waiting by the front window in the study as I drove up to the house, and how she was always the first one to greet me when I came home from work every night. I will even miss her shedding, which often made our floor resemble an unkempt barbershop. I will miss her.

Last summer she tore her right rear ACL while playing. Post-surgery, I again slept nearby as she whimpered with pain. While the ACL healed, her leg never really did. She walked with limp, and aged dramatically, looking and acting much older than her nearly six years of life suggested.

December gave us yet another scare, as the anti-inflammatory medications she was taking for her leg ulcerated her intestine, causing a whole bunch of new problems. My wife nursed her child back to health.

Yet, we knew, deep down, that Zoey was living on borrowed time. The vet told us the odds – that more than half of dogs who tear an ACL will tear the other within a year. We hoped that Zoey would buck the odds, but I think we knew that she likely wouldn’t.

When she gimped into the house Saturday evening with what had been her good leg trembling high in the air, in too much pain to put any weight on it, and what had been her bad leg too weak to support her large frame, we knew it was time. Saturday night, she licked my head for the last time.

Zoey was not only a great dog; she was a beloved member of our family. I hope she finally catches that rabbit in heaven.

WIRTW #161 (the “To infinity, and beyond!” edition)

Each week, there’s a story or two that slips through the cracks that I just can’t get to. This week is no exception. Earlier this week, the U.S. Supreme Court upheld the constitutionality of NASA’s employment background check policies. For more information on this case, I recommend the following summaries and opinions of my fellow bloggers:

• Unanimous US Supreme Court: Constitutional Right to Informational Privacy Not Violated by NASA Background Check – from Workplace Prof Blog

• SCOTUS: NASA background check is constitutional – from Ross Runkel’s LawMemo Employment Law Blog

• Supreme Court: Background Investigations on Federal Contract Employees OK – from Human Resources News

• Supreme Court Upholds Constitutionality of Government Background Screens in NASA v. Nelson – from Employer Law Report

• Feds Can Require Background Checks on Contractors, High Court Holds – from Joe’s HR and Benefits Blog

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

Workplace Technology

• Employers Checking Employee E-mail: The Split Continues – from Daniel Schwartz’s Connecticut Employment Law Blog

• Using Your Employer’s E-mail: There’s Legal, and Then There’s Smart – from New Jersey Employment Law Blog

• “Belongs To The Company” Means Exactly That – from Labor Employment Law Blog

• Eleventh Circuit Ruling Strengthens Employers' Hand Against Employees who Abuse Access to Information Systems – from Workplace Privacy Counsel

• 2010 Online, by the Numbers – from the New York Times Bits Blog

• Employee Tip of the Week: Your Boss is Watching (Or Might Be, One Day) – from New York City Employment Lawyer

• Playboy on iPad renews debate over privacy, workplace rules – from Computerworld

• What Does the "Year of the Tablet" (or of the iPad) Mean for Employers? – from Workplace Privacy Counsel

Social Media

• Why Your Boss Should Be Able to Fire You Over Facebook – from the Evil HR Lady, c/o BNET

• Social Media Research + Employment Decisions: May Be a Recipe for Litigation – from Social Media Law Update

• Social-Media Guidelines Apply to Supervisors, Too – from Molly DiBianca at the Delaware Employment Law Blog

• NFL Teams and Executives Must Be Aware of the Legal Consequences of Their Social Media Usage – from Shear on Social Media Law

• Battling Information Overload Among Employees Using Employers’ Social Media Tools in the Workplace – from Digital Workplace Blog

Employee Relations & HR

• 4 ways employers can protect themselves when employees leave – from The Employer Handbook Blog

• “Golden Voice” Story is Worthy of HR Consideration – from Nick Fishman’s employeescreenIQ Blog

• When employees prepare to return from leaves of absence: what can you say? – from Sindy Warren at the Warren & Hays Employment Law Blog

• 2 GINA Employee Handbook Action Items – from Philip Miles’s Lawffice Space

• Complying with the New GINA Legislation – from CPEhr

• The Dirty Dozen Performance Appraisal Errors – from BusinessWeek

• The McDonald’s Fiasco: It Never Makes Sense to Follow Rules Over the Cliff – from TLNT

• New Filing Reminds Employers of Employee Protection for Jury Service – from Texas Employment Law Update

Discrimination

• HR Says: Is this Interview Question Legal? – from International Business Times Blogs

• ADA opinion, if followed, could impact the scope of accommodation requirements – from Work Matters

• Even the Best Employees Can Suffer Discrimination – from Tom Crane’s San Antonio Employment Law Blog

• Former Prostitute Can Raise Sexual Harassment Claim – from Atlanta Employment Lawyer Blog

• 7th Circuit Rules Oral "Right to Sue" from EEOC is Not Sufficient to Start 90-Day Period – from Wisconsin Employment & Labor Law Blog

Wage & Hour

• A Ray of Sanity in the FLSA Collective Action Morass: Half-pay in Misclassification Cases – from Michael Fox’s Jottings By An Employer’s Lawyer

• Half-Time Damages In FLSA Misclassification Cases – from The FLSA

• Boobs and Babes in the Workplace – from Michael Haberman’s Omega HR Solutions

Labor Relations

• Will NLRB Seek Shorter Union Election Campaigns? – from IndustryWeek

• NLRB General Counsel Directs Inclusion of New Default Language in Settlement Agreements – from Labor Relations Counsel

• Supervisor has a viable claim under the NLRA when terminated or disciplined for refusing to commit unfair labor practices – from Employment Law Matters

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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.

Ohio just became a friendlier state for age discrimination plaintiffs

In Gross v. FBL Financial Servs., the U.S. Supreme Court concluded that mixed-motives do not exist in federal age discrimination claims, and for a plaintiff to succeed on an disparate treatment claim under the ADEA, he or she must prove that age was the “but-for” (that is, the only) cause of the challenged adverse employment action.

An open question left in the wake of Gross was whether state courts such as Ohio would follow Gross under parallel state court age discrimination statutes. Thomas v. Columbia Sussex Corp. (Ohio Ct. App. 1/6/11) [pdf] provided our first Ohio answer. It concluded that Gross does not apply under Ohio’s age discrimination statute. While the opinion somewhat muddles its discussion of Gross, the court approved what amounted to a mixed-motive jury instruction given to the jury. Therefore, mixed-motive age claims are alive and well under Ohio age discrimination statute, and the effect of Gross is limited to cases brought under the federal ADEA.

For employers, this opinion is not quite as bad as it seems. Yes, it will likely result in more plaintiffs eschewing a federal venue and filing their age claims under Ohio law, and in Ohio courts with state court juries. Ohio’s age discrimination statute, however, has a short six-month statute of limitations, as compared to 300 days one has to file an age claim with the EEOC to perfect one’s right to file a lawsuit under the federal statute. Because employees have a easier burden of proof under Ohio law, they will have to elect the shortened filing period. Employees who miss the initial six months will have to go the federal route, with its tightened burden of proof under Gross.

For businesses, the advice I gave after Gross holds true regardless of the burden of proof. Employers should meticulously document employees’ performance problems and other disciplinary action. A contemporaneously well-documented personnel file makes it that much more difficult for a plaintiff to prove that age was the motivating reason behind the termination or other adverse action.

Lessons from Children’s Lit, part 3: Knuffle Bunny

Lately, my son and I have been reading Mo Willems’ Knuffle Bunny, a lot.

Knuffle Bunny tells the story of Trixie, who loses her stuffed bunny (and prized possession) during a trip to the laundromat with her Daddy. When she discovers her loss, she tries to tell her Daddy, but he does not understand her baby babble. When Mommy catches on, the family rushes back to the laundromat to find Knuffle Bunny. I don’t want to spoil the end for anyone, but suffice it to say that when we finish the book, my little guy looks up at me as says, “She’s so happy.”

What lessons can employers take away from this “cautionary tale”?

1. There are no hard and fast rules about how employees must complain about harassment or discrimination. Trixie, who had not yet learned to speak, did the best she could to communicate to her Daddy that Knuffle Bunny was missing. The fact that he did not understand her did not change his fatherly responsibility to help locate Knuffle Bunny. The same holds true for employers. In a perfect world, employees would lodge complaints in typed memos, dutifully turned into designated persons in the HR department. Our world, however, is far from perfect. Employees email, text, leave voice mails, scribble hand-written notes, make off-handed comments, and even say nothing at all. Regardless of how a manager or supervisor learns about harassment or discrimination, the rules are the same—investigate, remedy, and don’t retaliate.
   


2. Leave no stone unturned. When Trixie’s family first returned to the laundromat, they could not find Knuffle Bunny. It was not until Trixie’s Daddy redoubled his efforts that he found it. The same holds true for employers’ investigations. A half-assed investigation is no better than no investigation at all. If a document is missing, you better be able to convince a court that you took all reasonable efforts to locate it. If you conclude that an employee’s harassment complaint is unfounded, you better be sure you interviewed everyone identified as a potential witness. If you are going to discipline or terminate an employee, you better double check that you considered all documents and witnesses before reaching a conclusion. Courts are loath to second-guess employers’ business judgment, but will not hesitate if it appears an employer slacked in its investigatory responsibilities.

For legal compliance, don’t jump off the bridge

When I was a child, whenever I wanted to do something popular that my parents disapproved of, they would caution me, “If everyone else jumped off a bridge, would you jump too?” I hated when they said that. Yet, now that I am a parent, I find myself saying the same thing to my kids. Today, I am also going to say it to my readers.

Just because a particular employment practice is popular or widespread does not mean it’s legal. There are lots of practices in use at lots of companies that do not pass legal muster:

• Various common wage and hour exemptions.
• Treating employees as contractors.
• Refusing to pay employees for off-the-clock work.
• Failing to pay employees who work through their lunch breaks.
• Googling job applicants as the lone background screening tool.
• Lack of technology policies and social networking policies.
• Policies that prohibit discussions about wages and benefits.
• Requiring pre-offer medical exams of all job applicants..

This list could go on and on. The point is that popular employment practices aren’t necessarily legal employment practices. You should not rely on the company-next-door for your legal compliance. Instead, invest a few dollars in a comprehensive review by a qualified attorney. Heck, some of us will even get started for free.

[Hat tip: Wage and Hour 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.

MLK Day calls for reflection about how far race relations have come, and how far we have left to go

Today celebrates the life and message of one of our nation’s most important heroes, Martin Luther King, Jr. His remembrance suggests that we consider not only how far our race relations have come in the last half-century, but also how far we have left to go. 

To reflect upon how far we have come, consider MLK’s famous “I Have a Dream” speech, one of the greatest and most significant pieces of oration ever delivered:

To consider how far we have left to go, you need only review a few posts from my archives, each of which illustrates that bigotry still pervades our workplaces and our society:

• Sadly, racism is alive and well
• Know when to fish, know when to cut bait
• Of course racism is wrong, but at least it gives me job security
• A chocolate cupcake by any other name…
• Federal court takes on the word “nigger” in a reverse race discrimination 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.

WIRTW #160 (the bad economy = good EEOC numbers edition)

Earlier this week, the EEOC released its FY 2010 charge filing statistics, which, to no surprise, reveal that in a bad economy employees file more claims. I’m leaving any additional recap and analysis to my blogging brethren who have already covered this story:

• Charts of EEOC Charges 1997-2010 – from Philip Miles’s Lawffice Space

• Record Number of Charges Filed With EEOC – from Joe’s HR and Benefits Blog

• EEOC Statistics Reveal Jump in Discrimination Charges – from Delaware Employment Law Blog

• EEOC Reports Record Number of Charges in 2010 – from Wyatt Employment Law Report

• EEOC Reports Job Bias Charges Hit Record High in 2010 – from Alabama HR Law

• Private Sector Workplace Discrimination Charges Hit Record in 2010 – from Southwest Florida HR Law & Solutions

• Job Bias Claims Hit New Record In 2010 – from Workplace Diva

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

Discrimination

• When Your Manager Has Been Accused of Sexual Harassment – from Daniel Schwartz’s Connecticut Employment Law Blog

• GINA Final Regulations are Effective 1/10/2011: Are You Ready? – from Michael Haberman’s Omega HR Solutions

• GINA Compliance? – from World of Employment

• GINA sleepy so far, but don’t get caught unaware – from CCH’s Employment Law Daily

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

• Beginning The New Year With Breastfeeding – from Social Media Employment Law Blog

• Crying At Work, A Woman’s Burden – from Jenna Goudreau’s The Other Half

• The Top 5 Most Intriguing Decisions In EEOC Cases Of 2010 – from Workplace Class Action Litigation

• Interview Questions - Make them “Legal” – from Rob Radcliff’s Smooth Transitions

• First Circuit holds that Title VII does not protect employees from the “ordinary slings and arrows that suffuse the workplace every day.” – from Employment Law Matters

• Jury Awards $5.8 Million To White Supervisor In National Origin Discrimination Lawsuit – from Atlanta Employment Lawyer Blog

• Is Retaliation for Complaining About Sexual Orientation Discrimination a Violation of Title VII? – from Michael Fox’s Jottings By An Employer’s Lawyer

• ADA accommodations: Do jobs held by temps count as “vacant”? – from Stephen Meyer’s HR Cafe

Social Media & Workplace Technology

• How Facebook Can Make or Break Your Case: The Plaintiff’s Arsenal – from Eric Meyer’s The Employer Handbook Blog

• Taking a Photo with a Placenta Won’t Get You Kicked Out of Nursing School – from Kashmir Hill’s The Not-So Private Parts

• Social Media Law Predictions For 2011 – from Shear on Social Media Law

• Production of Litigation Hold Letters & Imaging Hard Drives – from Bow Tie Law’s Blog

• Computer Fraud & Abuse Act: Eleventh Circuit Finds Employer’s Policy Defines Limits of Employee's Authorized Access – from Trade Secrets & Non-Compete Blog

HR & Employee Relations

• What Can a Company Do With a Dangerous Employee? – from Suzanne Lucas at BNET

• The Arizona shootings and your workplace – from Sindy Warren at the Warren & Hays Employment Law Blog

• Brits to make it easier to hire/fire workers – from Walter Olson’s Overlawyered

• Britain to Relax Employment Laws in Effort to Increase Employment – from Workplace Prof Blog

• Will Your Company’s Non-Competition Agreement Be Enforceable When You Need It? – from Trade Secret / Noncompete Blog

Wage & Hour

• Workplace Flexibility and the Bottom Line – from Steven Greenhouse at the New York Times

• Reporting Time Pay: A Wage and Hour Winter Wonderland – from Wage & Hour Counsel

• “Heads-Up” That Employee “Might” Take FMLA Leave Insufficient to Invoke FMLA Protections – from The FMLA Blog

• The Supreme Court Identifies Medical Residents as Employees – from Maryland Employment Law Developments

Labor Relations

• State of the Unions – from James Surowiecki at The New Yorker

• Sixth Circuit Holds That Ohio Wrongful Termination Claim Pre-Empted By NLRA – from Employer Law Report

• NLRB Proposed Workplace Notice Likely to Spark Uptick in Union Activity – from EFCA & Labor Law Reform Blog

• Employer Found Liable for Damages for Accessing Former Employees’ Personal Emails – from Wisconsin Employment & Labor Law Blog

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

DOL’s “Right to Know,” or right to sue?

This April, the Department of Labor intends to publish a proposed rule updating the Fair Labor Standards Act’s recordkeeping regulations. The DOL refers to this program as “Right to Know.” The stated goals for these regulations include strengthening protections for workers by protecting their entitlement to earned wages, bringing greater transparency and openness to the workplace, and increasing wage and hour compliance. According to the DOL, the proposed rule will likely:

• Require the notification of workers’ status as employees or independent contractors.
• Require that any employers that seek to exclude workers from the FLSA’s coverage perform a classification analysis, disclose that analysis to the worker, and retain that analysis to give to DOL enforcement personnel on request.
• Require that employers provide a wage statement, including hours worked and a wage computation, each pay period to each employee.

The subtext of these regulations, however, is frightening. The DOL is pursuing an aggressive agenda of wage and hour compliance for low wage workers. While it has swelled its ranks with the hiring of 250 new investigators, it still lacks the budget and manpower to locate or remedy every wage and hour violation in every business. These “Right to Know” regulations will informally deputize every employee, transforming our nation’s workforce into a nation of DOL investigators. Do you still think you can afford to put off that wage and hour audit?

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

Employees aren’t the only ones who have to watch what they post: Social media as retaliation

If you do a search of my archives you’ll find a slew of posts about employees whose posts on social media sites came back to bite them—either in recruiting, terminations, or litigation. A story in yesterday’s Pittsburgh Tribune-Review illustrates that employers are also at risk for the reckless use of social media. The article discusses an EEOC complaint alleging that a manager used the company’s Facebook page to post threatening messages in retaliation for a prior harassment complaint.

It is becoming increasingly clear that communication is communication, whether spoken, in writing, in a email, in a text message, or posted on a social media website such as Facebook. Fairly consistently, courts are ignoring the vessel used to communicate the message. If a message is retaliatory, it will be treated the same, whether told to an employee or posted on a Facebook page.

Other than retaliation, what are some of the other legal risks should employers be aware of concerning social media?

• Harassment
• Defamation
• Disclosure of confidential or proprietary information
• Commentary on on-going litigation

How can employers guard against these risks? Proactive training. Businesses that fail to properly train all employees about the risks of the reckless use of social media are acting recklessly themselves.

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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.

Announcing KJK’s Next Employment Law Breakfast Briefing: Managing Employee Medical Issues Under the ADA

You are invited join KJK’s employment lawyers for our next Breakfast Briefing: Managing Employee Medical Issues Under the Amended Americans With Disabilities Act.

Perhaps no issue confounds and confuses employers more than employee medical issues. The 2009 amendments to the Americans With Disabilities Act have only served to complicate matters for businesses. Now, the ADA covers most employees with medical issues. As a result, it is incumbent upon employers to stay up to date on their obligations to accommodate this unique class of employees. Join KJK’s employment lawyers for a free breakfast to discuss the following issues and learn how to proactively avoid ADA claims from increasingly litigious workforces:

1. What qualifies as a “disability” under the current ADA?
2. What are employers’ obligations to reasonably accommodate disabled employees?
3. How does the ADA interact with the other key laws that concern employee medical issues: the FMLA and workers’ compensation laws?
4. What does it mean to “regard” an employee as disabled, and why is this subset of the ADA so dangerous?

Date: Tuesday, April 12, 2011

Time: 8:00-8:30 Continental Breakfast / 8:30-9:30 Presentation / 9:30-10:00 Q&As

Place: The Club at Key Center, 127 Public Square, Cleveland

Cost: Free (including parking)

If you are interested in attending this free seminar, or for more information, please contact Andrea Hill, (216) 736-7234 or ach@kjk.com, by April 7, 2011.

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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.

Rash action could lead to false conclusions in dealing with employee problems

The mall was packed Saturday afternoon. The fact that we had a few inches of snow on the ground did not help the parking situation. I drove around for more than 10 minutes looking for a close parking space so the cold walk wouldn’t impact my two-year-old son’s asthma. I finally eyed a great spot, only to have it stolen by a woman who ignored my turn signal while she zoomed up the aisle the wrong way. I’d normally curse loudly from the safety of my car and move on, but on that day I took a stand. I parked behind her car, waited for her to get out, rolled down my window, and confronted her over her lack of parking lot etiquette. Surprisingly, she apologized, asked me to pull forward so she could back out, and surrendered the spot. We exchanged courtesies and went about our ways. When I came out from the mall, I found a note tucked under my wiper blade. It read, “ASSHOLE.” I can only assume that the note was left by someone in the line of traffic behind me who, not having witnessed the entire transaction, assumed that I had stolen their space.

There is a good lesson in this story for employers. Don’t act rashly when dealing with employee complaints or problems. Employers should only take action after a full investigation into all of the facts and circumstances. When an employee complains about something, you only are getting half of the story (at best). If you act based on that half, you are jumping to a conclusion, the correctness of which might as well be a coin flip. You cannot have any confidence in the ultimate conclusion until you conduct a complete and unbiased investigation, which includes interviewing all witnesses, reviewing all documents, and considering all versions of events.

There was an asshole in the parking lot on Saturday, but it wasn’t me. It was the person who left the note without knowing how I ended up taking that spot. Don’t make the same mistake and shortchange your employees by jumping to rash decisions and failing in your duty to fully and completely investigate all employee complaints.

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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.

Unstable employees, direct threats, and the ADA

I opened my email this morning to find the following question from fellow blogger The Evil HR Lady:

As you probably know, I’m an avid reader, even though I’ve never lived in Ohio, although I have been to two weddings there, so that must count for something.

I've been reading about Jared Lee Loughner--the Arizona shooter and came across the e-mails written by a class member who thought Loughner was dangerous here: http://voices.washingtonpost.com/44/2011/01/jared-loughners-behavior-recor.html?hpid=topnews

My question for you, the employment lawyer, is given ADA protections, if I notice an employee becoming increasingly unstable, what can I do about it?

I’d love to read your thoughts on this.

Instead of responding directly, I thought I’d share my thoughts with everyone.

The ADA contains a specific exception for employees who pose a “direct threat.” The statute defines “direct threat” as “a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation.” The ADA’s regulations require that the determination that an individual poses a direct threat must be “based on an individualized assessment of the individual’s present ability to safely perform the essential functions of the job.” Employers must base this assessment on either “a reasonable medical judgment that relies on the most current medical knowledge” or “on the best available objective evidence.” In making this determination, employers should rely on the following four factors:

1. The duration of the risk;
2. The nature and severity of the potential harm;
3. The likelihood that the potential harm will occur; and
4. The imminence of the potential harm.

Palmer v. Circuit Court of Cook County (7th Cir. 1997) succinctly explains the Hobson’s choice employers face when deciding whether to retain a potentially violent employee. Since I can’t say it any better, I’ll just quote from the opinion:

The [ADA] does not require an employer to retain a potentially violent employee. Such a requirement would place the employer on a razor’s edge—in jeopardy of violating the Act if it fired such an employee, yet in jeopardy of being deemed negligent if it retained him and he hurt someone. The Act protects only “qualified” employees, that is, employees qualified to do the job for which they were hired; and threatening other employees disqualifies one….

It is true that an employer has a statutory duty to make a “reasonable accommodation” to an employee’s disability, that is, an adjustment in working conditions to enable the employee to overcome his disability, if the employer can do this without “undue hardship.” … But we cannot believe that this duty runs in favor of employees who commit or threaten to commit violent acts…. The retention of such an employee would cause justifiable anxiety to coworkers and supervisors. It would be unreasonable to demand of the employer either that it force its employees to put up with this or that it station guards to prevent the mentally disturbed employee from getting out of hand.

To sum up and answer the question posed, employers faced with a legitimate and potentially dangerous employee need not wait for the powder keg to explode. Instead, employers can treat the employee as a “direct threat” and separate the individual from employment.

A few additional practical points to consider:

1. Prior to the termination, obtain written statements from co-workers, supervisors, and managers documenting all threatening behavior.

2. The severity of threat is proportional to the duration of the risk. In other words, the more real the risk the less amount of time you have to allow it in your workplace.

3. Typically, I’m opposed to security escorts of terminated employees. The termination of an employee who poses a direct threat for violence is the exception.

4. Consider carrying out the termination as late in the work day, and work week, as possible. This timing will create and artificial cooling-off period and help limit the risk that the employee returns to do harm.

5. Put the local police department on notice. Also consider a private security detail for a period of time until you are reasonably certain the employee is not going to return to cause harm.

Finally, my thought and prayers are with everyone in Tucson as they mourn, fight for their lives, cope with what happened, and start the healing process.

WIRTW #159 (the welcome to the party edition)

While it gets harder each week to keep up with the goings-on in the blogosphere, I’m always happy to welcome another to the table. This week, Philadelphia attorney Eric Meyer launched The Employer Handbook, which he promises will provide “clear and concise summaries of the employment-law landscape in PA, NJ and DE.” Eric, welcome, I look forward to reading and sharing links on future Fridays.

Here’s the rest of what I read this week (and last week):

2011 Predictions & Thoughts

• Learning From History: Employment Litigation Trends in 2010 and Preparing for 2011 – from Stephanie Thomas’s The Proactive Employer

• This Year in Employment Law, 2011 Edition - The Year of ... – from Daniel Schwartz’s Connecticut Employment Law Blog

• 84% of employees plan to look for a new position in 2011 – from Philip Miles’s Lawffice Space

• A 2011 Human Resources Forecast – from Michael Haberman’s Omega HR Solutions

• HR resolutions for the New Year part one, part deux – from Sindy Warren at the Warren & Hays Employment Law Blog

• Top Five Non-Compete and Trade Secret Issues to Watch for in 2011 – from Trade Secrets & Non-Compete Blog

• What's Ahead in Discrimination Litigation for 2011? – from Iowa Employment Law Blog

• Policies, Practices and More: An FMLA “To Do” List for 2011 – from FMLA Insights

• 2011: Implementing the NO IDIOT RULE – from Fistful of Talent

HR & Employee Relations

• Cleveland Cavaliers Give Homeless Man a Second Chance – from employeescreenIQ Blog

• Employment Background Checks: What They’re Really Looking For – from the Evil HR Lady, Suzanne Lucas

• Is Creditworthiness a Protected Characteristic? Yes, says EEOC – from Molly DiBianca’s Delaware Employment Law Blog

• Applicant Filed for Bankruptcy: Can You Refuse to Hire? – from Mindy Chapman’s Case In Point

• 10 Things Your Boss Won’t Tell You – from Smartmoney

• What It Takes to Be a Great Employer – from Harvard Business Review

• Another reason managers and executives should avoid gossip – from Work Matters

• How Executive Candidates Can Deal With a Lie on Their Resume – from The HR Capitalist, Kris Dunn

Social Media & Technology

• Eleventh Circuit Holds That It is a Federal Crime For an Employee To Use His Employer’s Computer For “Non Business Reasons” After Receiving Clear Instruction From Employer Not to Do So – from How Appealing

• Perils of social media and the law : Don't check your common sense at the door – from Real Lawyers Have Blogs

• Facebook most searched term, visited site of 2010 in U.S. – from Boy Genius Report

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

• Discovery of Social Networking Sites – from Electronic Discovery Law

Discrimination

• Calling a Female Colleague “Sweet Baby” Sounds Like Sexual Harassment at ESPN – from Minnesota Labor & Employment Law Blog

• 7th Circuit Rules Medical Evidence Not Necessary in Disability Discrimination Claim – from Wisconsin Employment & Labor Law Blog

• 7th Circuit: Medical Testimony Not Needed to Establish Substantial Limitation in a Major Life Activity Under the ADA – from HR Lawyer’s Blog

Wage & Hour

• Recording Overtime Over Defendant-Employer’s Objections Not Protected Activity Under 29 U.S.C. § 215 – from Overtime Law Blog

• Fifth Circuit Holds Insurance Adjuster Is Exempt Administrative Employee – from Wage and Hour Law Update

• Fifth Circuit Holds that FLSA Action Is Improper Forum for Employer to Seek Set-Off Against Wage and Overtime Claims – from Texas Employment Law Update

• Nature Of DOL’s “Right To Know” Remains Largely Unknown from Wage and Hour Laws Blog

• Denial of Class Certification By Court Is Based On Need For Individual Assessment: The Key To The Defendant’s Success – from Wage & Hour - Development & Highlights

Trade Secrets & Employee Competition

• Difference In Degree of Competition Between Wedding Photographers Results In Denial of Injunction – from Legal Developments In Non-Competition Agreements

• Employers - Ask potential candidates if they signed a non-compete! – from Rob Radcliff’s Smooth Transitions

• TRO Entered Where Owner Of Trade Secrets Made “Substantial” Efforts To Maintain Confidentiality – from Trading Secrets

• DOJ Pursues Antitrust Claims Against Companies That Agree With Competitors Not to Recruit One Another's Employees – from Trade Secrets and Noncompete 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.

Federal court takes on the word “n***er” in a reverse race discrimination case

The n-word has been discussed a lot in the media this week, with the announced sanitization of Huckleberry Finn. (Are Roots and To Kill a Mockingbird next? But I digress.) In Burlington v. News Corp. (12/28/10), a Philadelphia federal judge has ordered that a jury must decide whether it is acceptable for a black employee, but not a white employee, to use that word in the workplace. The opinion also contains a lengthy narrative (excerpted below) discussing the larger implications of the differential use of the word between white America and black America.

This case involves the firing of a white television news anchor over his non-pejorative, context-appropriate, use of the n-word during a newsroom meeting. Thomas Burlington, who is white, claims race discrimination because the station did not discipline, let alone fire, three black employees who used the same word in similar meetings in similar contexts. The court agreed that Burlington’s different treatment justifies a jury trial on the issue:

Plaintiff’s use of the word elicited a severely negative reaction, brought the meeting to a close before he could explain himself, and was followed by his immediate suspension, while Jervay’s use of the word elicited only Defendants’ defense of his actions. Plaintiff is white. Jervay is African American. Management’s inability to explain why Jervay was allowed to use the word while Plaintiff was not permits the inference that their races influenced the decision, and that a similarly situated African American employee was treated more favorably than Plaintiff under similar circumstances.

The court also took on society’s conventional use of the controversial word:

Justice Holmes observed that “[a] word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used.” This is certainly so with this particular word. Merriam-Webster notes in the usage section of its definition of the word that “[i]ts use by and among blacks is not always intended or taken as offensive, but … it is otherwise a word expressive of racial hatred and bigotry.” … Professor Kennedy, an African American, made the observation that

many people, white and black alike, disapprove of a white person saying “nigger” under virtually any circumstance. “When we call each other ‘nigger’ it means no harm,” [rapper] Ice Cube remarks. “But if a white person uses it, it’s something different, it's a racist word.” Professor Michael Eric Dyson likewise asserts that whites must know and stay in their racial place when it comes to saying “nigger.” He writes that “most white folk attracted to black culture know better than to cross a line drawn in the sand of racial history. Nigger has never been cool when spit from white lips.” …

When viewed in its historical context, one can see how people in general, and African Americans in particular, might react differently when a white person uses the word than if an African American uses it.

Nevertheless, we are unable to conclude that this is a justifiable reason for permitting the Station to draw race-based distinctions between employees. It is no answer to say that we are interpreting Title VII in accord with prevailing social norms. Title VII was enacted to counter social norms that supported widespread discrimination against African Americans…. To conclude that the Station may act in accordance with the social norm that it is permissible for African Americans to use the word but not whites would require a determination that this is a “good” race-based social norm that justifies a departure from the text of Title VII.

The n-word is one of the English language’s most volatile words. Few others spark as much debate or as much rancor. We should all be able to agree that it has no place in the workplace. Yet, as this case illustrates, Title VII does not allow for double standards. If you intend to punish its use by white employees, you cannot condone its use by black employees.

I swore I wasn’t going to write about Brett Favre; then he got sued

Earlier this week, two former employees of the New York Jets sued their former employer and Brett Favre for sexual harassment. The message therapists allege that Favre made unwanted sexual advances during his tenure with the Jets in 2008. The lawsuit comes on the heels on the NFL’s fine against Favre for not cooperating with its investigation of similar allegations made by former Jets television host Jenn Sterger. Because others have covered the issues of the dangers of text messaging in harassment prevention and litigation (Philip Miles’s Lawffice Space, for one), I have a different take on this story.

The timing of the lawsuit—on the heals of the NFL’s closure of the Sterger investigation and its $50,000 fine of Favre—is more than suspicious. In their complaint, the plaintiffs try to explain the nearly 2½ year gap between the alleged harassment and the lawsuit:

   30. The plaintiffs have refrained from filing suit in the misguided hope that the NFL would take some meaningful action against defendant Favre for his improper behavior with Ms. Scavo, Ms. Sterger and others.

   31. Unfortunately, instead of taking any meaningful action, the NFL, after an alleged extensive investigation, which according to the media used former FBI agents and other extensive resources, provided no meaningful report, made no findings, waited until the regular football season was basically over and Favre was retiring from football and then reached the inexplicable and rather shocking conclusion that Favre did not violate any league policies regarding conduct in the workplace but rather merely failed to cooperate.

   32. The NFL imposed what is a relatively meaningless fine of $50,000 after probably spending a hundred times that amount on its alleged investigation and public relations attempt to derail any inquiry which would determine what occurred and to institute procedures to prevent the type of behavior Favre was accused of in the future.

   33. Since the NFL took no action, the plaintiffs had no choice but to commence their own legal action to be permitted to work in their chosen profession without being harassed, to recover the damages they had suffered and hopefully, maybe someday, to deter players in the NFL from acting inappropriately with other women who are required to come into contact with football players within the scope of their work and to encourage other women who are harassed by professional athletes in the workplace to come forward without fear of retribution.

I have no idea whether Favre propositioned the plaintiffs for a three-way encounter, just like I have no idea whether the pictures of Favre’s maleness that have surfaced online are genuine. The truth lies somewhere in between the allegations and the text messages. But, it certainly doesn’t help the plaintiffs’ cause that, according to Good Morning America, they refused to cooperate with an earlier NFL investigation concerning “media reports that Favre had made passes at two massage therapists who worked for the New York Jets.” It also doesn’t help their cause that their lawsuit looks like a money grab, piggy backing off the high publicity Jenn Sterger investigation.

I am not arguing that a gap of years between harassment and a lawsuit means that the harassment did not happen. I am, however, questioning the motives of the individuals bringing it to light via a lawsuit 2½ years later. Ultimately it will be up to a jury to determine the extent to which the timing undermines the plaintiffs’ credibility. It would be a shame if that timing ends up clouding the truth.

(Photo by Lisa Yarost, available on Flickr)

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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.