Fired for not smoking

Hopefully everyone is aware that Ohio is a smoke-free state. With limited exceptions, it is illegal to smoke in any workplace within the state. Just this week, the City of North Royalton has gone one step further by banning smoking in city parks and recreation areas. For those who are interested, Wikipedia has a current list of all smoking bans around the country.

Life at Work, an excellent blog written by New Zealand employment lawyer Andrew Scott-Howman, has a story that illustrates the dramatic differences on this issue between the U.S. and parts of Europe:

The owner of a small company in Germany fired three workers because they were not smokers. It seems that their boss (evidently a smoker himself) felt that they were "disturbing the peace" in the workplace by being vocal about their smoking colleagues. "I can't be bothered with trouble-makers," said the boss. "We're on the phone all the time and it's just easier to work while smoking. Everyone picks on smokers these days. It's time for revenge. I'm only going to hire smokers from now on."

Under Ohio's SmokeFree Workplace Act, the German employer would almost certainly be liable for the terminations. The SmokeFree Workplace Act, makes it illegal for any employer to "discharge, refuse to hire, or in any manner retaliate against an individual for exercising any right, including reporting a violation, or performing any obligation under this chapter." One such right employees enjoy is the right to demand that a co-worker stop smoking.

As an aside, it's generally a bad idea to justify any workplace action as "revenge."

Companies should consider putting these anti-retaliation guarantees into their smoke-free workplace policies. If you don't have such a policy in place, give serious thought to having one drafted for you.

[Hat tip: Workplace Prof Blog]

Employment of teenagers brings new harassment headaches for employers

[A]n employer can avoid liability under Title VII for harassment (on a ground, such as sex, that constitutes a form of discrimination that the statute forbids) of one of his employees by another by creating a reasonable mechanism by which the victim of the harassment can complain to the company and get relief but which the victim failed to activate....

The mechanism must be reasonable and what is reasonable depends on "the employment circumstances," ... and therefore, among other things, on the capabilities of the class of employees in question. If they cannot speak English, explaining the complaint procedure to them only in English would not be reasonable. In this case the employees who needed to be able to activate the complaint procedure were teenage girls working in a small retail outlet....

An employer is not required to tailor its complaint procedures to the competence of each individual employee. But it is part of V & J’s business plan to employ teenagers, part-time workers often working for the first time. Knowing that it has many teenage employees, the company was obligated to suit its procedures to the understanding of the average teenager.

Such was the guidance given by the Court in EEOC v. V & J Foods, a case that involved allegations of sexual harassment by a teenage fast food employee. The key takeaway from this case is that there is no one-size-fits-all harassment policy. Policies must be tailored to the workforce, and differences in English proficiency, education level, and age could make for different policies, not in content but in language. The policy must be written so that the lowest common denominator in your workforce understands it and can use it.

The latter category, age, is especially important this time of year as we enter the summer hiring season. The ABA Journal points out that teen EEOC sexual harassment charges have risen 8%, while overall sexual harassment charges have actually fallen 15%.

Whether or not a company employees teenagers, these issues illustrate the importance of reviewing current sexual harassment policies for clarity and understanding. It is not enough to assume that all of your workers will understand the mechanisms that you have put in place for employees to make harassment complaints. The problem, however, is that a company might not know that its mechanisms have failed until it is sued. To combat these problems, companies should consider the following:

1. Including provisions in harassment policies that require employees to contact a supervisor, manager, HR, or someone else in a position of authority at the company if they don't understand the policy.
2. Creating multiple avenues for employees to make complaints - such as a phone number, email address, and more than one specific person within the company.
3. Placing the onus on the employee to keep complaining if they don't get a response from the company.

Taken together, these suggestions will make it harder for an employee to claim she did not understand the policy, she did not know who to complaint to, she did not feel comfortable with the person designated to receive the complaint, or that her complaint was ignored.

Why I'm a management-side lawyer

In responding to my piece from yesterday on Colorado's just cause initiative, Professor Paul Secunda at the Workplace Prof Blog had this to say:

I don't believe that employers only fire employees usually for good reasons. I guess that is why Jon is still a management attorney and I no longer am.

Paul's comment got me thinking -- why am I a management attorney? Let me try to answer it this way.

I'm not so naive to think that businesses only fire people for good reasons. Companies fire people for lots of reasons -- good, indifferent, and unlawful. In a perfect world, discrimination, retaliation, and harassment wouldn't exist. But they do, and companies, even those with the best of intentions, run afoul of the complexities of our myriad employment laws. Every lawsuit, administrative charge, and internal complaint is an opportunity for a company to learn from a mistake, whether legal or inter-personal. It's an opportunity to train employers how to handle an employee relations problem better the next time.

I say that mistakes can be legal or interpersonal because lawsuits don't necessarily happen because an employee was discriminated against. Lawsuits happen because people feel disrespected, unappreciated, or that they were just plain treated unfairly. It's my job to make sure that employers understand this dynamic. When that dynamic fails, it's my job to help employers get it right the next time.

In a perfect world, I'd never get a call that a client has been sued. In a perfect world, companies would call me once a year to give their HR practices a full review for compliance with the latest and greatest laws and court decisions. In a perfect world, companies would budget for proactive help, and understand that a small amount of legal fees spent upfront would save a mess of headaches and a huge legal bill later. Life, however, is far from perfect, and often I am only called when the summons arrives. While I love the thrill of the battle that litigation presents, it's the satisfaction I get from helping clients fix their problems so that they get it right the next time that motivates me to do my job everyday.

Protecting employment at-will

At-will employment is one of the hallmarks of American employment law. "Under the employment at will doctrine, either party to an employment relationship may terminate the employment at any time, with or without cause, for any legal reason or for no reason at all." Craddock v. Flood Co. One notable exception to this general rule are terminations that violate the discrimination laws. Others include terminations that breach express or implied contracts, or terminations that violate public policy. The touchstone of at-will employment is that an employer does not need just cause to terminate an employee.

In Colorado, labor unions are trying to change the rules. The Rocky Mountain News reports that a coalition backed by labor organizations is trying to get a constitutional amendment on the November ballot that would eliminate Colorado's at-will employment system and require just cause for all terminations. Under this "just cause" initiative, employers would be restricted from firing or suspending an employee unless the employer can prove incompetence, policy violations, willful misconduct, conviction of a crime involving "moral turpitude," employer bankruptcy, or economic circumstances that provide for layoffs of 10% of the workforce.

This measure is exactly the type that could gain popular support, and would alter the landscape of employer/employee relations in this country if it catches hold. It's not so much that it will restrict reasons for termination, although that would be a problem. Most businesses (or at least those that want to retain good employees) do not terminate arbitrarily, but only for a good reason. This law would put a premium on having well-defined employment policies on which employers could hang a "for cause" termination. The more troubling aspect of this proposal is that it places the burden on employers to prove just cause, as opposed to employees to prove that a termination was not justified. In the typical employment case, proving unlawfulness (such as discrimination) falls on the employee. If this law passes, terminations will be presumed unlawful unless the employer can prove otherwise. For the sake of businesses everywhere, let's hope that this proposal dies a quick legislative death, and does not catch on and begin to spread. [Hat tip: Point of Law]

What else I'm reading this week #26

As you're reading this, I'm hopefully sitting poolside with my family in Vero Beach, Florida. Until I'm back next week, probably more burned than tanned, but nevertheless rested, enjoy the latest and greatest from around the blogosphere.

John Phillips of The Word on Employment Law brings us an important tip on over-documentation. Artificially creating a paper trail to trap an employee could be just as dangerous to a company as failing to document legitimate performance problems.

Lou Michaels from Suits in the Workplace reports that the EEOC is telling people it will start treating "no rehire" clauses in settlement agreements as retaliatory. This treatment will put employers in the precarious position of accepting the former employee back or facing a claim that the failure to hire was the result of the prior discrimination charge. As Lou astutely points out: "The fact that the employee is willing to return to the workforce notwithstanding her earlier claim that it was a hostile environment, managed by racists, sexists, or discriminates against the elderly, casts more than a little doubt on the veracity of the original charge, but the Commission seems to ignore this."

Mark Toth, at the Manpower Employment Blawg, provides some insight into a recent large settlement between the EEOC and Dillard's Department Store over the propriety of transferring an alleged sexual harasser to a different store in response to a complaint at the prior store.

BLR's HR Daily Advisor gives some tips on how to best handle the dirty job of terminating an employee.

Finally, Law.com has a bit on a topic I've covered a lot lately, bullying bosses.

Deconstructing race, ethnicity, and national origin

Even though this blog is called the Ohio Employer's Law Blog, I often write about issues that come up outside of Ohio because I think they will be of interest to Ohio businesses. Abdullahi v. Prada, decided recently by the 7th Circuit, is one such issue. It discusses the similarities and differences between race, nationality, and ethnicity, how they are often intertwined in employment discrimination issues, and the linguistic tightrope we often walk in trying to distinguish among them.

Race, nationality, and ethnicity are sometimes correlated, but they are not synonyms. A racial group as the term is generally used in the United States today is a group having a common ancestry and distinct physical traits. The largest groups are whites, blacks, and East Asians. Iran is a country, not a race, and an "Iranian" is simply a native of Iran. Iranians and other Central Asians are generally regarded as "white," whatever their actual skin color; many Indians, for example, are dark. Some Central Asians are indistinguishable in appearance from Europeans, or from Americans whose ancestors came from Europe, while others (besides Indians), for example Saudi Arabians, would rarely be mistaken for Europeans. Some Iranians, especially if they speak English with an Iranian accent, might, though not dark-skinned, strike some Americans as sufficiently different looking and sounding from the average American of European ancestry to provoke the kind of hostility associated with racism. Yet hostility to an Iranian might instead be based on the fact that Iran is regarded as an enemy of the United States, though most immigrants to the United States from Iran are not friends of the current regime.

Because of the intrinsic similarities between these three concepts, the plaintiff was not precluded from suing her employer for "race" discrimination, even though in her administrative charge she had only checked the boxes for "national origin" and "religion".

[Hat tip: Workplace Prof Blog]

Butt painter settles wrongful discharge lawsuit

In the update that I know everyone's been waiting for, Stephen Murmer, the Virginia high school art teacher terminated after school officials learned he moonlighted by creating paintings using his bare buttocks as a brush, has settled his wrongful discharge lawsuit on the eve of trial. [See Butt painter's lawsuit to go to trial].

You may be asking yourself, what was his claim worth? $65,000. Unreal. We can all sleep easier knowing justice has been served.

[Hat tip: Lowering the Bar]