Blawg Review reminder

Just a quick reminder that I'll be hosting Blawg Review #172 this coming Monday, August 11. If you would like me to consider one of your posts for inclusion, or if you have a post that you've come across this week that you'd like to recommend, please follow this link to Blawg Review and for the submission guidelines.

Will the Healthy Families Act prohibit fraud?

A commenter took me to task for yesterday's post, in which I argued that under the proposed Healthy Families Act employees committing fraud by taking illegitimate time off work could hide behind the law to protect their jobs. To support his/her point, the commenter relied upon Vail v. Raybestos Products Co., an FMLA decision out of the 7th Circuit.

In that case, Diana Vail was terminated while out on FMLA leave. Vail claimed to suffer from migraine headaches, that would come upon her shortly before her scheduled shift at Raybestos. Between May and September 2005, she took more than 33 days of approved leave. Her supervisor became suspicious, hired an off-duty cop to tail her, discovered that she was helping her husband's lawn mowing business while on FMLA leave, and terminated her. The Court correctly rejected her FMLA interference claim:

An employer can defeat an interference claim by showing, among other things, that the employee did not take leave "for the intended purpose." ... We have interpreted this to mean that an employer has not violated the FMLA if it refused to reinstate the employee based on an "honest suspicion" that the she was abusing her leave. ...

Though the use of an off-duty police officer to follow an employee on leave may not be preferred employer behavior, employers have certainly gone further than Raybestos. ... In any event, the information gleaned from Sergeant Largent's reconnaissance was sufficient to give Raybestos an "honest suspicion" that Vail was not using her leave "for the intended purpose." Vail had taken medical leave for her October 6, 2005 evening shift. The next morning, the off-duty police officer saw Vail working for her husband's lawn-mowing business. Raybestos received this information after it already suspected that Vail was gaming her leave in order to work for her husband's business. So when it heard information consistent with what they suspected she was doing while on leave, Raybestos decided to terminate her. ... Raybestos did not violate Vail’s rights under the FMLA.

The Vail case, however, is vastly different than the example I discussed yesterday, which focused on systematic audits by employers of employees' use of sick time. No one would reasonably argue that an employer cannot legitimately investigate a specific employee that in good faith it suspects of committing fraud. However, the Healthy Families Act very well might prohibit more general investigations that may catch crooked employees in its dragnet.

Section 4114.10(B) of the proposed Health Families Act states: "No employer shall interfere with, restrain, or deny the exercise of or the attempted exercise of any right provided in this Act." It will be up to the courts to interpret what this section means, but employee advocates will certainly argue that blanket investigations of employees' use of sick time could interfere with or restrain employees' use of sick time. If an employee thinks that he or she could be terminated if an employer investigation determines that a sick day was improvidently taken, that employee might be less likely to use sick days at all. Thus, one could conclude that generalized investigations violate section 4114.10(B).

Any statute that could be construed to inhibit an employer's ability to investigate and catch employee fraud is a poorly conceived and drafted statute. This is yet another reason why the Healthy Families Act is bad for Ohio businesses.

Healthy Families Act appears headed to November ballot

The Cleveland Plain Dealer is reporting that Ohioans for Healthy Families has submitted to the Secretary of State double the number of signatures needs to place the Healthy Families Act on the November ballot. The battle lines are being drawn between supporters of the ballot initiative and Ohioans to Protect Jobs and Fair Benefits, a coalition of businesses that opposes the initiative as bad for Ohio businesses. Governor Strickland continues to seek a compromise to keep this job-killing measure off the ballot. Ohioans to Protect Jobs and Fair Benefits, however, rightly believes that a compromise is impossible: "The premise of this proposal - to require a costly state-imposed employee benefit that no other state now requires - is unacceptable on its face."

Meanwhile, another story in this morning's Plain Dealer illustrates one of the key problems with the Healthy Families Act. It seems that Cleveland has been spot-checking its safety employees' use of sick time:

For the past 18 months, EMS and firefighter supervisors haven't just been rushing to fires or medical emergencies, they've also been checking up on employees who called in sick.

The checks are done when more than five call off on any day or when people use sick days around holidays and vacations. Employees who don't answer the door when supervisors knock must produce a note or other proof that they visited the doctor or pharmacy or face discipline.

Last week, EMS began pre-discipline hearings for 36 paramedics over sick-time use. Firefighters have already been disciplined.

Employees who call off sick force the city to pay overtime to maintain minimum staffing levels, costing hundreds of thousands of dollars a year. If the city didn't pay the overtime, fire trucks and ambulances would sit idle, said Safety Director Martin Flask.

"Sick time has a detrimental impact on safety services," he said. "Rules have to be followed."

If the Healthy Families Act becomes law, this practice might become illegal. Section 4114.10(C)(2) of the proposed law states: "No employer shall discharge or in any manner discriminate against any employee for opposing any practice made unlawful by this Act, including ... Using paid sick leave taken pursuant to this Act as a negative factor in an employment action, such as hiring, promotion, or a disciplinary action." Checking whether an employee's use of sick leave is legitimate could be construed as violating this provision. In other words, as the law is written, employees committing fraud by taking illegitimate time off work could hide behind the law to protect their jobs.

For more information on how you can help defeat the Healthy Families Act, visit www.saveourjobsandbenefits.com.

Anti-bullying policies are unnecessary

April's decision by the Indiana Supreme Court that upheld a $250,000 verdict in a so-called "workplace bullying" case is causing some employment lawyers to call for businesses to adopt anti-bullying policies. Please do not include me in that group.

From the Wall Street Journal's CareerJournal column:

Experts define workplace bullying as subtle, persistent and often nondiscriminatory harassment of co-workers. Unlike sexual or racial harassment, workplace bullying isn't necessarily illegal. But bullying can contribute to absenteeism and turnover and escalate into illegal behavior if left unchecked, experts say. ...

The Indiana decision came amid growing concern about workplace bullying. Garry Mathiason, a senior partner at Littler Mendelson, a leading employment-law firm, says more corporate clients are raising the issue, motivated by legal questions, as well as concerns about the impact on productivity. Littler Mendelson featured bullying among its "breaking trends" in labor law at a conference for U.S. employers this year.

Angela Cornell, an associate professor at Cornell Law School who specializes in employment law, says workplace bullying is common enough that employers should "nip it in the bud before it becomes a problem."

Graniterock, a Watsonville, Calif., construction-materials distributor, is trying to do just that. In June, Graniterock added nondiscriminatory bullying to its list of prohibited conduct in the workplace, which already included harassment based on gender, ethnicity and other protected statuses. ...

Some business groups and lawmakers say workplace bullying is too difficult to define, and a poorly worded law would expose businesses to unnecessary lawsuits.

Mr. Woolpert says Graniterock executives reworked their antibullying policy several times to clarify its message. The company now forbids "unnecessary and rude behavior intended to be offensive and cause emotional distress, including 'workplace bullying.' "

Let's take a step back and focus for a second on the most important sentence from that article: "Unlike sexual or racial harassment, workplace bullying isn't necessarily illegal." In fact, it's only illegal if its because of some protected class, such as sex, race, religion, national origin, age, or disability. All companies should have an anti-harassment policy that covers these types of illegal harassment. Why do companies need a policy that regulates conduct that is not illegal? Do we really need a policy that tells employees we want them to be nice? If such a policy existed, would it really have any effect whatsoever on the goons in the workplace. My whole problem with the anti-bullying movement is that I don't know how to train people to be nice.

I am against anything that gives this movement any credibility whatsoever. Implementing anti-bullying policies does just that. Bullying should be addressed just like any other performance problem, in a performance review. Otherwise, I stand by my earlier comments on this issue - the market corrects itself. Companies that foster bullies will have a revolving-door workforce, which will ultimately hurt productivity and the bottom line. So there is no confusion, I am not in favor of bullying. However, I'm also not in favor of legislation or policies that attempt to address it as a workplace evil.

Termination versus reasonable accommodation under the ADA

McNary v. Schreiber Foods, Inc. (8th Cir. 8/1/08) asks the question - if a diabetic employee needs to take a break on the job, but is perceived to be sleeping, can the employer lawfully terminate that employee.

David McNary, suffers from Graves disease (an autoimmune disorder with  symptoms that include fatigue) and diabetes. He worked for Schreiber Foods for six years as a sanitation employees on its dairy equipment. Despite his medical conditions, he was never under any work restrictions. However, McNary had many conversations with his co-workers and supervisors about his need for breaks. On occasion, when he felt he could not perform certain tasks due to dizziness and other symptoms, his co-workers stepped in to help him.

On September 22, 2005, while cleaning some trash compactors, McNary became dizzy, sick to his stomach, and light-headed. He left the compactors and sat down, put his feet up on a table, and closed his eyes. According to McNary, he simply took a break but was not sleeping. Two supervisors found him sitting at a table with his head back, his mouth open, and his eyes shut, and he did not appear to have heard an intercom that sounded. McNary denied that he was sleeping, and explained his medical conditions. The Company subsequently terminated him for sleeping on the job.

The Court found that the Company had a legitimate non-discriminatory reason for terminating McNary and was unsympathetic to his claim of pretext:

Federal courts do not sit as a super-personnel department that reexamines an entity's business decisions. One reason we emphasize this point is that a number of plaintiffs present a sympathetic situation in which the employer's judgment in imposing discipline may appear poor or erroneous to outsiders. It is tempting to think that the role of the federal courts is to offer a remedy in that sort of case. Whether we might believe that [Schreiber] was unduly harsh in its treatment of [McNary], however, is not a matter to be considered in deciding this appeal. Our authority is to determine only whether there is a genuine issue for trial on the question whether [Schreiber] discharged [McNary] because of his [disability].

This case, however, should be not have been litigated over the propriety of the termination decision, but instead whether the Company had an obligation to reasonably accommodate McNary's conditions. Remember, the ADA does not only prohibit companies from discriminating against individuals with disabilities, but also requires that companies make reasonable accommodation to enable qualified individuals with disabilities to perform the essential functions of the job. By focusing the termination decision, McNary picked a much more difficult battle to win. Had he focused on the accommodation issue, the company would have had to argue that an unscheduled 15 minute break imposed an undue hardship. That point would have been difficult for the company to win in light of McNary's co-workers' past practice of stepping in to help him when he needed a break.

The takeaway for employers from this case is that just because you can terminate an employee does not necessarily mean that you should. This case could have come out differently if the employee had focused on the lack of an accommodation instead of on the decision to terminate. Any time an employer is dealing with a disabled employee, it is best for the employer to tread very lightly. As this case illustrates, the ADA often raises highly nuanced legal issues, and it may be best to get an opinion from counsel before making the decision.

Indiana pushing for passage of Healthy Families Act to help its own economy

If need any more reasons to work as hard as possible to help defeat the Ohio Healthy Families Act, check out the following editorial from the Seymour, Indiana Tribune:

OUR VIEW: Ohio could boost Hoosier economy

We think Hoosiers should encourage Ohio residents to support an effort that would require Ohio companies with at least 25 employees to offer at least seven sick days a year. Such a program — in Ohio — would be great news for Indiana’s economy.

Service Employees International Union District 1199 is pushing an effort to get that plan on the ballot in November 2008 to help drive Democratic voter turnout, The Associated Press reports.

It would be yet another reason for businesses not to choose Ohio, but that isn’t deterring the union. We say go, brothers, get it on the ballot and get it enacted into law.

Ohio already has high taxes, a higher minimum wage and a smoking ban. Why wouldn’t the union look for one more way to keep jobs from being created there? ...

“Workers should not have to choose between a paycheck and recovery time when they get sick,” the union said in a statement.

Measures like this one will ensure the paycheck won’t even be an option for even more Ohioans and perhaps ensure that more companies like Honda and Nestle choose Indiana over Ohio as homes for their plants, much as they did with announcements last year. Again, that’d be good news for the Hoosier economy.

Let’s hope the idea doesn’t cross the state line.

I've also heard that Indiana has billboards just across the state line from Ohio that read: "Come on IN for lower taxes, business and housing costs".

Our Midwestern neighbors are salivating at the opportunity to steal our businesses and jobs if the Healthy Families Act passes in November. Do not give them the opportunity.

WIRTW #42

On August 11, I will be hosting Blawg Review. For those who are unfamiliar with it, Blawg Review is a weekly review of the best of the blawgosphere, with its hosts rotating with each issue. Because of my Blawg Review responsibilities, WIRTW will be on hiatus next week, to return on August 15. Starting Monday (8/4), however, I will begin accepting submissions for the August 11 issue of Blawg Review. If you would like one of your posts considered, please email it to me with "Blawg Review" in the subject line.

On to this week's best labor and employment law posts:

Michael Moore at the Pennsylvania Labor & Employment Blog asks a question that is near and dear to my heart - is the legal system to blame for humorless work environments?

From a legal perspective, should employees be worried about injecting humor into the workplace and is an employer’s “joke slap-down” necessary? If your humor doesn’t demean people based on their membership in a protected class, then joke away.

It is the “off-color jokes” and other “humor” related to gender, race, national origin, religion or other protected classifications that can be considered harassment. These types of comments always find their way into allegations of discrimination or harassment when a complaint is filed.

I don't think it is necessary to scrub all humor from workplace. Indeed, such a measure could do more harm than good in terms of employee morale. Michael, however, offers several good tips to assist in avoiding liability for humor that does make its way into work.

The aptly named Labor and Employment Law Blog gives us 5 reasons why companies prefer to drug test job applicants as opposed to employees.

Meanwhile, the (not so) Evil HR Lady gives some insight on drug testing from an HR perspective.

The Delaware Employment Law Blog summarizes Senator Obama's promises to working women if he becomes President.

George's Employment Blawg tells everyone how to bulletproof employee investigations.

Finally, John Phillips' Word on Employment Law gives his tip of the week on the importance of written job descriptions.