What I'm reading this week #33

The Delaware Employment Law Blog has been posting at a voracious clip. My favorite post of theirs from this week is The 5 Medical Conditions That Employers Don’t Want to See in a Candidate. For those that are too lazy to click over, the post talks about an article from Philly Burbs, which writes that employers avoid hiring anyone with obesity, depression, hypertension, high cholesterol, or musculoskeletal disorders. Let me put this as gently as possible -- unless you want to get sued, DO NOT consider any of the latter four, and tread very lightly if you are going to consider obesity, as a criteria for employability.

Meanwhile, Dan Schwartz at the Connecticut Employment Law Blog gives some useful information on how to properly draft severance agreements for releases of federal age discrimination claims.

The Pennsylvania Labor & Employment Blog asks whether companies can fire employees for personal postings on-line (personal blogs, MySpace pages, etc.). For my thoughts on this topic from late last year, take a look at Can employers base employment decisions on employees' personal internet activities?.

BLR's HR Daily Advisor gives some pros and cons for written job descriptions.

The aptly named Labor and Employment Law Blog lists 10 tips for avoiding IRS problems with independent contractors. I've also written before on some of the special consideration that companies must take into account when retaining independent contractors, in Court confirms that independent contractors can be discriminated against.

Carnival of HR #34 is available

Michael Moore's Pennsylvania Labor & Employment Blog is hosting this fortnight's Carnival of HR, the 34th edition, which is now available.

Ohio legislature considers permitting weapons in cars

Yesterday, the Ohio House passed a bill that would allow legal gun owners to carry their weapon in a car. Today's Cleveland Plain Dealer reports that the Senate is expected to follow suit, and Governor Strickland is expected to sign this measure into law.

The bill both allows people with a license to carry guns in parking garages, and prohibits landlords from barring tenants from owning or carrying guns. One question that remains unclear is whether employers will be able to prohibit employees from keeping guns parked cars. Employers can lawfully prohibit guns from entering the workplace. An employee's ability to store a weapon in his glove box will have significant implications on workplace violence issues.

While Ohio has permitted the concealed carry of handguns for more than 4 years, employers can still lawfully prohibit guns (and other weapons) from entering the workplace. Under the current concealed carry law, employers also can prohibit guns in vehicles parked on the business' property. It remains to be seen if the proposed revisions affect this latter restriction.

As the Ohio Senate takes up this law for consideration, let me suggest that it takes the effort to make it very clear that businesses can still choose to prohibit the transportation of firearms onto their property in vehicles. Otherwise, we might be left with ambiguities that could cause confusion.

Is it possible that one-fifth of companies violate the FMLA?

If you believe a headline from yesterday's Cleveland Plain Dealer, 20% of employers violate the FMLA. Or, at least that is what a recent study conducted by the Families and Work Institute concluded:

"There are so many reasons you could imagine an employer not complying," said Kate Kahan, director of work and family programs for the National Partnership for Women and Families. "The bottom line is the same, which is the employee loses out. This is such basic protection that it's horrible." ...

When employees are shortchanged, researchers and employment lawyers said, a combination of factors is usually to blame.

The troubled economy may discourage workers from challenging policies that deny them the full leave, said Ellen Galinsky, president of the Families and Work Institute. It's rare that the Labor Department independently investigates leave compliance; usually, an employee must file a complaint or lawsuit.

Employers may not know about the 15-year-old Family and Medical Leave Act, or they may not properly understand it, Galinsky and others said. The law applies to any employer with 50 or more workers in one area.

"I really don't think there's a law out there that is more confusing and causes more problems for employers than Family Leave," said Richard Meneghello, a partner in the Portland, Ore., office of Fisher & Phillips, a national employment law firm. He expressed surprise that the noncompliance rate wasn't higher than the report's 20 percent.

A full copy of the report by the Families and Work Institute is available for download: 2008 National Study of Employers (NSE).

Department of Labor spokesperson Dolline Hatchett disagrees with the report: "We know of no independent verification of their number. Compliance rates are hard to verify without sophisticated sampling techniques, and there is insufficient data in their analysis to allow one to assess an employer's compliance with the law."

Whether true or not, one thing is certain - managing FMLA leave programs is one of the most difficult tasks facing HR professionals and other management. The FMLA has layers upon layers of requirements that must be followed, both in determining whether one is eligible for leave, in certifying and granting the leave, and in administering the leave and eventual return to work. These protocols become exponentially more complicated when an employee takes leave intermittently instead contiguously. Even for those employers who think they are comfortable with the FMLA, earlier this year the Department of Labor published its proposed new FMLA regulations, adding 477 pages of new and amended responsibilities.

Nevertheless, this study points out one truism, not only about the FMLA but employment law in general. Education is crucial. There are a wealth of seminars available all over the country on every employment law issue imaginable. If your organization is big enough, consider bringing in a lawyer to do some specialized training sessions for your personnel. And, most importantly, when in doubt pick up the phone and call someone who can give you an answer to your question. Ignorance is not an excuse if a company violates the FMLA or any other employment law.

Supreme Court issues 2 decisions expanding scope of retaliation claims

Last December, I asked the question, "How far to the right has the Supreme Court swung?" This morning, the U.S. Supreme Court issued 2 decisions that suggest that it might not have gone as far to the right as first thought. Each of today's cases expands the scope of retaliation claims under federal employment discrimination statutes. In each case, the Court went beyond the plain language of the statutes to find a retaliation claim.

In CBOCS West, Inc. v. Humphries, the Court ruled 7-2 (with Justices Thomas and Scalia dissenting) that 42 U.S.C. 1981 permits a claim for retaliation when an employee complains of race discrimination.

In Gomez-Perez v. Potter, the Court ruled 6-3 (with Chief Justice Roberts, and again, Justices Thomas and Scalia, dissenting) that the ADEA prohibits federal employers, as opposed to private employers, from retaliating against employees who file complaints alleging age discrimination.

What is interesting about both of these decisions is that neither section 1981 nor the amendments to the ADEA that impose federal sector liability include the word "retaliate." Nevertheless, the Court has read that word into the meaning of the statutes by finding that "discrimination based on race/age" necessarily encompasses retaliation.

These opinions will have little impact on employers in Ohio. Unless you are the federal government, Gomez-Perez v. Potter will not affect you at all.

CBOCS West, Inc. v. Humphries will have limited practical impact for Ohio employers. Because of this case, it is now clear that an employee can bring a race retaliation claim without first filing a charge of discrimination with the EEOC under Title VII. Of course, this is already the case in Ohio under R.C. 4112.99. Moreover, claims under 42 U.S.C. 1981 are subject to a 4-year statute of limitations, 2 years shorter than the time period an employee has to bring a state law retaliation claim under 4112.99.

What is important to Ohio businesses from these cases is that they continue to demonstrate that the Roberts Court may not be as pro-employer as one might have hoped. Under Chief Justice Roberts, pro-employee decisions are out-pacing pro-employer decisions at a 2-1 clip. Several more employment cases are on the Court's docket, including the important issue of whether Title VII's retaliation provision protects 3rd parties who participate in an internal investigation without a pending EEOC charge. The direction of the Court's employment law pendulum is very much in play, and will continue to swing as these decisions are handed down.

Ohio Supreme Court permits 3rd party discovery by employers in OCRC investigations

Often times, companies have to respond to administrative discrimination complaints in a vacuum. They have a vague understanding of the allegations based on the few sentences in the charge form, and are limited to the information in their own files and records. Companies rarely if ever have access to the OCRC's own materials, and discovery is not part of the process. In State ex rel. Am. Legion Post 25 v. Ohio Civ. Rights Comm., the Ohio Supreme Court opened the door to a whole new world of information to assist employers in defending against charges of discrimination, and held that at an employer's request the Ohio Civil Rights Commission must issue a subpoena during a preliminary investigation of an administrative complaint.

If you have been lucky to have never been part of an OCRC investigation, let me give you a quick summary of the process. Upon receipt of a complaint alleging discriminatory conduct, the Commission conducts a preliminary investigation into the allegations. The Commission's function during this first step is to discover evidence to determine if it is probable that an unlawful discriminatory practice has occurred. If the Commission determines there is no probable cause, it will dismiss the Charge. At that point, the employee has three options: 1) walk away; 2) appeal the dismissal to common pleas court; or 3) file a civil action under 4112.99. On the other hand, if the Commission finds probable cause, it will attempt to eliminate the discriminatory practice through conciliation. If conciliation fails, the Commission will issue a formal complaint prosecuted by the Attorney General's office at a formal hearing.

State ex rel. Am. Legion Post 25 v. Ohio Civ. Rights Comm. concerns the first step in this process -- the preliminary investigation. Carol Van Slyke, the charging party, filed a complaint with the OCRC against the American Legion Post 25 claiming that its executive director had sexually harassed her and fired her in retaliation for complaining about it. When contacted by the commission, the Legion explained that it had fired Van Slyke shortly after receiving an anonymous letter that she was a felony offender. During the investigation, the Legion requested, by letter from its attorney, that the OCRC issue a subpoena on its behalf compelling the production of information about her felony conviction. The Commission refused to issue the requested subpoena. The Commission did, however, during the investigatory phase, issue a subpoena on its own behalf for the same information. Because the information became the Commission's work product, the Legion was not permitted to review it. After the Commission issued a probably cause determination, the Legion filed suit to compel the OCRC to issue the requested subpoena.

In ruling that the Legion had a clear right to the issuance of the requested subpoena, the Court relied upon the plain language of R.C. 4112.04(B)(3)(b), which provides:

Upon written application by a respondent, the commission shall issue subpoenas in its name to the same extent and subject to the same limitations as subpoenas issued by the commission.

This decision provides employers with an important weapon in defending against OCRC complaints. Often times, employers are shooting in the dark responding to administrative charges. This case enables employers to defend charges on a much more level playing field by preventing the OCRC from limiting employer's access to factual information by hiding behind its curtain of agency work product. This tool is important for two reasons. First, and more obviously, it will enable employers to more efficiently gather key information at an earlier stage in the process to help get more charges dismissed as early as possible. Secondly, and perhaps more importantly, better access to information will limit unintentional misstatements by employers that a plaintiff could use against them in subsequent litigation.

No company wants to defend an OCRC charge. State ex rel. Am. Legion Post 25 v. Ohio Civ. Rights Comm., however, makes the process a little more palatable.

What I'm reading this week #32

The post of the week is from HR World, and comes in anticipation of next week's season finale of the best show on TV, Lost: 10 Things Every Manager Should Learn from "LOST".

I've recently discovered the Delaware Employment Law Blog, another excellent employment law resource, which this week gives us some thinking points for what it considers the top 5 wage and hour issues facing employers.

The Labor and Employment Law Blog also writes on a hot topic in wage and hour law, how to properly handle unpaid internships.

Staying on the topic of wage and hour laws, The Business of Management asks if the $100,000-a-year employee really deserves to be paid an overtime premium.

Michael Moore, who recently relaunched his blog as the Pennsylvania Labor & Employment Blog, provides his thoughts on an issue that more and more people may take to heart with gas prices passing $4 a gallon, telecommuting. If I can digress for a minute, when I started law school, I paid $.90 a gallon (now I sound like my grandparents talking about 5 cent movies). Last night, I waiting in a line 3 cars deep across 8 pumps to pay $3.76, which was more than 20 cents lower than any other gas station I've seen.

The Laconic Law Blog has some helpful pointers on properly handling severance pay.

Another recently launched blog, Nolo's Employment Law Blog, reports on the Families and Work Institute's study on work-life issues (such as job flexibility, time off, and health and retirement benefits). Despite all of the ink spilled about the importance of work-life balance to today's employees, the study found that not much has changed in terms of benefits employers have offered in the last 10 years. One clear trend is that employers are shifting more of the cost of these benefits to employees. For example, 16% of employers provide maternity leave with full pay, compared to 27% ten years ago. Also, only 4% of employers pay the full cost of family health coverage, compared to 13% ten years ago.

Finally, the Connecticut Employment Law Blog gives its take on handling anonymous workplace complaints.