Coming soon to your bookshelf: HR and Social Media

It’s no coincidence that Facebook’s founder was Time’s 2010 Person of the Year. 2011 has become the breakout year for social media, as it continues increase in importance everyday. Social media not only permeates every aspect of our daily lives, but also every aspect of today’s HR.

I am pleased to announce that I will be authoring HR and Social Media: Practical and Legal Guidance, to be published by Thompson Publishing this summer. I believe it is the first such book of its kind. It will be a comprehensive resource covering the following issues in this cutting-edge area of employment law:

1. Introduction: Social Media Horror Stories
2. What is Social Media?
3. Drafting the Social Media Policy (including Harassment, Discrimination, and Retaliation)
4. Using Social Media in Hiring and Recruiting
5. Employee Privacy and Defamation
6. Confidentiality, Non-Competition Agreements, and Trade Secrets
7. Discovery of Social Media in Litigation
8. Social Media and Labor Law

I am not alone on this task. I have recruited an amazing group of my blogging colleagues to contribute chapters (in alphabetical order):

• Seth Borden (Labor Relations Today; @SHBorden): writing about social media and labor law
• Molly DiBianca (Delaware Employment Law Blog; Going Paperless; @MollyDiBi): writing about privacy issues
• Eric Meyer (The Employer Handbook Blog; @Eric_B_Meyer): writing about discovery and litigation
• Philip Miles (Lawffice Space; @PhilipMiles): writing about the nuts and bolts of social media
• Rob Radcliff (Smooth Transitions; @robradcliff): writing about confidentiality, non-competition agreements, and trade Secrets
• Daniel Schwartz (Connecticut Employment Law Blog; @danielschwartz): writing about hiring, recruiting, and employee engagement

I’ll be writing about social media horror stories and how to draft, implement, and enforce an effective and workable social media policy, including incorporating your social media program into your harassment and discrimination policies.

Continue to watch this space in the coming months for updates, including publication, availability, and how to add this tool to your HR library.

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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.

Has the ADA swallowed the FMLA for employee medical leaves?

It’s likely that by now you know that the recently amended ADA is expansive enough to cover most medical conditions. If most medical conditions are covered as disabilities, then most employees with medical conditions will likely, at some point during their tenure, need a reasonable accommodation. One accommodation that the EEOC considers presumptively reasonable is an unpaid leave of absence, even for employers too small to be covered by the FMLA.

Yesterday morning, KJK’s Labor & Employment lawyers (me included) held a spirited Breakfast Briefing discussing the recent ADA amendments. One of the topics covered was the impact of the ADA on employers’ obligations under the FMLA. If the ADA now covers most employees’ medical issues, and the ADA requires an unpaid leave of absence, hasn’t the ADA swallowed the FMLA, at least as employee medical leaves are concerned?

In light of this intersection between the ADA and the FMLA, employers should beware the following mistakes:

1. Those un-covered by the FMLA should not assume that they never have to provide unpaid leaves to employee.
2. Employers covered by the FMLA should not assume that ineligible employees are never eligible for unpaid leaves.
3. Employers should not assume that the leave of an FMLA-eligible employee is capped at 12 weeks.

Instead non-FMLA employee medical leaves of absence should be determined between the employer and the employee through the use of the ADA’s interactive process. Otherwise, you are putting yourself in the crosshairs of an ADA claim.

For the benefit of those who could not attend yesterday’s Breakfast Briefing, the slides are available below.

Handling Employee Medical Issues Under the ADAAA (KJK Breakfast Briefing: April 12, 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.

Does GINA cover sexual orientation discrimination?

Michael Haberman has a very interesting post at his HR Observations blog discussing whether the Genetic Information Nondiscrimination Act covers addictions potentially grounded in genetics, such as caffeine or nicotine addiction.

Michael’s post sparked the following thought. There are few questions that provoke as much debate as what makes a person gay or straight. Just as many people will tell you that sexual orientation is genetic, as will tell you it’s environmental, as will tell you it’s a combination of the two. If you accept for the sake of argument that sexual orientation has a genetic component, then if an employer fires an employee because of his or her sexual orientation, then hasn’t the employer acted “because of genetic information with respect to the employee?” And, if that’s the case, has GINA made the Employment Non-Discrimination Act moot before it has the chance to become law?

When the first sexual-orientation-as-genetic-discrimination lawsuit is filed, it will be a very interesting (and controversial) legal issue for a judge to decide.

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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.

FMLA coverage vs. eligibility: Employer notice and recordkeeping requirements

Last week, we discussed the difference between employer coverage and employee eligibility in the calculus of determining when you must provide FMLA leave to an employee. Today, we’ll examine the two other key areas in which this distinction matters: notice and recordkeeping.

Notice

Every employer covered by the FMLA is required to post a notice explaining the FMLA’s provisions. The notice must be posted prominently where it can be easily seen by employees and applicants for employment, and must be large enough to be legible and easily read. A copy of the poster suggested by the Department of Labor is available (as a PDF) from the DOL’s website.

Covered employers (those with 50 or more employees on the payroll during 20 or more calendar workweeks in either the current or the preceding calendar year) must post this general notice even if no employees are eligible for FMLA leave (no employee was employed for at least 12 non-consecutive months, worked 1,250 hours during the 12-month period preceding the start of the requested leave; and works at a location where the employer employs 50 or more employees within a 75-mile radius).

If, however, an FMLA-covered employer has at least one FMLA-eligible employees, it must also provide this same general notice to each employee by including the notice in employee handbooks or other written guidance to employees concerning employee benefits or leave rights, if such written materials exist, or by distributing a copy of the general notice to each new employee upon hiring. In either case, distribution may be accomplished electronically.

Recordkeeping

The FMLA requires covered employers to maintain records that disclose the following information on all employees:

• Basic payroll and identifying employee data, including name, address, and occupation.
• Rate or basis of pay and terms of compensation.
• Daily and weekly hours worked per pay period.
• Additions to or deductions from wages.
• And total compensation paid.

Covered employers who have eligible employees must additionally maintain records that disclose the following:

• Dates FMLA leave is taken by FMLA eligible employees. Time records and leave request forms are sufficient as long as the leave in those records is designated as FMLA leave.
• If FMLA leave is taken by eligible employees in increments of less than one full day, the hours of the leave.
• Copies FMLA-leave requests made by employees (if in writing), and copies of all written FMLA designations and other notices given to employees. Copies may be maintained in employee personnel files.
• Any documents (including written and electronic records) describing employee benefits or employer policies and practices regarding the taking of paid and unpaid leaves.
• Premium payments of employee benefits.
• Records of any dispute between the employer and an eligible employee regarding designation of leave as FMLA leave, including any written statement from the employer or employee of the reasons for the designation and for the disagreement.

An employer is not required to keep a record of actual hours worked for any FMLA-eligible employee who is either not covered by the FLSA or are exempt from the FLSA. For these employees, however, FMLA eligibility will be presumed for any employee who has been employed for at least 12 months. Additionally, for employees who take FMLA leave intermittently or on a reduced leave schedule, the employer and employee must agree on the employee’s normal schedule or average hours worked each week and reduce their agreement to a written record that that employer preserves.

Employers must maintain records and documents relating to certifications, recertifications or medical histories of employees or employees’ family members, created for purposes of FMLA, as confidential medical records in separate files/records from the usual personnel files, and in compliance with ADA confidentiality requirements.

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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 #172 (the juxtaposition edition)

These two stories came through my feed reader this week, and I thought that together they tell an interesting story:

Why Is It So Hard to Get a Low Paying Job? – from Suzanne Lucas, the Evil HR Lady

and

McDonald’s will hold hiring day April 19 to fill 50,000 jobs – from USAToday

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

Discrimination

• Poor, Pregnant, and Fired: Caregiver Discrimination Against Low-Wage Workers – from Workplace Fairness
• Say “cheese” – from Michael Maslanka’s Work Matters
• Can the EEOC legally recruit claimants over the radio? – from Eric Meyer’s The Employer Handbook Blog
• Soft Porn in the Workplace can be Sexual Harassment – from Maryland Employment Law Developments
• Damning Gay Co-Workers to Hell – from Philip Miles’s Lawffice Space
• Real Men Don’t Harass Other Men — And If They Do, the Employer Pays the Damages – from Joe’s HR and Benefits Blog
• EEOC’s “Shoot-First, Aim Later” Tactics Result In $751,942 Sanction – from Workplace Class Action Litigation
• Pennsylvania Federal Court Holds There are No Mixed-Motive Retaliation Claims Under Title VII – from Wisconsin Employment & Labor Law Blog
• Supreme Court Issues Victory for Employees in Anti-retaliation Claims – from The L•E•Jer
• Supreme Court to consider scope of ministerial exemption – from Walter Olson’s Overlawyered
• Can an Employer in the Employment Application Shorten the Statute of Limitations for Anti-Discrimination Claims? – from Fitzpatrick on Employment Law
• Summary of the EEOC’s Final Regulations for the ADAAA – What Companies Should Know (Part One) – from Employment & the Law
• New ADAAA regs: the untold story!!! – from Employment and Labor Insider
• What the Final Regulations on Implementing the ADAAA Mean For Employers – from Stephanie Thomas’s The Proactive Employer Blog

Social Media

• Are Managers Gun-Shy About Disciplining Reckless Online Behavior? – from TLNT
• The Era of Corp Social Media Discrimination – from Blogging 4 Jobs
• Can Employers in an FLSA Overtime Case Issue Subpoenas Concerning an Employee’s Social Media, Banking, and Texting Activities? – from Labor & Employment Law Perspectives
• Social Media in the Workplace - The Social Media Policy – from LE Blog
• Taking A Chance With Workplace Gambling – from Social Media Employment Law Blog
• How to Avoid a Social Media Lawsuit – from INC.
• Social Media and Good Manners – from Social Media Today
• Tackling the informal nature of social media – from Raising the HR Bar
• MySpace evidence was inadmissible hearsay – from Internet Cases

Employee Relations & HR

• The Joy of a National Championship: Employment Law Lessons From the UConn Huskies – from Daniel Schwartz’s Connecticut Employment Law Blog
• I Secretly Taped My Boss And Now I Want to Sue – from Screw You Guys, I'm Going Home
• Adding to the Employer's Arsenal - Garden Leave – from Rob Radcliff’s Smooth Transitions
• Top 10 Employment Background Check Issues – from employeescreenIQ Blog
• Should Preventing Work Place Violence Yield to an Employee’s Right to Bear Arms? – from Michigan Employment Law Advisor
• Three best practices for terminating insubordinates – from HR Cafe
• Hiring in the Recovery: Time for Some Honest Answers – from Michael Haberman’s Omega HR Solutions
• Why Employees Don’t Complain – from YourHRGuy.com
• Legalities? Here's How References Work in the Real World.... – from The HR Capitalist, Kris Dunn

Wage & Hour

• DOL “Updates” Mangle Longstanding FLSA Principles – from Wage and Hour Laws Blog
• DOL’s FLSA Rulemaking Limits Fluctuating Workweek, Tip Credit – from The Wage and Hour Litigation Blog
• New IRS Guidance for Health Care Reform: More News You Can Use – from Marc Alifanz at World of Work
• Are Managers Who Perform Non-Managerial Duties Entitled to Overtime Pay? – from Virginia Employment Law Journal
• Play Ball! An FMLA Lineup That Keeps You in the Pennant Race – from FMLA Insights
• Sick Leave Laws: Coming to a Town Near You! – from Labor Relations Institute
• FindLaw Legal Bloggers Sue for Overtime Pay – from ABA Journal Daily News

Labor Relations

• What to expect in Tom Brady vs. NFL injunction hearing – from Michael McCann at SI.com
• Governor Kasich Signs Senate Bill 5 - Referendum Battle Expected – from Employer Law Report
• Ohio Unions to Mandate More Money From Members to Fund SB5 Campaign Fight? – from LaborUnionReport.com
• Handbook Rules Alone May Overturn Decertification Election: NLRB – from Labor Relations Update

SpongeBob

• Career lessons from SpongeBob – from CareerDiva Eve Tahmincioglu

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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.

When does 50 not equal 50?

Most people think of “50” as the magic number for the FMLA. “Oh, we have 50 employees, so we now have to comply with the FMLA,” is a popular refrain among HR departments. It’s not that simple.

The FMLA has two different rules that must be met before you have to offer FMLA leave to an employee—coverage and eligibility. Coverage applies to the employer and eligibility applies to the employee. They both have the magic number 50 as a key component, but are very different in application.

Coverage. The FMLA covers any private employer that has 50 or more employees on the payroll during 20 or more calendar workweeks (not necessarily consecutive workweeks) in either the current or the preceding calendar year. Who counts as an employee for coverage purposes?

• Any employee whose name appears on the payroll will be considered employed each working day of the calendar week, and must be counted whether or not any compensation is received for the week.
• Employees on paid or unpaid leave, including FMLA leave, leaves of absence, disciplinary suspension, etc., are counted as long as the employer has a reasonable expectation that the employee will later return to active employment.
• If there is no employer/employee relationship (as when an employee is laid off, whether temporarily or permanently) that individual is not counted.
• Part-time employees are considered to be employed each working day of the calendar week, as long as they are maintained on the payroll.
• An employee who does not begin to work for an employer until after the first working day of a calendar week, or who terminates employment before the last working day of a calendar week, is not considered employed on each working day of that calendar week.

Once a private employer meets the 50 employees/20 workweeks threshold, that employer remains covered until it reaches a future point where it no longer has employed 50 employees for 20 (nonconsecutive) workweeks in the current and preceding calendar year. Thus an employer who met this threshold in 2010, drops below it later that year, and never crosses it again during 2011, would remain covered until December 31, 2011.

Eligibility. Just because the FMLA covers a particular employer, does not mean that the FMLA requires that employer to provide FMLA leave to any or its employees. An employee must still meet the FMLA’s eligibility requirements. To be eligible for FMLA leave, an employee must work for a covered employer, and:

1. Was employed by the employer for at least 12 non-consecutive months;
2. Worked 1,250 hours during the 12-month period preceding the start of the requested leave; and
3. Works at a location where the employer employs 50 or more employees within a 75-mile radius.

There you have it. At least as the FMLA is concerned, 50 does not necessarily equal 50. If you a business that has 50 or more employees who are fragmented across smaller locations, each more than 75 miles from the others, then you may fall into the weird vortex of being covered by the Act, but never having any employees who are eligible for leave.

Next week, we’ll look at what this distinction means on a practical level for your business, and also explore whether in light of the recent ADA Amendments it even matters.

How far can a Cat’s Paw reach?

Last month—in Staub v. Proctor Hosp.—the Supreme Court held that employers are liable for the discriminatory animus of managers and supervisors uninvolved with the adverse action decision making, unless the employer’s decision is entirely independent of the discriminatory input of the manager or supervisor. At the time, I argued that this broad holding would make it very difficult for employers to win summary judgment in these “cat’s paw” cases. Blount v. Ohio Bell Telephone Co.—decided a mere nine days after Staub—illustrates my point.

In Blount, two former Ohio Bell employees claimed that their employer discharged them in retaliation for taking protected leave under the Family Medical Leave Act. They argued that their managers punished FMLA users more severely than non-users who engaged in the same alleged workplace misconduct. Ohio Bell, however, argued that those managers lacked the discretion to fire the plaintiffs, and that the decision to terminate was made higher up the supervisory chain. The Court, however, concluded that the plaintiffs presented enough evidence to defeat the employer’s motion for summary judgment:

Moreover, even if the decision to punish and terminate resided higher in the supervisory chain, as Defendants argue, the animus of the Center Sales Managers can be inferred upwards where it had the effect of coloring the various adverse employment actions in this suit. See Staub v. Proctor Hospital (holding that discriminatory animus can be inferred upwards where the employee who makes the ultimate decision to punish does so in reliance upon assessments or reports prepared by supervisors who possess such animus).

The takeaway? If employers will be liable for the animus of managers and supervisors in all but the most unconnected of decisions, then businesses should get started training those managers and supervisors on their EEO responsibilities. If courts will hold you responsible for their actions, don’t you want some peace of mind that you did everything you could to guide those actions?

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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 does Chicken Little teach us about social media policies?

Last week, I had the pleasure of presenting a three-hour seminar on social media and employment law at the Labor & Employment Advances Practices (LEAP) Seminar. The one issue that garnered the most discussion from a room packed with HR professionals, business owners, and in-house counsel was the NLRB’s recent foray into the regulation of social media policies. Almost to a fault, a room of informed and knowledgeable businesspeople entered the session with the notion that the NLRB had banned companies from implementing social media policies that restrict or limit employees’ speech about their employers. I did what I could to dispel that notion. Until the Supreme Court tells me otherwise, I will not be convinced that a business cannot fire an employee who trashes its reputation, or the reputations of its management personnel, online.

My back-and-forth with the conference attendees got me thinking (and tweeting with fellow blogger Daniel Schwartz) about the law of unintended consequences. Because of how the NLRB press-released this settlement, and how the media reported on it, public perception is that social media policies cannot restrict any employee speech. For example, last week a post at Above the Law quoted a Seton Hall law professor from a CBS News interview: “Souza’s case ‘has expanded the free speech rights of American workers…. If they are communicating about the workplace, and they’re talking about their supervisors, then it’s a protected activity.’” This quote accurately summarizes the public (mis)conception about the Souza case.

If the NLRB has succeeded in scaring employers, then hasn’t the NLRB won this point? Even if rational minds conclude that employees will never be allowed to defame or disparage their places of employment or the people who work there—even in the name of protected, concerted activity—hasn’t the very threat of an NLRB charge chilled employers from implementing social media policies that regulate this type of speech?

We’ll never know if the NLRB intended this chilling effect, but the NLRB’s publicity machine has done enough for corporate America to believe that the social media sky is falling, legitimately or not.

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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.

Don’t give lip service to your harassment policy

It’s one thing to have a harassment policy. In fact, you’d be hard-pressed in 2011 to find many businesses that don’t. It’s entirely another thing, however, to have corporate culture that take the enforcement of that policy seriously. EEOC v. Dave’s Supermarkets (N.D. Ohio 3/1/11), illustrates the dangers that lurk for employers that choose to give their harassment policies lip service.

In Dave’s Supermarkets, female employees complained that the store ignored their complaints when the meat department manager (no jokes, please) sexually harassed them. The court not only denied the employer’s summary judgment motion as to (most) of the employees’ harassment claims, but also permitted their punitive damage claims to proceed to a jury trial. In refusing to dismiss the punitive damages claims, the court relied heavily on the fact that while the employer maintained a detailed anti-harassment policy, it did not follow through on its own procedures when it received the plaintiffs’ complaints.

A comprehensive anti-harassment policy involves three components:

1. The anti-harassment policy.
2. Appropriate training of all employees about that policy.
3. A consistent corporate culture that take the policy and the company’s anti-harassment stance seriously.

Having a policy and enforcing it are two different animals. A policy is only as good as the people who execute it. Training and the right corporate culture are necessary to ensure that your anti-harassment policy works as best as it should and as often as it is needed. Otherwise, you are left in the awkward (and expensive) position of having to explain to a jury why your actions didn’t match your policy.

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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 #171 (the actual retail price without going over edition)

Congratulations to Kristen ten Brink (@onthe10brink on Twitter), who submitted the winning bid to Medical Costs Price Is Right:

The actual retail price of a 19-day at the Cleveland Clinic, including all procedures, labs, doctors, etc., is $106,885.10, which is at least half of what I expected. Kristen, either email or DM me your contact information and I’ll send out your exciting prize package. And, thank you to everyone who participated.

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

Dukes v. Wal-Mart

• A Skeptical U.S. Supreme Court Vigorously Questions Certification of a Mammoth Sex-Discrimination Class Action Lawsuit – from Employer Law Report
• Class-Action Lawsuits: Not The Answer for Workplace Gender Discrimination – from Harvard Business Review
• The Strong Pull of a “Day in Court”; Lessons Learned from Wal-Mart v. Dukes – from Daniel Schwartz’s Connecticut Employment Law Blog
• Supreme Court Hears Oral Arguments in Dukes v. WalMart Class Action Case – from HR Lawyer’s Blog
• SCOTUS Hears Largest Employment Law Class Action Ever – from Philip Miles’s Lawffice Space
• Fatal inconsistency in Wal-Mart Stores v. Dukes? – from LawMemo Employment Law Blog
• Oral Argument Held In Wal-Mart v. Dukes – from Laconic Law Blog
• The High Court’s Dukes v. Wal-Mart Hearing: Here is What it Might Mean – from TLNT
• Analysis Of The Supreme Court Argument In Dukes – from Workplace Class Action Litigation
• “Justices Take Up Key Issue in Wal-Mart Bias Suit” – from How Appealing
• Argument recap: A fatal flaw detected? – from SCOTUSblog
• Wal-Mart Class Action Goes to US Supreme Court – from San Antonio Employment Law Blog
• Dukes Proving To Be a Hazard to Wal-Mart – from Abovethelaw.com
• Duke v. Wal-Mart at Forbes Woman: Implicit Gender Bias and Social Science Evidence – from Settle It Now Negotiation Blog
• Reflections on the Supreme Court Argument in Dukes v. Wal-Mart – from TLNT
• Wal-Mart, The Missing Link, and Class Certification – from Stephanie Thomas’s The Proactive Employer Blog

Discrimination

• Booze, wild beaver, and a pregnant bartender. What! – from Eric Meyer’s The Employer Handbook Blog
• Former Employee Fired for Wearing Shorts – from San Antonio Employment Law Blog
• The Lilly Ledbetter Chickens Come Home To Roost – from Discriminations
• Is the ‘Mommy Track’ Still Taboo? – from The Juggle (WSJ)
• The USERRA does not provide a claim for hostile work environment – from Employment Law Matters
• 5 Ways Employers Make Plaintiffs’ Lawyers Very, Very Happy – from Employment and Labor Insider
• “Grace Period for ADA Modifications Proposed in Congress” – from Walter Olson’s Overlawyered
• Employment Nondiscrimination Act Back in Play – from Southwest Florida HR Law & Solutions
• I Reported Harassment and Now HR Wants to Meet With Me. What Do I Do? – from Screw You Guys, I’m Going Home

Wage & Hour

• Some Things Don't Have to Be In Writing: Supreme Court Protects Employees Against Retaliation After Making Verbal Complaints of Wage and Hour Violations – from Washington Workplace Law
• FLSA Scenarios: How Well Do You Know the Law? – from Michael Haberman’s Omega HR Solutions
• FMLA Atop the Top Ten Things that Trouble Human Resources - The Tricky Part of FMLA Leave Made Simple – from Employment Law 101

Social Media & Workplace Technology

• Look Before You Tweet: Employer May Be Liable For Impersonating Employee On Facebook, Twitter – from Hunton Employment & Labor Law Perspectives™
• E-Mail, Twitter, and Unsurprising Changes – from YourHRGuy
• Court Rules That Instant Message Conversation Modified the Terms of a Written Contract – from Technology & Marketing Law Blog
• McAfee Report: Hackers Are Targeting Corporate Trade Secrets Now – from Trade Secrets Blog

Labor Relations 

• UPDATE: House Committee Votes to Amend Senate Bill 5 – from Vorys on Labor
• Ohio Set To Enact Anti-Union Bill – from Workplace Prof Blog
• Ohio’s John Kasich Signs Law Limiting Government Union Power – from LaborUnionReport
• NLRB Holds Employee’s Secret Recording of Meeting is Protected Activity – from Wisconsin Employment & Labor Law Blog
• Appeals Court Gives Hospital Go-Ahead to Ban Smoking Without Union’s Consent – from Joe’s HR and Benefits Blog
• Growth and evolution in the law on protected concerted activity – from Work 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.

The punishment fits the crime – appropriate corrective action in harassment investigations

An employer has an absolute obligation to investigate a complaint of harassment, and, where founded, take appropriate corrective action to stop the harassment from continuing. Next week, we’ll look at the implications of when an employer fails at the former. Today, though, we’ll look at a case that helps define scope of the latter.

In Wilson v. Moulison North Corp. (1st Cir. 3/21/11), the plaintiff alleged that his employer failed to take appropriate corrective action in response to his complaint that coworkers created a workplace permeated by heinous racially discriminatory taunts. The plaintiff argued that the employer’s verbal reprimand and warning that future harassment would result in termination was too mild a sanction, and that the company should have immediately terminated them instead.

The court refused to armchair-quarterback the employer’s business judgment:

In most situations—and this case is no exception—the imposition of employee discipline is not a rote exercise, and an employer must be accorded some flexibility in selecting sanctions for particular instances of employee misconduct.... The short of it is that, given the totality of the circumstances, the punishment seems to have fit the crime....

We appreciate the sincerity of the plaintiff's outrage, but the discipline imposed need not be such as will satisfy the complainant.... The plaintiff’s argument that the sanction must have been inadequate because it was ineffective to stop the harassment is nothing more than a post hoc rationalization.... Barring exceptional circumstances (not present here), a reasoned application of progressive discipline will ordinarily constitute an appropriate response to most instances of employee misconduct.

The key takeaway here is the progressiveness of progressive discipline. When might a similar warning not suffice, and a court require more severe corrective action?

• If the perpetrators are repeat offenders.
• If discrimination is a long-standing problem for the employer.
• If the employer has a history of inconsistent discipline.

Absent these “exceptional circumstances,” do not always jump to the conclusion that a harassment investigation must end in termination. Instead, make the punishment fit the crime.

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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.

Today is the final Day for Medical Costs Price is Right

Today is the last day to enter my little Medical Costs Price Is Right Contest (official rules and pictures of the fabulous prize package here). Here are the bids so far:

• $10,000
• $62,000
• $64,250
• $92,750
• $117,684.34
• $121,000
• $140,000
• $192,000
• $234,000
• $249,999
• $265,000
• $275,000
• $386,000
• $389,750.19

Remember, the closest to the actual, retail, non-insurance adjusted price of my son’s 19-day stay at the Cleveland Clinic wins. Those of you waiting until the last minute to underbid someone else now have your chance. The contest closes at 11:59 p.m. tonight, so enter now (but not often—one entry per person). I’ll announce the winner tomorrow.

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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.

Reading the tea leaves: The Dukes v. Wal-Mart oral argument

Today, the Supreme Court heard oral argument in Dukes v. Wal-Mart (transcript available here). Dukes will determine the propriety the certification of the largest sex-discrimination class action ever—a nationwide class of 1.5 million employees. I've previously covered the background of this case. If you have any doubts about the potential significance of Dukes, consider that 66 uninvolved businesses and lobbying groups filed 28 different briefs with the Court advocating for one side or the other. I’m not sure of the record for these filings, but Dukes has to be close.

According to Bloomberg Businessweek, “The suit, citing what are now dated figures from 2001, contends that women are grossly underrepresented among managers, holding just 14 percent of store manager positions compared with more than 80 percent of lower-ranking supervisory jobs that are paid by the hour.” According to Wal-Mart, however, the certified class “includes too many women with too many different positions in its 3,400 stores across the country. [I]ts policies prohibit discrimination and that most management decisions are made at the store and regional levels, not at its Bentonville, Ark., headquarters.”

In pre-gaming today’s oral argument, the Los Angeles Times not only framed the issues but also the importance of this case:

The court’s ruling could be the most far-reaching decision on job bias in more than a decade, according to experts on both sides. A win for [the plaintiffs] could open the door for the broader use of statistics to prove job discrimination—and not just on behalf of women, but also for minorities or persons with disabilities.

However, a win for Wal-Mart could deal a death blow to nationwide job-bias suits by ruling that employees who work in different stores and hold different jobs do not have enough in common to be a class.

Reading the tea leaves, I predict a resounding Wal-Mart victory at the Supreme Court. It is no surprise that given the political makeup of the Court, Justice Kennedy is the swing vote in close cases. As Justice Kennedy goes, so goes the majority. Thus, the following exchange between Justice Kennedy and the plaintiff’s lawyer signals that employees’ string of victories in employment cases may be coming to an end:

   Q: It’s not clear to me: What is the unlawful policy that Wal-Mart has adopted, under your theory of the case?

   A: Justice Kennedy, our theory is that Wal-Mart provided to its managers unchecked discretion in the way that this Court’s Watson decision addressed that was used to pay women less than men who were doing the same work in the same – the same facilities at the same time, even though – though those women had more seniority and higher performance, and provided fewer opportunities for promotion than women because of sex.

   Q: It’s – it’s hard for me to see that the – your complaint faces in two directions. Number one, you said this is a culture where Arkansas knows, the headquarters knows, everything that’s going on. Then in the next breath, you say, well, now these supervisors have too much discretion. It seems to me there’s an inconsistency there, and I’m just not sure what the unlawful policy is.

Suffice it to say that if the key vote on the Court does not fully understand the plainitffs’ argument, Wal-Mart is feeling pretty good about its chances right now.

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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 House considering comp time bill (HB 61)

One of the biggest wage and hour mistakes a company can make is assuming that it is legal to pay comp time in lieu of overtime for any hours employees work in excess of 40 in a work week. Make no mistake, with the exception of state and local governments, it is illegal to pay comp time as a replacement for overtime wages.

Ohio House Bill 61, currently under consideration, is trying to change this rule for Ohio’s small businesses. HB 61 would allow workers to bank up to 240 hours of comp time per year. At the end of a year, employers would have to pay out overtime wages for any unused comp time. Covered workers would have the right to chose between comp time and overtime pay. Employers would be prohibited from requiring workers to elect comp time, in addition to threatening, intimidating, or firing workers who choose overtime wages.

Here’s the catch: this bill only applies to those small businesses covered by Ohio’s Fair Wage Standards Act but not covered by the Federal Fair Labor Standards Act—those that have gross annual gross sales between $150,000 and $499,999.99. Nevertheless, according to PolitiFact Ohio, this bill has the potential to reach at least 10,000 Ohio small businesses.

HB 61 is a significant move in the right direction to making Ohio a more business-friendly environment. By allowing small businesses the ability to offer comp time to employees, Ohio’s small businesses will be able to provide workplace flexibility that currently does not exist and that employees covet. This benefit will help Ohio attract and maintain the small businesses we need as the backbone of our economic recovery.

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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 5 most interesting things about the ADAAA Regulations

Last Friday, the EEOC published its long-awaited (and hotly debated) regulations implementing the Americans with Disabilities Act Amendments Act (ADAAA) [pdf]. The blawgosphere has lit up with extensive summaries. Instead of doing the same, I thought I’d share with my readers what strikes me as the five most interesting things I’ve found in these regulations.

     1. Broad Coverage. In case there is any doubt in anyone’s mind, the purpose of the ADAAA is to make it easier for employees seeking the ADA’s protection to establish a disability within its meaning. In other words, employers, the EEOC, and courts are supposed to interpret the definition of disability “broadly.” As a result, ADA cases will no longer focus whether an employee qualifies as disabled, but instead on the merits of the challenged employment decision. Notwithstanding the breadth of these amendments, groups such as the U.S. Chamber of Commerce and SHRM (registration required) are applauding the EEOC for the pro-business changes incorporated into the regulations.

    2. Individualized Assessments for Medical Conditions. The regulations abolish any notion that certain medical conditions will always qualify as disabilities. Instead, the regulations call for an “individualized assessment” of whether a certain condition “substantially limits a major life activity.” For many conditions, this assessment should be simple and straightforward. For example, deafness, blindness, intellectual disability, partially or completely missing limbs, mobility impairments requiring use of a wheelchair, autism, cancer, cerebral palsy, diabetes, epilepsy, HIV infection, multiple sclerosis, muscular dystrophy, major depressive disorder, bipolar disorder, post-traumatic stress disorder, obsessive-compulsive disorder, and schizophrenia will usually, but not automatically, qualify as disabilities.

     3. Handling of Episodic Conditions and Ameliorative Effects. The current effects of a disability are not the only factors that one considers in determining whether a medical condition is substantially limiting. Impairments that are episodic or in remission—including cancer, epilepsy, hypertension, asthma, diabetes, major depressive disorder, bipolar disorder, and schizophrenia—qualify as disabilities if substantially limiting when active. Additionally, mitigating measures—those that eliminate or reduce the symptoms or impact of an impairment—do not factor into the “substantially limiting” calculus. These mitigating measures include medication, medical equipment and devices, prosthetic limbs, low vision devices (except ordinary eyeglasses or contact lenses), hearing aids, mobility devices, oxygen therapy equipment, use of assistive technology, reasonable accommodations, learned behavioral or adaptive neurological modifications, psychotherapy, behavioral therapy, and physical therapy.

     4. Most Adverse Action Claims Going Forward Will Be “Regarded As” Claims. The ADAAA does not change the statute’s three-pronged approach to defining disability:

• a physical or mental impairment that substantially limits one or more major life activities (an “actual disability”)
• a record of a physical or mental impairment that substantially limited a major life activity (a “record of disability”)
• when a covered entity takes an action prohibited by the ADA because of an actual or perceived impairment that is not both transitory and minor (“regarded as” disabled).

What has changed, however, is the agency’s approach to how these definitions factor into claims brought by employees. There is no rule that an employee must use a particular prong when challenging an employer’s actions. However, because an employer is not required to provide a reasonable accommodation for a “regarded as” disability, an employee claiming a denial of a reasonable accommodation must bring the claim as an “actual disability” claim or a “record of” claim. While an employee can bring an adverse action claim under any of the three definition, the EEOC believes that they should be brought under the “regarded as” prong because of its ease of coverage.

     5. Coverage for Temporary or Short-Lived Impairments. The ADAAA substantially expanded the circumstances in which employers may be liable under the “regarded as” prong by removing the requirement that an employee prove that the perceived impairment substantially limits a major life activity. The only exception to the “regarded as” prong is for “transitory and minor” impairments. “Transitory and minor” is an affirmative defense that employers must prove. It is only a defense, however, to claims brought under the “regarded as” prong. It is not a defense to actual disabilities or a record of disability.

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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 #170 (the “Come On Down” edition)

There is still one week left to enter Medical Costs Price Is Right. The bids so far:

• $10,000
• $62,000
• $64,250
• $92,750
• $117,684.34
• $192,000

The official rules, along with a picture of the exiting prize package are here. Remember, there are three ways to enter:

1. Posting a comment to the original blog post.
2. Send a reply with your guess to @jonhyman on Twitter, using the hashtag #MedicalCostsPriceIsRight.
3. Post your guess on the wall of the Ohio Employer’s Law Blog Facebook Page, also using the hashtag #MedicalCostsPriceIsRight.

Happy bidding!

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

Discrimination

• Sexual Harassment 2.0: Damn I’d Like To Tag That... – from Fistful of Talent
• “Grace Period for ADA Modifications Proposed in Congress” – from Overlawyered
• 19-Days Off for Hajj as a Religious Accommodation – from Philip Miles’s Lawffice Space
• Job Applicant Not Hired by Private Employer Because of Bankruptcy Has No Discrimination Claim Under Bankruptcy Code – from Labor & Employment Law Perspectives
• “Showdown on Wal-Mart sex-discrimination case: Supreme Court ruling could open the door for broader use of statistics to prove job bias” – from Howard Bashman’s How Appealing
• Non-Decision-Maker Bias & Discrimination Liability Under “Cat’s Paw” Theory in Supreme Court’s Staub v. Proctor Hospital Decision. Part II — Commentary – from George's Employment Blawg
• 4th Circuit Rules for Employee in Same-Sex Harassment Case – from Workplace Prof Blog
• Mrs. Palsgraf and the cat’s-paw doctrine – from Work Matters
• People With Criminal Records “Need Not Apply” – from fyiscreening
• Supremes Pretty Consistently Oppose Retaliation – from Screw You Guys, I’m Going Home
• American Idol Contestant Claims in Bias Suit He Was Told to ‘Gay It Up’ – from ABA Journal Daily News

Employee Relations & HR

• The Monty Python Guide to Being a Better Boss – from BNET
• Steps for Effective Discipline – from Michael Haberman’s Omega HR Solutions
• Fired in Real Time: The Perp Walk – from Workplace Fairness
• Preventing Workplace Violence: What’s Your Business’ Plan? – from Joe’s HR and Benefits Blog
• Ricky Gervais on Not Having a Real Job – from Harvard Business Review
• Why Workplace Bullying Should Be Legal – from the Evil HR Lady, Suzanne Lucas
• Los Angeles Times piece on workplace bullying and the Healthy Workplace Bill – from David Yamada’s Minding the Workplace
• Who Needs Background Checks with Applicants Like These? from employeescreenIQ Blog

Social Media & Workplace Technology

• FACT: Employers can sue employees for social networking – from The Employer Handbook Blog
• Social Media Spotlight: Feds’ Latest Attack on Computer-Use Policies – from Labor Relations Institute
• What is a photocopier? – from Walter Olson’s Overlawyered

Wage & Hour

• 7th Circuit Provides Further Guidance Regarding an Employee’s Obligation to Provide Notice of FMLA Leave – from Wisconsin Employment & Labor Law Blog
• Supreme Court Holds that a Verbal Complaint Constitutes “Filing” Under the FLSA in a 6-2 Majority (Kagan, J., not participating) – from Fitzpatrick on Employment Law
• Where FMLA Bonding Leave is at Issue, Unmarried Parents Have More Generous Leave Rights – from FMLA Insights
• Family Dollar FLSA Litigation Update – from Fair Labor Standards Act Law
• Labor Pains – from Corporate Counsel
• Do higher wages make you work harder? Do lower wages make you slack off? – from Slate Magazine

Labor Relations

• Tell Us Something We Didn’t Know from LaborPains.org
• NLRB Hints At Broader Agenda In Witness Statement Case – from Labor Relations Update
• NLRB On Concerted Activity – from Workplace Prof Blog
• NLRB Provides Representation Case Data, Allows Submission of Supplemental Briefs in Specialty Healthcare – from Seth Borden at 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.

BREAKING NEWS: EEOC releases its final regulations interpreting the ADA Amendments Act

Today, the EEOC made available to the public its final regulations interpreting the Americans with Disabilities Amendments Act (ADAAA). The regulations will become official upon their formal publication in tomorrow’s Federal Register. The EEOC is providing a website that collects links to the final regulations, a Q & A on the regulations, a Q & A for small businesses, and a fact sheet discussing the regulations.

I am going to take the weekend to read the regulations, and will share my thoughts and analysis on Monday. In the meantime, Daniel Schwartz, at his Connecticut Employment Law Blog, reports that SHRM has advised its members “that they were pleased with several changes from the draft version.” There is at least some hope that the final regulations will not be as onerous on businesses as originally feared.

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

How soon is too soon to fire a complaining employee?

More than three year ago, the 6th Circuit concluded that where an adverse employment action occurs very close in time after an employer learns of a protected activity, the temporal proximity between events is significant enough to constitute evidence of a causal connection for the purposes of satisfying a prima facie case of retaliation. Yesterday, in Hill v. Air Tran Airways [pdf], the same court used a three-day gap between a complaint of discrimination and a termination to reverse a trial court’s grant of summary judgment in a retaliation case:

Although prior to the incident on April 10, 2007, Hill had not formally complained about Thornton in over five months, it is undisputed that Hill complained about Thornton only a few days before the termination. Hill complained to Hughes about Thornton on April 10, 2007, the day of the last incident with Thornton and a few days before Hill’s termination on April 13. Hill also complained about Thornton in an email to Hughes on April 10, the same day Hughes recommended Hill’s termination. Although these complaints were informal, they are relevant to an assessment of temporal proximity.

No employee is bulletproof, and employers should not shy away from firing a deserving employee merely because the employee complained about discrimination. Indeed, some employees, seeing the writing on the wall, complain in an effort to save their jobs or create a lawsuit. However, if you are going to terminate an employee close in time to the exercise of protected activity (and three days is pretty close), you should be prepared for the retaliation lawsuit that is likely to follow.

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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.

File this one away: Supreme Court continues its trend of protecting complaining employees from retaliation

Kasten v. Saint-Gobain Performance Plastics asks a very simple question: does the word “file” in the Fair Labor Standards Act’s anti-retaliation provision only refer to written complaints, or does it also cover oral complaints? Yesterday, by a 6-2 majority, the Supreme Court concluded the latter, resolving a split among the federal appellate courts and, yet again, opening employers to more expansive liability for retaliation.

The Court spent nearly half of its analysis discussing the merits of various definitions of the word “file,” only to conclude that “the text, taken alone, cannot provide a conclusive answer to our interpretive question. The phrase ‘filed any complaint’ might, or might not, encompass oral complaints.” It instead reached its conclusion that the FLSA’s “antiretaliation provision cover[s] oral, as well as written, ‘complaint[s]’” based on policy concerns:

Why would Congress want to limit the enforcement scheme’s effectiveness by inhibiting use of the Act’s com­ plaint procedure by those who would find it difficult to reduce their complaints to writing, particularly illiterate, less educated, or overworked workers? …

To limit the scope of the antiretaliation provision to the filing of written complaints would also take needed flexi­bility from those charged with the Act’s enforcement. It could prevent Government agencies from using hotlines, interviews, and other oral methods of receiving com­ plaints. And insofar as the antiretaliation provision cov­ers complaints made to employers…, it would discourage the use of desirable informal workplace grievance procedures to secure compliance with the Act….

The Court concluded that the method of communication of a complaint is irrelevant to whether it qualifies as protected activity. A complaint is protected, whether oral or written, if it is “sufficiently clear and detailed for a reasonable employer to understand it, in light of both content and context, as an assertion of rights protected by the statute and a call for their protection.”

This case merely brings the FLSA’s anti-retaliation provision in line with most, if not all, other statutes. Employers simply need to be aware that they take must all complaints seriously, whether communicated verbally or in writing.

The takeaway that is significant for employers, however, is just how difficult oral complaints are to handle. Oral complaints often place employers in the difficult position of having to prove a negative—that is, that the employee did not complain. To combat this problem, employers should consider establishing a protocol that all complaints must be documented, whether by the employee making the complaint or the individual receiving it. Provided that this protocol is consistently and uniformly followed, an employer will at least have the benefit of an inference that an oral complaint was not made if no written record exists.

As always, I’m happy to share the thoughts of my fellow blawgers:

• BREAKING: SCOTUS Holds that Oral Complaints Receive Retaliation Protection Under FLSA – from Philip Miles’s Lawffice Space
• Oral Complaints under FLSA are Shielded from Retaliation, Supreme Court Rules; Impact in Connecticut? – from Daniel Schwartz’s Connecticut Employment Law Blog
• When Your Employees Verbally Complain, You Better Listen! – from Stephanie Thomas’s The Proactive Employer Blog
• File this Supreme Court decision under “R” for RETALIATION – from Eric Meyer’s The Employer Handbook Blog
• Employees are protected from retaliation for making verbal complaint under the Wage and Hour Laws – from Business, Employment and Real Estate Law in Ohio
• Kasten v. Saint-Gobain Performance Plastics Corp., U.S., No. 09-834, 3/22/11 – from LaborRelated (which includes a great cartoon illustrating the case)
• Kasten v. Saint-Gobain - Supreme Court Rules in Favor of Employees in FLSA Complaint Case – from HR Lawyer’s Blog
• SCOTUS: Oral complaints can qualify as “filed” for FLSA purposes – from Work Matters
• Employers Cannot Fire Workers Who File Oral or Written FLSA Complaints, U.S. Supreme Court Holds – from Joe’s HR and Benefits Blog
• Supreme Court Rules that Oral Complaint Can Support FLSA Retaliation Claim – from Workplace Prof Blog
• Supreme Court Rules Oral Complaints Of Wage Violations Are Protected Under FLSA – from World of Work
• USSCt: Oral Complaints Are Covered Under the Fair Labor Standard Act’s Anti-Retaliation Provision – from Alaska Employment Law
• Oral Complaint Protected From Retaliation Under FLSA – from Hawaii Labor and Employment Law
• Supreme Court Defines When an Employee Complaint is a “Complaint” – from TLNT
• Supreme Court Decides FLSA Retaliation Case based upon Oral Notice – from Alabama Employment Law Report

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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.

BREAKING NEWS: FLSA anti-retaliation provision covers oral complaints, per SCOTUS

This morning, the Supreme Court held that the FLSA’s anti-retaliation provision includes oral, in addition to written, complaints.

• A copy of the opinion in Kasten v. Saint Gobain Performance Plastics is avaiable for download here.
• You can read my prior thoughts on this case here.

I’ll have analysis of this opinion tomorrow, including what it means for employers.

[Hat tip: Lawffice Space]

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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.