Governor Strickland formally speaks out against Healthy Families Act

Governor Strickland's efforts to broker a compromise on the Healthy Families Act have officially failed. He has been tirelessly working behind the scenes to come to some workable solution that would keep the initiative off November's ballot. With that effort having gone for naught, the Governor has now officially weighed in with their opinion on this proposal:

We also recognize it is important to make clear our thoughts on important public policy issues and today are announcing that we cannot support the paid sick-day ballot initiative.  While we would hope that all Ohio businesses would make paid sick days available to their employees whenever possible, we believe that this initiative is unworkable, unwieldy and would be detrimental to Ohio's economy, and we will be opposing it and asking Ohioans to oppose it as a result.

Folks, if the Democratic Governor of our state is against this pro-employee measure, is there any doubt that its passage is bad for Ohio?

Blasting through the bulletproof employee

Butler v. Alabama Dept. of Transportation (11th Cir. 7/30/08) concerns a black employee belatedly complaining that a white employee used the word "nigger" in her presence, but admittedly not directed at her. After Butler was terminated, she successfully prosecuted a claim for retaliation. The 11th Circuit took away the $200,000 verdict because the racial epithets of which Butler complained did not amount to actionable harassment:

Assuming that Butler did believe that Stacey’s words immediately after the wreck amounted to an unlawful employment practice ..., her belief is not objectively reasonable. It is not even close. The incident consisted of Stacey’s use of a racial epithet twice a few minutes apart. What Stacey said was, as Butler testified, “uncalled for” and “ugly.” But not every uncalled for, ugly, racist statement by a co-worker is an unlawful employment practice. This incident occurred away from work. It did not happen within the hearing of any supervisors. Butler admits that she never thought the epithets, deplorable as they are, were aimed at her. She has never even suggested that this one-time use of vile language away from work created a hostile work environment. She also conceded during cross-examination that the incident did not affect her ability to do her job. The incident that gave rise to this case is nowhere near enough to create a racially hostile environment.

This case is a boon for employers. Often, employees will complain about bogus incidents of discrimination in an attempt to bullet-proof themselves from an adverse action. Employees believe that the mere threat of retaliation liability will protect their jobs. Sometimes employers become paralyzed over the threat of litigation, no matter how baseless it might be. This case sends the right message to employees, that a meritless complaint will not protect a poor performer.

Of course, this case merely begs the question of what constitutes actionable discrimination. Employers can still get themselves in trouble by trying to make legal judgments of what is and is not a legitimate complaint of discrimination. Whenever a company is thinking about terminating or taking any other adverse action against an employee who has complained about discrimination, it is best to get employment counsel involved to make sure that every "i" is dotted and "t" crossed, so that when the inevitable retaliation claim is filed the company is in the best position to defend itself.

Right to reinstatement under USERRA for returning military personnel is absolute

In 1994, Congress enacted USERRA (the Uniformed Services Employment and Reemployment Rights Act), to protect the employment rights of the men and women who serve our country. Although this statute is not litigated as often as Title VII, it is nevertheless important to employers, especially in light of the number of military personnel returning from Iraq and Afghanistan.

USERRA guarantees returning veterans a right of prompt reemployment after military service, provided the employee meets five conditions:

1. The employee must provide the employer notice that the employee intends to take leave for military service.
2. The cumulative length of the employee's service cannot exceed five years.
3. If the leave exceeded 30 days, the employee makes timely reapplication for employment.
4. If the leave exceeded 30 days and upon the employer's request, the employee documents the timeliness of the reapplication and the duration of the leave.
5. The employee's separation from military service was under "honorable conditions."

If an employee meets these conditions, the employer must promptly reinstate that employee in a position the employee might have reached had it not been for the intervening military service, at the level of pay, benefits, seniority, and status commensurate with that position.

What happens, however, if an employee meets these conditions, but the employer has a good faith doubt about the employee's veracity in documenting the leave? Can the employer refuse to reinstate the employee, or reinstate the employee to a lesser position while it sorts out its good faith doubt. According to Petty v. Metropolitan Gov't of Nashville-Davidson Cty. (6th Cir. 8/18/08), the right to reinstatement is absolute, and the employer cannot place conditions upon it if the employee meets all of the statutory requirements.

Brian Petty was a patrol sergeant in the Nashville police department prior to his deployment to Iraq. His tour of duty ended prematurely when he was brought up on military charges for bootlegging wine to Kuwaiti natives in exchange for work. In lieu of going forward with a court martial, Petty was permitted to resign “for the good of the service.” The Army accepted his resignation and dismissed all charges against him.

Petty had to fill out certain return to work paperwork at the Nashville police department. On that paperwork, he disclosed the charges that were brought against him. He was kept out of work, without pay, for a month while the police department investigated. It ultimately permitted Petty to return to work, albeit at a lesser position, answering phones and filling out paperwork at a desk. He remained at that desk job while the department continued to investigate the veracity of his representations about his military charges.

The Court ruled that if an employee meets all of the prerequisites for military leave, reinstatement to the same or similar position is mandatory. It is irrelevant if the employer has a good faith doubt in the veracity of return to work paperwork the employee completes.

It is of no consequence here that Metro believes it is obligated to “ensure that each and every individual entrusted with the responsibility of being a Metropolitan Police Officer is still physically, emotionally, and temperamentally qualified to be a police officer after having been absent from the Department.” In USERRA, Congress clearly expressed its view that a returning veteran’s reemployment rights take precedence over such concerns. Metro does not question Petty’s physical qualifications; instead, it questions only whether his conduct during his military service would disqualify him from returning to service in the police department. But Petty’s separation from military service is classified as “under honorable conditions,” which Congress has made clear suffices to qualify him for USERRA benefits.

Thus, the police department's doubt, in good faith or not, in Petty's veracity about his military criminal history is irrelevant to his return to work.

According to the Court, the employer's intent in not restoring the employee to his prior position is also irrelevant to the reemployment claim:

It is important to note that Petty was not required to make any showing of discrimination in order to sustain either of his reemployment claims. ... Section 4313 states that any “person entitled to reemployment under section 4312” — which we have found Petty to be — “shall be promptly reemployed in a position of employment in accordance with the” order of priority outlined in § 4313(a)(2). Thus, the express terms of § 4313 make its application contingent only on the prerequisites of § 4312, none of which include a showing of discrimination.

This case is significant for employers who deal with returning military personnel. It sets out a clear policy in favor of returning military personnel, and their absolute right to reinstatement if they simply meet the bare requirements of the statute. If the employer has a doubt in the employee's veracity, the employer's only option, under this case, is to reinstate the employee and then terminate after the fact for "just cause" if the employer verifies its doubts.

Next week, we'll take a look at the Court's handling of Petty's USERRA discrimination claim.

The real cost of paid sick leave is staggering

The National Federation of Independent Businesses has commissioned a study to calculate the real cost of paid sick leave to Ohio. The results:

• 75,000 lost jobs.

• 20% of the job losses to hit businesses with 20 or fewer employees.

• $1.17 billion in costs to Ohio employers each year.

• $9.4 billion in lost sales to Ohio businesses over the next 4 years.

Source: Cleveland.com.

Argument that FMLA does not prohibit retaliation falls on deaf ears at court of appeals

When a company is caught making a bad employment decision, they come to us, their lawyers, to bail them out. Bryant v. Dollar General Stores (6th Cir. 8/15/08), presents one such example. Dollar Stores fired Martha Bryant, who testified that her supervisor told her she was being fired "[b]ecause of your health, I don’t think you can do the job."

Faced with what one can safely call bad facts, Dollar Stores got creative. It argued, both to the trial court and on appeal, that the FMLA does not prohibit retaliation against an employee who takes FMLA leave. The 6th Circuit correctly rejected that argument, and held that the FMLA does, in fact, allow for retaliation claims:

Any "right" to take unpaid leave would be utterly meaningless if the statute’s bar against discrimination failed to prohibit employers from considering an employee’s FMLA leave as a negative factor in employment decisions. Interpreting § 2615(a)(2)'s ban on discrimination in a manner that would permit employers to fire employees for exercising FMLA leave would undoubtedly run contrary to Congress's purpose in passing the FMLA. ...

Dollar General's reading of the statute would essentially render the FMLA a nullity. Their interpretation would require us to believe that—despite including statutory provisions granting eligible employees the "rights" to take up to twelve weeks of unpaid leave in a twelve-month period and to be restored to their prior positions or equivalent positions upon their return—Congress wished to erect no obstacle to prevent employers from terminating employees who exercise their newly granted "rights." In enacting the FMLA, Congress plainly stated that "the purpose of this Act" included establishing a right for "employees to take reasonable leave for medical reasons." 29 U.S.C. § 2601(b). Interpreting the language in § 2615(a)(2), which bars employers from discriminating against employees, in a manner that would permit employers to terminate employees for taking qualifying medical leave is fundamentally inconsistent with the clear, unambiguous purpose of the FMLA.

There are two lessons to take from this case, aside from the common sense legal rule it announces. Lawyers are not superheroes. We cannot do the impossible, although we often try for our clients.

Five reasons why I'm against the Healthy Families Act

As most know, the Healthy Families Act paid sick leave mandate guarantees seven days of paid sick leave each year to employees who work at least 30 hours a week and a pro-rated number of days to employees working less than 30 hours in any workplace with at least 25 employees. Who can argue against paid time off from work? It's a benefit that most employees would love to have.

If employees dig deeper, however, they will realize that the Healthy Families Act, while attractive on its face, is not the cure-all they need for their families. In fact, it will cause more short and long term damage to Ohioans' jobs than lacking a few paid days off per year.

1. Requiring employers to add paid sick leave is a threat to pay, benefits and jobs. The proposed mandate imposes significant added costs on employers, who in turn will be forced to look elsewhere to make up the difference. Other benefits, pay, and even jobs will be on the chopping block as businesses try to find the money to pay for sick leave. What good is paid sick leave if employees can no longer afford the health insurance that covers their sick family members because employers increase employees' contributions to counterbalance the cost of mandated sick leave?

2. Even employers who already offer paid sick leave will be seriously penalized by this proposal. This proposal allows employees to take sick leave with little or no advance notice in increments as small as an hour or less. How will you feel if you have to cover for an employee who goes home, with pay and without notice, because he or she has an upset stomach? Moreover, this unannounced leave poses a serious threat to safety-sensitive operations like hospitals, nursing homes and day-care facilities.

3. This mandate will brand Ohio as a job-killer. Ohio is suffering through its worst economic period in decades. This mandate will make Ohio the only state in the union with a mandated paid sick leave law, significantly driving up the cost of doing business when we can least afford it. Some Ohio companies will leave for less expensive states while companies in other states will dismiss Ohio as a potential location for expansion. In short, this mandate will kill economic development at a time when we need more jobs, not fewer jobs. What good is paid leave is there are no jobs left in which to use it?

4. The increased cost of paying for sick leave will result in more expensive goods and services. High oil prices has already increased the costs of many goods and services. While employers in the short term will need to cut benefit packages to pay for this mandate, the long-term result will be increased costs of goods and services, as businesses need new ways try to cover the cost of paid sick leave.

5. This proposal interferes with the established relationship between employers and employees at some of the nation’s most successful businesses. Many companies now operate under long-standing policies that provide employees with good pay and benefits in exchange for work arrangements that ensure a continued high level of production. This proposal guts the employer-employee relationship and threatens the production stability achieved during years of mutual cooperation.

Governor Strickland's efforts to broker a deal between business and union leaders appears to have failed. Unless the unexpected happens, the Healthy Families Act will be on November's ballot. It is important to keep these ideas in mind when considering this mandate, and not simply get caught up in the sex appeal of a few paid days off per year.

WIRTW #43

A quick thank you to everyone who helped make Monday's Blawg Review #172 a huge success - those who sent in suggested links and those who graciously linked to the post and helped drive traffic. Now, onto what I've been reading the rest of the week.

The Connecticut Employment Law Blog writes on the difficulty of predicting litigation costs at the start of an employment case.

The Delaware Employment Law Blog lists the top 10 reasons employers should screen their job applicants.

BLR's HR Daily Advisor presents another top 10 list, reasons why HR documentation fails in court.

WorkplaceHorizons reports on the Workplace Religious Freedom Act, which would amend Title VII by modifying the definition of "religion"and requiring employers to make an affirmative effort to reasonably accommodate the religious practices of employees.

The Labor and Employment Law Blog gives some advice for employers to consider in the use of GPS tracking devices.

The FMLA Blog summarizes Santacrose v. CSX Transportation, an 11th Circuit decision which held that an employer satisfied its duty to reasonably accommodate a disabled employee by permitting him to take intermittent FMLA leave.

The HR Capitalist asks whether your HR employees would violate HIPAA to see celebrities' medical records.

The Trial Technologists View reports on his recent use of technology to help an employer present its case in a sex discrimination trial.