Update on Ohio Health Families Act

The Columbus Dispatch reports that the Ohio legislature is balking at the Ohio Health Families Act in its current form. The legislature has until May 8 to pass the OHFA. If it does not, Sick Days Ohio, the Union-led coalition of 180 different groups that sponsored the measure, would be entitled to circulate a petition to gather 120,683 signatures to qualify the law for placement on the fall ballot. A recent Columbus Dispatch poll shows that Sick Days Ohio likely would not have much problem obtaining those signatures. According to the poll, 76% of registered Democrats and 45% of registered Republicans favor the OHFA, while only 15% of Democrats and 44% of Republicans oppose it.

This wide bipartisan public support likely means that the OHFA will appear on November's ballot and will probably pass by a comfortable margin. In other words, Ohio's businesses better prepare themselves for the likely prospect of mandatory paid sick leave beginning in 2009.

Rehiring of "boomerang" employees poses unique problems

Raytheon v. Hernandez, decided by the U.S. Supreme Court in 2003, confirmed that an employer may lawfully refuse to rehire a previously terminated employee as long as the refusal is based on a neutral no-rehire policy and not on some protected trait. Today's South Jersey Courier Post talks about the benefits to employers to rehiring former employees who left on good terms, so called "boomerang" employees:

[A]s the marketplace becomes more globally competitive for skilled workers, companies find that it makes perfect sense to rehire former workers.... No longer is it seen as disloyal for an employee to go to another company for career opportunities, and employers are welcoming back former workers with open arms.

In rehiring a former employee, consideration must be paid to whether that specific rehiring decision will make a decision not to rehire another employee appear discriminatory. It may make perfect business sense to rehire one employee and not another, but if the rehired employee is outside a protected class, it may cause the rejection of other former employees to be questioned. If you have a blanket no rehire policy, it is best to either follow it, or be prepared to explain why you chose not to follow it in a specific instance. If you instead choose to rehire ex-employees on a case by case basis, make sure to have a legitimate business reason why one employee's request was granted and not another's.

What else I'm reading this week #22

This week's review starts with a couple of posts that should be of particular interest to Ohio businesses. Kris Dunn, The HR Capitalist, reports that Wal-Mart has overtaken GM as Ohio's largest employer. Meanwhile, The Union-Free Employer details a nasty labor dispute between the Service Employees International Union and the California Nurses Association for the right to organize at Ohio's Mercy Health hospital system.

The big news of the week, though, is hooker-gate in New York. Michael Moore at the Pennsylvania Employment Law Blog draws from Governor Spitzer's crisis some lessons for HR in scandal management .

Philip Gordon, the Workplace Privacy Counsel, has a great post on the problems inherent in dealing with a former employee's damaging web posts about your company.

Sticking with the technology theme, Rush Nigut's Rush on Business gives businesses some lessons in the litigation dangers presented by deleted emails, and Alaska Employment Law talks about the legalities of secret locker room surveillance.

Finally, John Phillips of The Word on Employment Law provides a helpful Q&A on employee handbooks.

Defamation liability in internal investigations?

Jackson v. City of Columbus, decided today by the Ohio Supreme Court, illustrates the importance of being thorough in all internal investigations of employee misconduct, and only disclosing the results of such investigations on a need to know basis.

The Mayor of Columbus asked his Columbus Public Safety Director, Thomas Rice, to conduct an internal investigation of his Police Chief, James Jackson, on allegations of police corruption. In June 1997, Rice presented his report of the investigation to the Mayor and released it to the public. In the report was a statement attributed to Keith Lamar Jones, an inmate at the Chillicothe Correctional Institution, which alleged that Jackson had impregnated a juvenile prostitute. A polygraph conducted during the interview of Jones concluded that he was deceptive during the interview but that his statements about the underage prostitute were not entirely invalid. Following the public release of the report, Jackson filed a defamation suit against the City. Both the trial court and the court of appeals found in the City's favor, in that the comment about the juvenile prostitute was subject to a public interest privilege. The Ohio Supreme Court accepted the case on the issue of whether one "commits defamation by publishing the defamatory statements of a third party when the publisher has a high degree of awareness of the probable falsity of those statements.”

Defamation occurs when a publication contains a false statement "made with some degree of fault, reflecting injuriously on a person’s reputation, or exposing a person to public hatred, contempt, ridicule, shame or disgrace, or affecting a person adversely in his or her trade, business or profession." If a plaintiff makes out a defamation case, a respondent may then invoke a conditional or qualified privilege, which must be supported by "good faith, an interest to be upheld, a statement limited in its scope to this purpose, a proper occasion, and publication in a proper manner and to proper parties only." A qualified privilege may be defeated only if a plaintiff proves with convincing clarity that a publisher acted with actual malice. "Actual malice" is defined as "acting with knowledge that the statements are false or acting with reckless disregard as to their truth or falsity." "reckless disregard", in turn, means that a publisher of defamatory statements acts with a "high degree of awareness of their probable falsity," or when the publisher "in fact entertained serious doubts as to the truth of his publication."

The Ohio Supreme Court decided that the City abused its privilege in reporting that Jackson had impregnated a juvenile. First, the City relied solely on the word of a convicted felon with a history of being a liar, and who had a questionable polygraph result. Secondly, and perhaps more importantly, Rice never interviewed Jackson about the allegation. According to Jackson, had he been asked, Rice would have been told that Jackson had a vasectomy and could not have impregnated anyone.

Before you conclude that the Jackson case doesn't apply to your business, consider that it teaches some general lessons on the handling of all internal investigations. Ohio court have held that employers enjoy a qualified privilege to disclose the results of internal investigations. See Lennon v. Cuyahoga Cty. Juvenile Court; Blatnik v. Avery Dennison Corp. When conducting internal investigations into allegations of sexual harassment or other employee misconduct, Jackson highlights a couple of important points.

• Consider your source. Who is providing certain information is as important as the information that is provided. Do not take what a witness says at face value without taking into consideration the witness's credibility. Does the witness have history of truthfulness? Does the witness have something to gain in the outcome, such as a promotion if another employee is terminated? Is the witness biased towards either the victim or accused? These questions are important in determining how much weight to give to a witness's statements, if any at all.
• Only disclose to those who need to know. Confidentiality is key in any internal investigation, even more so if the allegations are as devastating as sex with an underage prostitute. The more widely you disclose the fruits of any investigation, the more you open yourself up to a claim that you have abused the qualified privilege. The best practice is to limit the sphere of knowledge to those who absolutely need to know, and further limit what is told to those who need to know. How much information to disclose and to whom is largely a judgment call, but as a rule of thumb less is better.

Ohio Senate proposes ban on sexual orientation discrimination

Senate Bill 305, introduced in the Ohio Senate yesterday, would include "sexual orientation" in the list of protected classes against which it is illegal for employers to discriminate. It defines sexual orientation as "heterosexuality, homosexuality, bisexuality, asexuality, or transgenderism, whether actual or perceived." According to today's Cleveland Plain Dealer, if S.B. 305 passes, Ohio would become the 22nd state to ban this type of discrimination. The Plain Dealer also points out that only one Republican crossed party lines to sponsor the bill, which does not bode well for its ultimate fate.

While this blog is unabashedly slanted in the employer's favor, I come down on the side of the employee on the issue of sexual orientation discrimination. As I've said here before, is difficult to argue, in 2008, that it is acceptable to condone intentional discrimination of an innate characteristic such as sexual orientation. I also understand, however, the impracticalities of extending the same protections to gender identity. A company should not be forced to accept a man dressed in drag (for example) if that is not the image its wants to project, or if it think such an image will harm its bottom line by driving away business or customers.

Revisiting the facebooking of job applicants

Several months ago I wrote about basing personnel decisions on an applicant's or employee's off-work online activities. Today, three articles on this same topic came across my screen that make this topic worth revisiting: Do Employers Using Facebook for Background Checks Face Legal Risks?; Facebook a risky tool for background checks, lawyers warn; and Employers may be searching applicants' Facebook profiles, experts warn.

These articles predict indefensible discrimination lawsuits and general gloom and doom for employers who use Facebook, MySpace, YouTube, etc., to conduct background checks on job applicants. They suggest that companies are unnecessarily risking liability in a landscape that is uncertain until courts are asked to lay down some rules on these issues.

What is going on here? I'm the first person to tell companies not to be the test case for emerging HR practices, and to let others blaze the trail by defending the inevitable lawsuits. I just can't see how a company can face liability if it non-discriminatorily looks for information on job applicants on the web. People put this information in the public domain for anyone and everyone to see. It's one thing if employers use Internet searches to pre-screen job applicants before the interview process. That's a big no-no, for the same reason we no longer ask job applicants to submit photos -- it reveals demographic information that an employer could use to screen out certain minorities, genders, and other protected groups. Once a company decides to consider an applicant and actually meets the person, those concerns disappear.

A couple of helpful pointers for companies to consider. As with all personnel practices, it is best to have a written policy for supervisors, managers, and others involved in the hiring process to follow. That policy should make clear that Internet sources cannot be checked until after a job applicant has been interviewed, and that if a search is going to be conducted for one applicant for a position, it must be done for all. It also not a bad idea to put a disclaimer somewhere on the job application stating that publicly available Internet sources may be checked post-interview as part of consideration process.

Today's schadenfreude moment

Schadenfreude is a German word meaning, "happiness in the misfortune of others." I'm certain a feeling of schadenfreude has settled in all over Wall Street this morning, given yesterday's news about the Governor of New York.

Today's question: What do the Governor of New York and an Iowa casino worker have in common? Apparently, love for paid companionship. From the Des Moines Register comes this story of a casino employee terminated for attempting to buy a prostitute on his employer's dime.

Neil Jorgensen, 62, of Kalona worked at the Riverside Casino and Gold Resort south of Iowa City until last November. He was fired after he was given a $100 Riverside gift certificate and a free night's stay at the casino hotel in recognition of a year's employment with the company. He used the gift certificate and free night's stay on the night of Nov. 28.

"I went to Ruthie's, the nice steakhouse within the casino, and I had a cosmopolitan or two and a bottle of wine and a really good dinner," Jorgensen testified at a recent state hearing dealing with his request for unemployment benefits.

He said he went to his hotel room about midnight and called hotel managers for help in figuring out how to order an adult movie. An hour later, he said, he called the managers again "and asked for a hooker." After the managers refused to help procure a prostitute for him, Jorgensen called someone at the adjacent resort and made the same request.

The casino's human resources director, Tim Donovan, testified that hotel workers were then sent to Jorgensen's room to insist that he stop calling for prostitutes.

"When the hotel supervisor knocked on the door, Mr. Jorgensen answered the door in the nude," Donovan testified. Jorgensen was fired the next day.

Undeterred by his termination, Jorgensen filed for unemployment. At his hearing, he offered 6 different defenses for his misconduct, ranging from pedestrian to hilarious:

• "The advertisement is that it's just like Las Vegas, so I thought I was in Las Vegas."
• The casino employs a dual standard because "gamblers have been allowed to continue gambling after they've urinated on the blackjack table standing in full public view."
• That his actions had no detrimental effect on the casino.
• That just prior to his termination, he had received an "excellent" performance review.
• That the casino "overserved" him, which caused him to be "absolutely plowed."
• Finally, Jorgensen claimed that his requests for a prostitute were part of "an off-the-wall surveillance" test.

I could draw some great moral lessons here, or tell you that an employee who tries to hire a hooker on the company's dime should be fired ASAP, no questions asked. The reality, though, is that this story just made me laugh, especially in light of what happened in New York yesterday.

[Hat tip: Manpower Employment Blawg]