Courts sets boundary on associational discrimination claims

Recall in Thompson v. North Am. Stainless, the 6th Circuit recognized a claim for associational retaliation, and held that "Title VII prohibit[s] employers from taking retaliatory action against employees not directly involved in protected activity, but who are so closely related to or associated with those who are directly involved, that it is clear that the protected activity motivated the employer's action."

At the time, I questioned the practical application of the Thompson decision by asking, "How close is close enough?"

In Thompson, the relationship was a fiancee. It is safe to assume liability will also extend to action taken against spouses. What about boyfriends and girlfriends? How long do you have to date to be protected from retaliation? The same protection also will probably extend to parents and children. What about siblings? Grandparents? Cousins? 3rd cousins twice removed? In-laws? Friends? Carpoolers? The people you share your lunch table with? The person you sat next to in 3rd grade? How close is close enough for an employer to intend for its actions to punish the exercise of protected activity? Do employers now have to ask for family trees and class pictures as part of the orientation process?

Last month, the United States District Court for the District of Oregon, in EEOC v. Qwest Corporation, gave us some clarity on how close is close enough to support an associational discrimination claim. In that court's view, the law requires something more than just a friendship:

To maintain a claim of discrimination or harassment based on her association with a black person, plaintiff must show the existence of an association. The law requires something more than mere work-related friendship. There must be a significant connection between the plaintiff and the non-white person.

While I was writing tongue-in-cheek when I asked whether carpool buddies would be able to bring an associational retaliation claim under Thompson, it is refreshing to see a court take a practical look at this type of case and reject an associational claim made by a friend. As we try to figure out the limits of Thompson, these types of decisions are certainly worth following.

[Hat tip: Manpower Employment Blawg]

Just because paid family leave is a popular issue does not mean it is good for Ohio

Ohioans for Healthy Families, the union-backed group behind the Ohio Health Families Act, continues to try to gather enough signatures to have the OHFA placed on the November ballot. According to a May 28, 2008, press release by Ohioans for Healthy Families, the organization has:

already gathered over 50,000 new petition signatures and, with over 70% of Ohioans supporting paid sick day legislation, have no doubt whatsoever that we will be able to gather the number needed to put it on the November ballot. Personally, I think anyone running for legislative office this year while opposing paid sick days is playing political Russian roulette.

By law, if the Coalition gathers an additional 120,683 signatures by August 6, the Ohio Healthy Families Act will appear on the November ballot.
A poll on MSNBC.com of over 10,000 people reveals that only 28% oppose government mandated paid family leave. Further, as the MSNBC article points out, the United States severely lags behind most of the civilized world (and even some of the third world) on paid family leave benefits. The issue isn't whether paid family leave is a good idea or a bad idea. The issue is whether the Ohio Health Families Act, as written, is good for Ohio businesses, which it is not.
Separate and apart from the myriad ambiguities and other drafting problems in the legislation, which I've discussed before (see Deconstructing the Ohio Healthy Families Act), Ohio simply does not need to be on the forefront of this issue. Only three states (California, Washington, and New Jersey) currently require paid family leave. Nothing about becoming the 4h state to join this movement will make Ohio a more attractive business climate. We should be passing legislation to draw companies to Ohio, not drive them away.
There will come a time when paid leave will be a reality for all but the smallest of businesses in this country. If Obama wins in November, I expect that time to come in the next 4 years. Assuming that the OHFA makes the November ballot, Ohio voters will have to look past their own self interests and consider the greater good of the state. Is it more important to have a few days of paid medical leave per employee, or have more businesses choose to call Ohio home, which creates more jobs and less of a tax strain for everyone?

Accuracy of background checks poses potential problem for employers

Business Week magazine this week is running a story on the lack of accuracy in credit reports. The article claims that inaccuracies are a huge problem in the background checking industry, and gives a few heart-wrenching anecdotal examples to support the allegation. Dan Schwartz, at the Connecticut Employment Law Blog, has done the math, however, and estimates that only 0.000023 percent of all background checks end up in a complaint being filed with the Federal Trade Commission. Dan's conclusion: "Are there issues with faulty records on some? Absolutely. But the numbers presented in this article hardly suggests a rampant problem with background checks."

It's the faulty records, however, that present the biggest risks to employers. Third party background checks by employers on current or prospective employees are governed by the federal Fair Credit Reporting Act ("FCRA"). It has very stringent requirements employers must comply with before obtaining or using a background check from a third party:

1. The employer must first disclose to the employee or applicant that a background check will be done and receive written consent.
2. The employer must then certify to the consumer reporting agency that it made the disclosure and has obtained written consent. An agency that does not ask for this certification, or provides a background check in its absence, should be a huge red flag about its credibility and the credibility of the information provided.
3. Finally, if you are going to take an adverse action based on information disclosed in the background check (such as not hiring someone), you must first provide the applicant or employee with a copy of the report you received along with a copy of the person's rights under the FCRA (available directly from the FTC). An employer must then wait a reasonable period of time (5 business days) before actually taking the adverse action, at which time the applicant or employee must be provided with an adverse action letter under the FCRA.

Any one of these steps can cause potential liability issues for an employer, but the only risk of any real damages stems from using an inaccurate report. Let's say, for example, a company violates the statute, but in the process learns of an applicant's bona fide criminal history. That history automatically disqualifies the person from consideration. Even though the statute has been technically violated, how has the person been harmed by not being hired for a job he or she was not qualified for in the first place? If, however, the criminal history was faulty (for example, the person was the victim of identity theft), and he or she is disqualified without having the opportunity to dispute the inaccuracy, that violation of the FCRA could open a company up to the fully panoply of employment-related damages.

Just because FCRA is seldom enforced does not mean that it should be ignored. Compliance is relatively simple, and failing to comply is an unnecessary risk for businesses to take.

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.