Big changes in the political winds?

I've written a lot since starting this blog about the various bills introduced in the House and Senate to amend Title VII and other employment law statutes. Indeed, one of my very first posts asked whether federal legislation would bring us new protected classes. Following my lead, the National Law Journal has nicely summarized the assorted employment law reforms Congress has introduced this session:

• Ledbetter Fair Pay Act: reverses the Ledbetter decision by setting forth that each discriminatory paycheck is a discrete act of discrimination for purposes of triggering Title VII's statue of limitations.
• American with Disabilities Restoration Act: amends the definition of "disability" to undo a decade of Supreme Court precedent.
• Employment Non-Discrimination Act: adds protections for sexual orientation and gender identity to Title VII.
• Genetic Information Non-Discrimination Act: prohibits employment decisions based on genetic information.
• Civil Rights Tax Relief Act: eliminates taxation of non-economic damages received by employment plaintiffs.
• Equal Remedies Act: removes Title VII's caps on compensatory and punitive damages.
• Arbitration Fairness Act: invalidates pre-dispute arbitration agreements requiring arbitration of employment disputes.

Some of these reforms, namely ending the loophole that allows companies to invidiously discriminate on the basis of sexual orientation, are long overdue. Others, such as the ADA Restoration Act, the Equal Remedies Act, and Ledbetter Fair Pay Act, will have far greater and more onerous consequences for employers. Because the Democrats don't have enough votes to overturn a Presidential veto, most of these bills currently are nothing more than political rhetoric. If, however, a Democrat wins the White House, 2009 will be a very interesting year, as companies should expect sweeping changes to federal employment laws, the likes of which have not been seen for more than a decade.

I can't make this stuff up

Ollis v. HearthStone Homes presents a textbook example of how not to make personnel decisions, and is also just plain funny.

The owner and president of HearthStone, John Smith, practices a fringe religion that focuses on Mind Body Energy (MBE) sessions to cleanse one's negative energy. He required his employees attendance at such MBE sessions to enhance their work performance. The case recounts Smith's interesting MBE practices:

According to Smith, an employee’s negative energy could be discovered either through a machine that tests a person’s electromagnetic energy field or through a manual process called “muscle testing.” Muscle testing may require a person to extend his or her arms while answering “yes” or “no” questions. If the person’s extended arms remain strong while questioned as someone pushes down on the arms, the answer is “yes,” whereas, weak arms indicate an answer of “no.” Another example of muscle testing is to place two fingers together and to answer “yes” or “no” questions. If the fingers remain together, the answer is “yes”; whereas, if they separate, the answer is “no.” Smith used muscle testing to make business decisions. Smith equates muscle testing “to someone who may pray before they make decisions.”

On one occasion, Smith determined by muscle testing an employee that drainage problems in a HearthStone subdivision were caused by that employee's ancestors perishing on the land during the Ice Age. Smith determined that the employee was unknowingly defending the land on behalf of her ancestors, and required her to attend MBE sessions to cleanse her negative energy.

Smith also used muscle testing in conducting a sexual harassment investigation against the plaintiff, Doyle Ollis, a devout Christian. After the investigation, Smith terminated him for “poor leadership and lack of judgment," which the jury found to be pretext for Ollis's opposition to Smith's MBE practices and religious discrimination. For the termination, the jury awarded Ollis a whole whopping dollar in damages (plus attorneys fees). Perhaps the jury's low award was influenced by Ollis's admission that he had asked the complaining female subordinate several inappropriate questions, including asking her about her “freakiest” sexual encounter, how long she had known her spouse before she had sex with him, how many sexual partners she had, and if she wore thong underwear. As an aside, HearthStone later terminated the complaining employee for reportedly “removed her clothing at a golf outing and ... doing cart-wheels naked on a golf course.”

Like I said, I can't make this stuff up.

Suspended Bengal claims disability discrimination

The following is from the Cincinnati Bengal's website:

The attorney for Bengals linebacker Odell Thurman has filed a claim of disability discrimination against the NFL. John Michels said Thursday that he has notified the U.S. Equal Employment Opportunity Commission that he feels his client is being discriminated against because he is perceived as an alcoholic.

Michels said it doesn't matter that Thurman acknowledged in court that he is an alcoholic when he appeared for a DUI stemming from a Sept. 25, 2006 traffic stop. He indicated that Thurman has passed all required programs stipulated by the league.

"He has not had an alcoholic problem since the incident last fall," Michels said.

The NFLPA has not yet responded to Thurman's request to appeal to NFL commissioner Roger Goodell's July 26 decision to extend Thurman's year-long suspension for another year. Michels said if the EEOC finds for Thurman, the commission can offer such remedies as reinstatement and back pay.

Michels cited a recent precedent. The EEOC ruled in favor of Roy Tarpley, the former Dalllas Mavericks forward banned in 1995 for violating the league's substance abuse policy. The commission said the NBA violated the Americans with Disabilities Act when it didn't reinstate Tarpley even though he had passed all drug tests taken in the last four years.

Michels said the Bengals are named in the claim only because they are Thurman's direct employers. He said the claim was not a Bengals decision and that the commission is aware that the suspension came from the NFL and not the club.

I'm not sure what to make of this claim. On the one hand, you have a new NFL commissioner try to put his stamp on the league as a no-nonsense disciplinarian. Then again, if Thurman has truly been clean and sober for the past year, and has complied with the terms of his suspension, it could appear that the NFL is punishing him for his addiction, and not past violations of league rules. My best guess is that the EEOC will dodge these tough issues and never reach the merits of the charge, because the entity imposing the discipline, the league itself, is not Thurman's "employer," and his employer, the Bengals organization, had nothing to do with the discipline.

6th Circuit expands FMLA job restroration rights

Yesterday the 6th Circuit decided Bryson v. Regis, a significant FMLA decision that could have far-reaching implications for employers' administration of FMLA leave programs and employees' job restoration rights.

Karen Bryson worked in a Lexington, Kentucky, Supercuts for 15 years, starting as a stylist and working her way to store manager. As store manager, Bryson reported to area manager Kim Sawyer. In December 2003, after injuring her knee more than year hence, Bryson took an FMLA leave of absence for corrective surgery. Deposition testimony revealed that Sawyer was very upset with Bryson's leave, referred to her in management meetings as a "crippled ass," and told co-workers that she would make sure Bryson did not have a job to return to after her leave.

Bryson was scheduled to return on March 10, 2004, at the end of her 12 week entitlement. On March 8, Bryson left Sawyer a voice mail message to let her know that she could not return to full status on March 10. When Sawyer never returned the call, Bryson next contacted one of Sawyer's contemporaries, Julie Wilson. Bryson told Wilson that she would not be able to stand for 10 hours a day, but that she could work a full day albeit with some standing and some sitting. Also on March 8, Bryson's doctor completed Supercut's "Release/Intent to Return to Work" form. On that form, Bryson checked the box that indicated that she could not at that time perform all of the essential functions of her position and was requesting assistance with her temporary restriction of seated work only. Bryson mailed the form to Supercuts on March 8, but Supercuts did not receive it until March 15.

Meanwhile, on March 10, when Bryson was no call/no show, Supercuts terminated her employment via a letter authored by Supercut's corporate FMLA Administrator, which stated: "It has been brought to my attention that as of today your health care provider has not released you to return to work with or without restrictions. Because you have exhausted your 12 workweek entitlement to job protected leave under the FMLA, we are unable to continue to hold your position."

Bryson sued Supercuts and its parent corporation, Regis Corp., for FMLA retaliation and disability discrimination. The district court granted summary judgment to the employer and dismissed Bryson's lawsuit. The Sixth Circuit, however, in a decision that has potentially far-reaching implications in how employers administer their FMLA leave programs, reversed the dismissal of the FMLA retaliation claim and remanded the case for trial.

The resurrection of Bryson's FMLA claim is troubling. The Court focused on the gap between Supercut's letter of termination and its receipt of Bryson's "Release/Intent to Return to Work" form, coupled with Sawyer's anger over the leave. It found those two factors to be sufficient evidence of pretext to get this case to a jury. It appears that the 6th Circuit was bothered by Sawyer's comments, and saved Bryson's claim even though she could not have been legally entitled to her job on March 10. Indeed, the Court's analysis ignores one crucial undisputed fact -- regardless of anyone's intent, Bryson was simply not able to return to her job on March 10. She was instead requesting reinstatement to a temporary light duty position, but as the 7th Circuit confirmed earlier this month, the FMLA does not provide for light duty. Nevertheless, Bryson v. Regis implies, if not explicitly holds, that employers cannot terminate an AWOL employee at the end of FMLA leave if the employer knows that the employee can return to work in some limited fashion.

This case seems to create new rights under the FMLA that heretofore did not exist. Even though Bryson was not disabled under the ADA, the 6th Circuit seems to require Supercuts to have accommodated her injury either by providing her light duty, otherwise modifying her job functions, or extending her leave beyond the FMLA's 12 weeks. Bryson presents a significant expansion of FMLA rights, and places all similar terminations at risk unless the employee is entirely unable to return in any capacity at the end of the FMLA leave.

The Bryson case is also a good reminder for companies to build examples such as Sawyer's retaliatory comments into management harassment training. While the 6th Circuit seems to have expanded employee job restoration rights under the FMLA, one has to wonder if this case would have come out differently without Sawyer's statements about Bryson's injury and continued employment.

Does individual liability have unintended consequences?

Law.com reports today on the increasing number of executives and managers being personally sued for their work-related decisions. Under Ohio's employment discrimination statute, managers and supervisors have been personally liable for their own acts of discrimination since the Ohio Supreme Court decided Genaro v. Central Transport in 1999. The federal wage and hour laws (the FLSA, the FMLA, and the Equal Pay Act) also provide for personal liability, but the same does not hold true for Title VII, the ADEA, and the ADA. Many Ohio discrimination suits name an individual in addition to the company because suing a local manager or supervisor of a non-local company will block removal to federal court. Does that strategy, however, have an intended consequence? According to the law.com article, some attorneys believe that naming an individual unnecessarily ups the ante in employment discrimination cases, causing the defense to dig in their collective heels, making cases more difficult to settle because more people are involved who want their personal reputations cleared. In fact, employers often take these cases just as personally as do employees, because they involve hurtful allegations of racism, sexism, or other forms of bigotry. Whether suing a manager or supervisor will render a case more difficult to resolve should be considered before any individual is added as a defendant to a discrimination suit.

UPDATED - New rules require termination of illegal immigrants

The Department of Homeland Security has announced new rules on the safe-harbor procedures for employers who receive SSA No-Match Letters. These rules require employers to terminate any employee who uses a fake social security number or otherwise cannot be documented as legal. The DHS has also published an interactive Safe Harbor Information Center for employers.

The regulations describe with specificity what steps employers should take upon receipt of a no-match letter:

1. Verify within 30 days that the mismatch was not the result of a record-keeping error on the employer’s part;
2. Request that the employee confirm the accuracy of employment records;
3. Ask the employee to resolve the issue with SSA;
4. If these steps lead to resolution of the problem, follow instructions on the no-match letter itself to correct information with SSA, and retain a record of the verification with SSA; and
5. Where the information could not be corrected, complete a new I-9 form without using the questionable Social Security number and instead using documentation presented by the employee that conforms with the I-9 document identity requirements and includes a photograph and other biographic data.

Employers unable to confirm employment through these procedures risk liability for violating the law by knowingly continuing to employ unauthorized persons.

Costs of compliance will potentially be high, especially for those employers that rely upon unskilled labor. Costs of non-compliance, however, could potentially be devastating. Employers cannot ignore these new rules. If you choose to disregard a No-Match Letter, and it is later determined that some of the employees listed are not authorized to work, your receipt of the letter is evidence that you have knowingly continued to employ unauthorized workers, which could lead to significant criminal and civil sanctions.

Are you facebooking as part of background checks?

Msnbc.com writes on the wealth of information employers can learn from a job applicant's Facebook and other social networking webpages.

Job candidates who maintain personal sites on Facebook or MySpace are learning — sometimes the hard way — that the image they present to their friends on the Internet may not be best suited for landing the position they’re seeking.

Although many employers are too old to qualify as members of the Facebook Generation, they’re becoming increasingly savvy about using social networking sites in their hiring due diligence. That has both job candidates and human resources professionals debating the ethics and effectiveness of snooping on the Web for the kind of information that may not come up in a job interview.

According to a March survey by Ponemon Institute, a privacy think tank, 35 percent of hiring managers use Google to do online background checks on job candidates, and 23 percent look people up on social networking sites. About one-third of those Web searches lead to rejections, according to the survey.

Social networking sites have gained popularity among hiring managers because of their convenience and a growing anxiety about hiring the right people, researchers say.

Big corporations long have retained professional investigators to check job applicants’ academic degrees, criminal records and credit reports. But until now the cost has deterred the ability of smaller firms to do the same level of checking, said Sue Murphy, a director of National Human Resources Association.

These online searches can reveal a wealth of information not otherwise attainable through a more customary background and criminal records search: risqué pictures, pictures of drug use or heavy alcohol use, poor writing skills, and radical political positions. Any one of these could convince a potential employer that a particular job candidate is not not a good fit or not worth the risk of hiring.

A word of caution -- if you choose to make these searches part of your hiring process, you should do so uniformly to avoid the appearance of disparate treatment. That is not to say that every job candidate for every position needs to be screened, but if you are going to screen one candidate for a particular position, you should do the same for all candidates, and apply the same standards based on the results. While the online search itself is lawful, it is still illegal to use that information in a disparate manner to unlawfully discriminate.