OCRC rebukes Govenor's attenpt to stall new maternity leave rules

I was planning on taking the holiday weekend off, but then Governor Strickland had to publicly come out against the adoption of the new pregnancy leave regulations.

According to this morning's Cleveland Plain Dealer, Ohio's Governor has asked the Ohio Civil Rights Commission to indefinitely delay its implementation of new maternity leave rules. The Governor said Ohio's businesses need more time to study the proposed maternity-leave timeframe, which will grant up to 12 weeks of medically recommended leave for pregnancy, childbirth, and related medical conditions for every female employee of virtually all Ohio businesses. The OCRC politely rejected the Governor's plea, and will send its proposed rule to the legislative rule-making committee for consideration on December 3 as planned. The Commission Chairperson, Barbara Sykes, a Strickland appointee, said that the Commission has already granted a concession to businesses by making the duration of the leave tied to the employee's doctor's medical approval.

The adoption of these new rules get more bizarre with every turn. First, the "medically recommended" language was slipped in at the 11th hour with no fanfare. Now, the state's Democratic governor, swayed by business interests, is asking his appointee to delay adoption of a measure that is is largely lauded by members of his own party. While it is doubtful that the legislative rule-making body would block these regulations, nothing would surprise me at this point. Everyone should assume that the new rules will go into effect as planned, but continue to watch this blog for further updates on Ohio's new pregnancy leave regulations.

What else I'm reading this week #6

Happy Thanksgiving everyone. I'll be taking a much needed few days off, from both the hectic practice of law and the frantic blogging I've been doing. For everyone's holiday reading pleasure, another batch of worthy clicks:

Age Discrimination–Solutions, from The Word on Employment Law, providing some dead-on practical advice on how to guard against age claims.

Federal Judicial Center: Plaintiffs Doing Relatively Well in Federal Employment Discrimination Cases, from the Workplace Prof Blog, giving us the surprising statistic that only between 9-14% of employment cases are dismissed on a summary judgment in the federal court system.

Worker Uses Version Of "The Dog Ate My Homework", from Legal Juice, jumping over the pond to Ireland to give us the story of an employee awarded 1,000 euros after being terminated for falsely telling his employer he needed off from work to take his sister to the doctor.

Summary of ADA Restoration Act Senate hearing, from Workplace Horizons, reporting on the Senate hearings on legislation to strip away many pro-business protections from the ADA.

Sports and HR - What the Knicks Teach Us About Manager/Employee Friendships, from The HR Capitalist, drawing advice on how to deal with problem employees from the Isiah Thomas/Stephon Marbury debacle. Sexual Harassment Policy & Practice, from the Pennsylvania Employment Law Blog, following up on my earlier series of posts on best practices for sexual harassment policies and remedial actions.

Blawg Review #135 is worth your time

Blawg Review #135 is online, hosted this week on Transgender Workplace Diversity, a blawg devoted to law, politics, and policy issues for HR, diversity, and legal professionals. It is a conglomeration of an amazing number of posts from the past week on diversity, discrimination, and civil rights issues. Please jump on over and support the tremendous amount of effort Dr. Weiss put into this weeks Blawg Review.

Congress debates legality of English-only rules

In June, I wrote that under the EEOC's regulations, English-only workplace rules are presumptively illegal unless required by business necessity. See English-only workplaces spark lawsuits. The debate over the appropriateness of these regulations has now reached the floors of both houses of Congress. Conservative lawmakers were spurred to action after the EEOC sued the Salvation Army over the termination of two Hispanic employees for speaking Spanish while sorting clothes. In April, Republican Senator Lamar Alexander, with the support of three Democrats, attached an English-in-the-workplace provision to the EEOC budget bill. That bill, which passed the Senate in June, would make it unlawful for the EEOC to bring lawsuits challenging English-only workplace rules. In the House, meanwhile, Hispanic members narrowly won a vote in July to reject a similar provision. Last week, however, the House took a non-binding vote of 218-186 urging House negotiators on the underlying budget bill to accept Alexander's language. Meanwhile, Speaker Nancy Pelosi has promised that Alexander's English-only provision will be killed, and House-Senate negotiations on the underlying bill have been put off indefinitely. Fox News quotes Senator Alexander: "One way to make sure that we have ... a little more unity that is our country's greatest accomplishment is to make certain that we value our common language.... And that we not devalue it by allowing a federal agency to say that it is a violation of federal law for an employer in America to require an employee to speak English on the job."

While Congress and the EEOC hash out these issues, employers should tread lightly if considering implementing an English-only rule. Such policies should only extend as far as necessary to reach the articulated business reason, and employment counsel should be consulted to evaluate whether the policy is not discriminatory as written or as applied.

Failure to take advantage of remedial meaures dooms employee's sexual harassment claim

In what has become an unintentional series on employers' responsibilities related to workplace harassment, today's installment will examine a company that properly promulgated an effective harassment policy, meaningfully responded to a complaint upon receipt, and in the process saved itself from liability for some fairly offensive conduct by a supervisor. Brenneman v. Famous Dave's of America provides a solid example of what to do, in contrast to last week's two examples of what not to do.

Christine Brenneman sued Famous Dave's for sexual harassment. She claimed that her immediate supervisor, David Ryburn, subjected her to a hostile work environment through the following actions: daily winks and blowing kisses; at least three slaps on her buttocks; at least twice daily pulling on the badge attached to his belt; when she was having difficulty putting a letter into an envelope, telling her to "pretend it was a condom and slip it on real soft"; and when she asked him to "stab" a receipt, responding, "I'd love to stab you." There was no issue as to whether those incidents created a hostile work environment, but whether (1) Famous Dave's exercised reasonable care to prevent and promptly correct any sexually harassing behavior, and (2) whether Brenneman failed to take advantage of any preventative or corrective opportunities provided by the employer or otherwise to avoid harm. Because Brenneman unreasonable quit her employment and did not suffer a tangible employment action, proof of both elements would permit Famous Dave's to escape liability for the harassment by its supervisor, for which it would otherwise have been vicariously liable.

So let's look at Famous Dave's policies and how it responded to Brenneman's complaint:

1. Anti-harassment policy. Famous Dave's had a facially valid anti-harassment policy, with a non-retaliation provision, and a flexible reporting procedure, listing four different people an employee could contact in case of harassment. Famous Dave's also maintained a 1-800 employee hotline that employees could use to report harassment. It distributed the policy to all employees, including Brenneman, and specifically trained about the policy and how to use it.
2. Prompt corrective action. When Brenneman reported the harassment via the 1-800 hotline, Famous Dave's immediately sent an HR representative to investigate and stop the harassment. It attempted to work out a new schedule with Brenneman to keep her away from Ryburn. It also offered to transfer her to a different store 5 miles away. Brenneman did not accept any of the remedial measures, and instead quit.

Famous Dave's did most things right in responding to Brenneman's complaint. Unlike the employer in EEOC v. V & J Foods, Famous Dave's had a meaningful anti-harassment policy. It was widely disseminated, the employees received training about the policy, and they were given multiple avenues to complain, including a simple 1-800 hotline to call. Unlike the employer in Engel v. Rapid City School District, Famous Dave's acted promptly and tried to implement what it thought was reasonable, meaningful corrective action to end the harassment.

I question whether offering to transfer the complainant is the best practice, although a complainant does not have a legal right to the remedial action of her choice, so long as the action remedies the harassment and the complainant does not suffer any adverse consequences for complaining. For example, there could be a difference between a transfer to a store 5 miles away as compared to 50 miles away. The corrective action must be corrective, not retaliatory.

It is also unclear from the opinion if this the was first complaint levied against Ryburn, and what consequences he suffered for his misconduct. Assuming this was his first instance, I would like to see him undergo some harassment re-training (either one-on-one, or as part of an organizational training session), and be clearly warned that any further infractions will result in his termination. If he was a serial offender, or had other performance problems, termination may be the preferred avenue.

Let me add that harassment training is an on-going obligation. It does not end after an employee receives the handbook or anti-harassment policy. It should be discussed with all employees during orientation, and organizational training should take place at least once every two years, or sooner if a problem arises.

Can employers base employment decisions on employees' personal internet activities?

Courtesy of The Washington Post comes this gem:

Kevin Colvin, an intern at the Anglo Irish Bank of North America ... e-mailed his manager on the afternoon of Oct. 31 claiming "something came up at home" in New York and that he needed to miss work the next day. For whatever reason, perhaps managerial intuition, his boss decided to inspect Colvin's Facebook page on Nov. 1 and apparently found pictures of the intern dressed as a fairy, beer in hand, at a Halloween party in Massachusetts.

Rather than reprimand him, the manager decided to have a little fun. He shot Colvin an e-mail back stating: "Thanks for letting us know -- hope everything is ok in New York. (cool wand)" with the fairy picture attached. And if that weren't embarrassing enough, the manager reportedly BCCed the rest of the company. Those images are now being forwarded to offices around the world for cubicle dwellers to enjoy.

(The article has a link to the offending picture, for those who are curious).

The internet now provides a plethora of social outlets -- blogs, social networking sites such as MySpace, Facebook, and Twitter, video repositories such as YouTube and Break, and even an entire alternate universe, Second Life. Once someone puts something out on the internet, it becomes fair game for anyone and everyone to see, employers included. The WP article cites a vault.com survey in which 82 percent of employers responded that negative information from an online profile would affect their decision to hire an applicant. Presumably a similar but likely small number would also consider negative online information in a decision to continue the employment of a current employee. It is hard to imagine that an employer is somehow invading an employee's privacy by viewing something that is publicly available on the web. If an employee is at-will, and standards are otherwise neutrally applied, there should not be anything unlawful about making a hiring or employment decision based on an employee's personal internet presence, especially if you catch the employee in a lie, such as was the case with Kevin Colvin.

What else I'm reading this week #5

Another week, another batch of excellent employment law and HR-related posts from the blogosphere.

30 Interview Questions You Can't Ask and 30 Sneaky, Legal Alternatives to Get the Same Info, from HR World, answering the question of what can and cannot be asked of applicants during job interviews and how to still obtain relevant, job-related information without discriminating. As an aside, I don't find the alternatives "tricky." There's nothing underhanded about asking an interviewee what days he or she is available for work instead of asking about religion, or asking whether an employee is available to work on short notice or overtime (if it is required) instead of whether he or she has small children at home. It's simply good practice to determine as much as you can about an applicant's fit for a position while staying within the parameters of what is an is not legal to ask.

Employee Resigns - Walk Them Out the Door Or Let Them Work a Notice?, from The HR Capitalist, on the issue of whether or not to accept a two-week notice from a resigning employee.

New Child Care Option: Bring Baby to Work?, from the ABA Journal, on employers who allow employees to bring their children with them to work.

"Supreme Court To Decide Age Discrimination Case!" - Is This Important to Employers in Connecticut?, from the Connecticut Employment Law Blog, citing yours truly and remarking that the Supreme Court's decision in Federal Express v. Holowecki will most likely have little practice effect because of the idiosyncrasies of EEOC practice under the ADEA. While we're discussing Federal Express v. Holowecki, I should mention that in Ohio this case means even less. Ohio's employment discrimination statute provides for a private right of action with no requirement of first filing a discrimination charge with any agency, state or federal. Employees in Ohio can go to court on any discrimination claim without ever having even thought about the civil rights commission or the EEOC. The only caveat is that age claims filed in this way have a 6 month statute of limitations, while all other types of discrimination have a 6 year statute.

Do You Feel Dirty When You Google Candidates?, also from The HR Capitalist, advising why employers should be "Googling" job candidates. Let me add that as long as companies are Googling all applicants, and not singling out those of certain protected classes, there is nothing inherently unlawful about this practice.

Work/Life Balance, the NFL and Bereavement Leave, also from The HR Capitalist, commenting on he Minnesota Vikings docking wide receiver Troy Williamson one game check for missing a game against to attend the funeral of his grandmother.

Tracking employees who are slackers, from Sequence Inc. FRAUDfiles, feigning surprise that employees abuse paid leave policies.

Public Policy Dictates that Web-Based Privileged Emails Be Protected, Notwithstanding Employer's Right to Inspect Laptop Contents under Email Policy : Electronic Discovery Law, from Electronic Discovery Law, reporting on Sims v. Lakeside School, a federal employment discrimination case out of Washington State, which held that an employee has no reasonable expectation of privacy in the contents of an employer-furnished laptop, including emails sent and received on an employer email account, but preserving the privilege of emails sent to his lawyer and spouse.