Ohio pushes to be on the forefront of paid sick leave

This morning's Columbus Dispatch reports that supporters of the proposed Ohio Healthy Families Act (a union-led, statewide coalition) have collected the required 140,000 signatures to put the statute before the General Assembly when it begins its 2008 session in January. If the legislature fails to act within 120 days, supporters could collect another 120,683 signatures to submit the issue to voters in the November election.

The proposed law would require all companies with at least 25 employees to give employees who work at least 30 hours a week 7 paid sick days a year. Part-time workers would receive a prorated number of paid days off. Employees would be able to use the sick days for themselves or to care for a child, parent, or spouse, and for physical and mental illnesses, injuries, other medical conditions, and preventative care. Employees would also be able to carry over a maximum of 7 unused sick days from year to year. The proposed law mirrors the FMLA on issues such as notice, medical certifications, and anti-retaliation.

While this law will clearly impact those small businesses that currently do not provide for any paid leave, even those employers who already provide paid sick leave should be concerned about this proposal. It will make it harder to monitor and enforce attendance policies, provide a potential disincentive for employees to return from sick leaves, and create a new cause of action employers will have to defend against. Additionally, the potential of a November 2008 ballot initiative adds intrigue to this issue. Will a liberal issue such as paid sick leave draw more Democrats to the polls and help carry Ohio for that party in the Presidential election? Does that risk create an incentive for the Republicans to act on this initiative in January? This law would put Ohio out in front of the curve on this issue, as it would be only the 4th state to enact a paid leave of absence law, fairly progressive for a state that is not known as such.

Click here for the full text of the Ohio Healthy Families Act.

Tepper v. Potter sets potentially narrow standard for religious accommodations

The Sixth Circuit this week handed down a significant decision that requires a job loss or some actual discipline before the denial of a religious accommodation can be actionable.
After several years of working for the U.S. Postal Service as a full-time letter carrier, Martin Tepper became a Messianic Jew, strictly observing the Sabbath every Saturday. From April 1992 through January 2003, the USPS accommodated his religion and did not require him to work Saturday's or Jewish holidays. At the time, its staffing levels enabled that accommodation without disrupting the rotating day-off schedule of other employees. It is estimated that the accommodation cost the USPS between $7,000 and $9,000 per year in overtime payments to covering employees. By 2003, however, Tepper's branch suffered a decrease in staffing levels, from 36 employees to 32 employees. Management found it more difficult to accommodate Tepper's day off, and had to assign co-workers to work more days than the rotating schedule allowed. While no co-worker formally complained about the arrangement, enough grumbled for their union to hold a meeting, to which Tepper was not invited and at which his co-workers unanimously voted to recommend ending the Saturday accommodation. Shortly thereafter, the Post Office ended the accommodation. Instead, it permitted Tepper to use annual leave and leave without pay on Saturdays, and encouraged him to reserve some of his vacation time for the Saturday absences.
While continuing to work at the Post Office, Tepper sued, contesting the removal of the Sabbath accommodation and claiming that the use of leave without pay reduced his annual pay and future retirement benefits. The District Court and the Sixth Circuit disagreed and found that the discontinuing of the accommodation did not discriminate against Tepper. The Court narrowly read the required elements of a failure to accommodate claim, and required Tepper to prove that he was either "disciplined or discharged" for failing to comply with an employment requirement that conflicted with his religious practice. Because a loss of pay does not amount to "discipline or discharge" Tepper could not prove his case.
As I wrote a couple of months ago (click here for my post on religious accommodation claims), common examples of reasonable accommodations for an employee's sincerely held religious beliefs are flexible scheduling, voluntary substitutions or job swaps, and job reassignments. The Tepper Court suggests, if not impliedly holds, that the denial of an accommodation, no matter how reasonable the request might be, is not actionable unless the affected employee suffers actual discipline or a job loss as a result of the denial. Thus, Tepper might have had a viable claim if he had quit the Post Office claiming religious intolerance, or if he observed his faith, did not show for scheduled Saturdays, and was terminated for attendance violations. I'm not sure that we want to force a job loss on a devout employee before that employee can claim a failure to accommodate. The Tepper decision seems to be much too narrow a ruling of the conduct Title VII is supposed to protect.
While Tepper is now the law in Ohio, Michigan, Kentucky, and Tennessee, I caution that all companies tread very lightly before denying or rescinding a religious accommodation in its wake. The next employee might not be as proactive as Mr. Tepper, instead opting to resign or force a termination before suing for the failure to accommodate.
Click for a copy of Tepper v. Potter.

Some guidance for dealing with office romances

Good Morning America this morning posed the question, "Office Romance: Is It Worth It?" GMA gives some tips for employees thinking about getting involved with a co-worker. I'm going to discuss several of them, from the employer's perspective:

1. Check the company policy. If your organization does not want co-workers dating each other, it is best to have a formal, written no-fraternization policy in place. Such policies can have a range of restrictions, depending on how strongly your company feels about intra-office relationships. The scenario that creates the greatest risk if a relationship goes south is a subordinate dating a manager or supervisor within the direct chain of command, or an executive. You should consider either prohibiting those relationships outright, or requiring full disclosure to HR with a signed writing by both parties stating that the relationship is consensual. For reasons that should be obvious, I prefer the former over the latter, but ultimately it is an organizational decision. Regardless, if you plan on disciplining or termination an employee for engaging in such a relationship, you best have a policy in place prohibiting the conduct that you can rely upon to support the decision. Any discipline, however, must be meted out fairly and equitably. The surest way to a discrimination lawsuit is to discipline one party to the relationship but not the other.
2. Keep e-mail clean. Employees generally should not have any expectation of privacy in corporate e-mails or internet usage. To be clear, it is best to have a formal written policy spelling out your company's expectations about appropriate computer usage. And again, it is largely an organizational decision. Some companies do not mind reasonable computer use for personal business at work, so long as employees are getting their work done and not abusing the privilege. Others want 8 hours of work every day, with no distractions. Regardless, computer usage must always be appropriate, and inappropriate usage (dirty e-mails, pornography, etc.) must be dealt with quickly.
3. Consider your colleagues and keep it professional. Courts are split as to whether employee favoritism as a result of a consensual relationship between two employees can create a sexual harassment cause of action for an uninvolved but negatively affected co-worker. For example, the California Supreme Court has recognized such a claim, while the Seventh Circuit has rejected it. This uncertainty in the law presents some risk for employers. The best risk management would be a blanket prohibition on all office romances, although some companies do not want to be that draconian. The next best practice is to put a policy in place that expresses your organization's protocol for office romances, uniformly apply that policy, and promptly investigate any complaints of harassment that stem from office romances or otherwise.

There is no such thing is a teflon employer. Employees can sue you at any time, and these days for just about any reason. The best you can do is have policies that match your organizational style, uniformly and neutrally apply those policies, and make the best business decisions that you can in the given circumstances. While these steps cannot prevent against a lawsuit, they will put you in the best position to defend against one if it is filed.

A little self promotion

I encourage everyone to check out this week's Carnival of HR hosted by The HR Capitalist, one of the truly excellent HR blogs. Kris has graciously linked to my post from a few weeks ago on Abdulnour v. Campbell Soup Supply Company and the importance of documenting performance issues.

If you want to stay on top of these posts, the best way to do it is by subscribing to my feed. I've made it easy for you by giving you two ways to have my musings delivered -- either in a reader (I'm partial to Google Reader), or by e-mail delivered to your inbox every time I post. I also encourage everyone to check out all of the links in my blogroll. The employment law and HR blogging community is flourishing, and all of the blogs listed have something worthwhile to read almost every day.

GO TRIBE

(with insincere apologies to any readers I may have in Boston)

Happy Boss's Day

Today is National Boss's Day. I was planning on writing a long post detailing the history of this important holiday, noting that it was first celebrated in 1958 by Patricia Bays Haroski, a State Farm employee who chose October 16 because it was the birthday of her boss, who also happened to be her father. I was going to remind everyone that the best bosses follow the golden rule -- treat your employees as you would want to be treated, or you would want your spouse, or child, or parent to be treated -- and that if more bosses followed this rule, 90% of employment lawsuits would never get filed.

Instead, let's all commemorate this day with the world's greatest boss, Dunder Mifflin's Michael Scott. Happy Boss's Day everyone.

6th Circuit affirms importance of an objective plan to support a reduction in force

It is always so refreshing when a court provides a nice, neat summary to explain its decision in a case. So, when you read the following introductory paragraph from today's 6th Circuit decision in Blair v. Henry Filters, Inc., you might be inclined to think there is no need to read any further:

When a fifty-seven-year-old's direct supervisor taunts him as "the old man on the sales force," removes him from a profitable account because he is "too old," and tells another employee he "needs to set up a younger sales force" before terminating the employee, can the employee's age-discrimination claim survive summary judgment? We believe it can.

The key facts in Blair are few. Blair, 57 years old at the time of his termination in August 2003, worked for Henry Filters, an industrial manufacturer, in 1986. In 2000, John Tsolis became Henry Filter's VP of Sales and Blair's immediate supervisor. Tsolis called himself as "The Terminator," a self-referential nod to his love of firing employees. Blair claimed that in the years leading up to his termination, Tsolis made ageist remarks about him, such as calling him "the old man."

The company, after suffering some financial hardship, between 2001 and 2003, reduced its workforce by terminating 67 employees, out of which 24 were not replaced. That reduction in force lacked a clear plan for its execution. The Court described it as "chaotic, occurring in fits and starts." In August 2003, without explanation, Tsolis notified Blair that his employment was terminated. At the same time, Henry Filters also terminated the employment of a 37-year-old salesperson and a 39-year-old secretary. A few months prior, Tsolis was overheard saying that he needed to set up a younger sales force, although he had no referred to anyone by name. After Blair's departure, a 42-year-old current employee assume his responsibilities for about four months, after which it hired a man in his twenties for a sales position, although there was no evidence of whether than person took over any of Blair's former sales territories. The Court first concluded that the district court correctly concluded that Blair had not presented any direct evidence of age discrimination. The ageist comments he attributed to Tsolis were either not related to the termination decision, or lacked a connection between Tsolis's desire for a younger workforce and Blair's termination.

Notwithstanding the lack of direct evidence of age discrimination, the Court found that the trial court erred in dismissing the age claim. Even though the alleged ageist comments were attenuated in time from the termination decision and not directly tied to the decision to terminate Blair, the Court found that they nevertheless were sufficient circumstantial evidence the Henry Filter singled out Blair for discharge because of his age. The Court also relied heavily on the lack of an objective plan for the reduction in force, noting that "a lack of evidence regarding a company's objective plan to carry out a reduction in force is a factor that might indicate that an alleged reduction in force is pretextual."

There are two key issues worth some discussion. First, there is no reconciliation by the Court of ageism, on the one hand, versus the inclusion of a 37-year-old comparable in the RIF. Secondly, the Court seems to blur of the required showing for a prima facie case and pretext in a reduction in force context. The Court relies on the same exact evidence to conclude that a genuine issue of material fact exists for the 4th element of Blair's prima facie case (i.e., whether there is additional evidence tending to indicate that the employer singled out the plaintiff for discharge for an impermissible reason) and pretext. It appears that if a genuine issue of material fact exists on the 4th prima facie element, the same will hold true for the issue of pretext. Thus, in RIF cases, the Court seems to have eliminated the pretext analysis, putting it all up front in the prima facie showing. At the end of the day, it may not make a difference, since in a RIF case the employer's legitimate non-discriminatory reason (the RIF itself) is self-justifying, and it is always the employee's burden to overcome that reason and prove that it was a discriminatory reason that motivated the discharge. In other words, the battle front is whether the plaintiff was legitimately included in the RIF, and it doesn't much matter through which hoop one makes the plaintiff jump in meeting that burden.

The Blair decision also importantly highlights the need for written objective criteria in carrying out a bona fide reduction in force. Ideally a RIF should be carried out with severance payments in exchange for signed releases, but that is not always the case. Economic or other realities sometimes make severance payments impractical, and some employees would rather take their chances in court than sign a release. All RIFs should be designed and implemented with the understanding that the selection criteria may have to be defended in court. As Blair illustrates, that defense is more difficult without objective criteria as to who stays and who is RIFed. As always, these programs are best designed, or at a minimum reviewed, by employment counsel.