Some shameless self-promotion

I'm quoted in an article in Business Insurance Magazine on the Greer-Burger vs. Temesi Ohio Supreme Court retaliation decision:

Jonathan T. Hyman, an employer attorney with Kohrman Jackson & Krantz P.L.L. in Cleveland, said the decision was correct.

The court “was basically balancing employees’ right against retaliation against anybody’s right under the First Amendment of the Constitution to petition the court and file a lawsuit,” said Mr. Hyman, who was not involved the case. “When you’re balancing degrees of importance, the Constitution is going to, and should, trump” the employee’s right against retaliation.

He added, though, that employers should “think long and hard” before filing such suits against employees. The employee’s attorney would likely allege that such a suit is retaliatory, he said.

Employers “face an uphill battle in the courtroom anyway” because those who serve on juries are more likely to be employees than employers, said Mr. Hyman.

To read the full article, click here.

What else I'm reading this week #9

Not surprisingly, another active week across the blogosphere. Please support my fellow bloggers by checking out some of these links.

We'll start out with a couple of wage and hour issues. The Pennsylvania Employment Law Blog cautions companies that there are tricks and traps involved in holiday and year-end bonuses, and to watch out for wage and hour mistakes. Meanwhile, the Evil HR Lady answers a question on the legality and advisability of making deductions from the salary of an exempt employee for time away from work (hint, don't do it, as I advised back in June).

John Phillips, at The Word on Employment Law, has posted the 1st half of a 6-part series on the art of firing employees. (Part I, Part II, and Part III). The highlights so far - fairly evaluate performance, use progressive discipline, be consistent, and document everything. Good, basic, sound advice for all companies to follow. John tells me that Parts IV, V, and VI will be posted in the coming days, so keep an eye out for them.

HR World asks the question, "Are you pregnancy-friendly?", and suggests that such an approach is needed to prevent the loss of talented employees to motherhood.

Finally, Kris Dunn, The HR Capitalist, reports on the proposed Healthy Families Act, which would require employers with more than 15 employees to offer full-time employees seven days of paid sick leave.

House passes expansion of FMLA for military families

By an overwhelming vote of 370-49, the House yesterday approved legislation that would, among other things, expand FMLA leave rights for the families of wounded service members. President Bush will be hard-pressed to veto a bill that also authorizes $696 billion in military programs. If enacted, the legislation will amend the FMLA and provide up to 6 months of leave to family members (i.e., spouse, son, daughter, or parent) of combat-injured service members to care for their loved ones. Click here for the text of section 675 of the National Defense Authorization Act for Fiscal Year 2008.

Hat tip to The FMLA Blog.

The year's worst employees

It's the time of year when everyone is putting out their year-end best of lists, and the employment realm is no exception. Careerbuilder.com has published its list of the year's worst employees. If you thought your company had some doozies, check out the list, available here: Worst Employees of the Year.

My personal favorite:

An off-duty airline employee was arrested on assault charges after he sat down next to a woman trying to sleep and allegedly touched her inappropriately, according to an affidavit filed with a complaint from the woman. The employee was charged with simple assault and was suspended from the airline until further review of the incident.

Feel free to comment with your best employee horror story from the past year.

Ohio Supreme Court holds that an employer's lawsuit against an employee who has engaged in protected activity is not per se retaliation

This morning, the Ohio Supreme Court issued a significant retaliation decision, Greer-Burger v. Temesi, which holds that "an employer is not barred from filing a well-grounded, objectively based action against an employee who has engaged in protected activity." In so ruling, the Court stated that it is balancing "the statutory right of an employee to seek redress for claims of discrimination without retaliation against the constitutional right of an employer to petition courts for redress."

The facts of the case are as follows. In 1998, Tammy Greer-Burger filed a sexual harassment suit against Lazlow Temesi. The case proceeded to trial, at which Temesi prevailed. Thereafter, Temesi filed suit against Greer-Burger seeking to recover the $42,334 in attorneys fees and costs he had incurred defending against the harassment suit, plus compensatory and punitive damages. In response to Tamesi's lawsuit, Greer-Burger filed a charge of discrimination with the OCRC, claiming that Temesi's lawsuit was retaliation for her protected conduct, the prior sexual harassment suit. Based solely on the fact that Temesi had filed suit, the OCRC found that Tamesi's lawsuit was prohibited retaliatory conduct, and ordered Temesi to immediately cease and desist from pursuing his lawsuit and to pay Greer-Burger the $16,000 she claimed to have expended in defending against it. The common please court and appellate court both affirmed the OCRC's decision.

In reversing the lower courts, the Supreme Court started and ended its analysis with the First Amendment's fundamental right to petition and seek redress in the courts. Despite the fundamental nature of that right, the Court recognized that the right to access courts is not absolute. The First Amendment does not protect "sham" litigation, that is, an objectively baseless lawsuit such that no reasonable litigant could expect success on the merits. To find that the mere act of filing a lawsuit is per se retaliatory, in the words of the Supreme Court, would "undermine the right to petition for redress by giving an administrative agency the power to punish a reasonably based suit filed in court whenever it concludes ... that the complainant had one motive rather than another.... This danger is further highlighted when the only evidence of the complainant's retaliatory motive is the simple act of filing a lawsuit." (internal quotations and citations omitted).

Because of the McDonnell Douglas burden shifting analysis used in retaliation cases, the Court placed the burden on the employer to demonstrate, as its legitimate non-retaliatory reason, that an alleged retaliatory lawsuit is not objectively baseless:

Instead, we find it more prudent to permit an employer the opportunity to demonstrate that the suit is not objectively baseless. In determining whether the employer’s action has an objective basis, the OCRC administrative law judge should review the employer's lawsuit pursuant to the standard for rendering summary judgment.... Thus, an employer needs to show his lawsuit raises genuine issues of material fact. If the employer satisfies this standard, the suit does not fall under the definition of sham litigation. The suit, therefore, shall proceed in court while the proceedings before the OCRC shall be stayed. The procedure outlined above falls within the jurisdiction of the OCRC as provided for in R.C. 4112.04 and promotes judicial economy because the employer's lawsuit will not have to be fully litigated in the trial court before the OCRC can make its determination as to the reasonableness of the suit. In this way, the OCRC essentially shall vet the action to ensure it is not sham litigation. (internal quotations and citations omitted)

The majority opinion concluded by recognizing the stigma of being falsely accused as a discriminator, and the importance of being able to seek legal redress to remedy that misclassification:

An employee's right to pursue a discrimination claim without fear of reprisal is a laudable goal entitled to considerable weight. The OCRC's position in this case, however, has the potential to give employees a carte blanche right to file malicious, defamatory, and otherwise false claims. As the concurring opinion of the appellate court astutely noted, the per se standard advocated by the OCRC does not advance the goal of Chapter 4112 when it "permits a claimant to engage in any kind of slander or defamation, and possibly even perjury, without consequence," and then precludes "those falsely accused of being discriminators from seeking legal redress." Greer-Burger, 2006-Ohio-3690, ¶ 38 (Corrigan, J., concurring).

Just because employees do not have carte blanche right to file malicious, defamatory, or otherwise false claims, does not mean that employers should rush into court to clear their names. Instead, employers should be wary in using Greer-Burger v. Temesi as carte blanche for filing lawsuits against unsuccessful discrimination plaintiffs. As the concurring opinion correctly points out, "the majority's 'not objectively baseless' test sets a very low threshold...." Merely because this case gives companies the apparent right to file a claim does not mean ultimate success on that claim. Indeed, the decision whether to pursue a claim against an employee or ex-employee who has brought a discrimination claim must be carefully thought out, and not merely filed as a knee-jerk reaction to being sued.

Should companies move their employment work to small and mid-sized law firms?

Last week, the Legal Intelligencer, as posted on Law.com, reported on the filing of a legal malpractice lawsuit by a nonprofit agency, the The Bair Foundation, against one of the world's largest law firms, Reed Smith. Now, you may ask yourself, why would the Ohio Employer's Law Blog care about a legal malpractice lawsuit filed in suburban Pittsburgh. The answer comes in two parts: 1) the underlying case was a religious discrimination case that was tried in federal court in Cleveland and resulted a nearly $200,000 jury verdict, and 2) the Bair foundation was charged $960,409 to defend the garden-variety discrimination case. According to the Law.com article:

The foundation said in the complaint that it was originally told the case would cost them $50,000. That was then upped to $112,000 during the case....

"In implementing its ambitious strategy of capturing global clients, which Reed Smith boasts results in 'a constant increase in revenue per partner,' it has acknowledged that comparatively small regional or local law firms can or perhaps should service smaller clients," the complaint stated. "This is so because such firms typically charge much lower fees than 'white shoe' international law firms like Reed Smith and are therefore more affordable to these smaller clients. However, Reed Smith has inexplicably continued to represent certain much smaller clients which lack substantial financial resources, such as Bair, a not-for-profit charitable foundation."

The foundation's [current] attorney, Bruce C. Fox of Obermayer Rebmann Maxwell & Hippel in Pittsburgh, said no explanation was ever given as to why the fees increased to nearly $1 million. He said his client was "badly taken advantage of."

Fox said he doesn't think large, international firms should represent clients like the Bair Foundation because of global law firms' economic models.

The lawsuit alleges inappropriate billing practices, including over-staffing the case, failing to adequately describe billing entries by subject matter or activity, and raising billing rates without notice.

The Bair Foundation's predicament illustrates two key trends to watch in the legal profession for 2008, as discussed in Robert Denney Associates' 19^th Annual Report on What’s Hot and What's Not in the Legal Profession (hat tip to Tom Kane at The Legal Marketing Blog): Labor and Employment continues to be a hot practice area, and mid-size firms are thriving by "attracting clients faced with the high rates – and often poor service – of the large firms." KJK has 31 lawyers, so I have a stake in this discussion. That stake, however, does not change the fact that the small and mid-size firms have as much to offer, if not more, than the large institutional firms. It's not just a question of hourly rates, but also more economical staffing, increased efficiency, and better client communication, all with the same or better quality of legal work. My hope is that these issues cause companies of all sizes to consider small and mid-sized law firms the next time they are sued in an employment case.

Supreme Court grants cert petition in Huber v. Wal-Mart Stores

Huber v. Wal-Mart Stores poses the following question: if an employer has an established policy to fill vacant job positions with the most qualified applicant, is that employer nevertheless required to reassign a qualified disabled employee to a vacant position even if that disabled employee is not the most qualified person for the job. The Supreme Court has agreed to review the decision of the 8th Circuit, which answered that question in the negative.

Pam Huber worked for Wal-Mart as a dry grocery order filler, earning $13 per hour. A permanent injury to her arm and hand left her unable to perform the essential functions of her job. As a reasonable accommodation for her disability, Huber asked that Wal-Mart reassign her to a vacant and equivalent position. Instead of agreeing to reassignment as the reasonable accomodation, Wal-Mart told Huber that she could apply and compete for the position. Huber ended up not being the most qualified applicant. Wal-Mart hired someone else for the job, and placed Huber in a janitorial position that paid her less than half of what she made before her injury.

Huber filed suit under the ADA, claiming that she should have been reassigned to the open position as a reasonable accommodation. Wal-Mart defended on the ground that it had a legitimate non-discriminatory policy of hiring the most qualified applicant for all job vacancies and was not required to violate that policy to accommodate Huber's disability. In a very rare instance, the trial court granted summary judgment in Huber's favor, which the 8th Circuit reversed.

The 8th Circuit's analysis starts with the general principle that reassignment to a vacant position generally qualifies as a reasonable accommodation under the ADA. According to the 8th Circuit, however, the ADA is not a mandatory preference act, and it should not violate the ADA for an employer to make a legitimate non-discriminatory decision to hire the most qualified candidate, even if it results in a disadvantage to a disabled employee. Also, the ADA does not entitle a disabled employee to his or her preferred accommodation, only a reasonable accommodation. Thus, the 8th Circuit concluded: "The ADA does not require Wal-Mart to turn away a superior applicant for the router position in order to give the position to Huber. To conclude otherwise is affirmative action with a vengeance. That is giving a job to someone solely on the basis of his status a member of a protected class." (internal quotations omitted).

It is unclear in the 6th Circuit how this case would have come out, and there are courts (such as the 10th Circuit) that differ and hold that the ADA requires employers to automatically award an open position to a qualified disabled employee if even better qualified applicant are available and despite an employer's policy to hire the best person for the job.

A ruling for the employee in this case would undermine one of the most important commandments of employment law - Thou shalt hire the most qualified person for all open positions. When you don't hire the best person, it could lead a court to second-guess your judgment and question why a member of a protected class was overlooked in favor of the second/third/fourth/whatever best person. Which illustrates another important principle of employment law - when you're explaining, you're losing.