WIRTW #45

Lawsuits come in all shapes, sizes, and levels of intrigue. One lawsuit filed this week in federal court in Connecticut is high on the latter -- check out the Connecticut Employment Law Blog's post on Scott Levy, et al. v. World Wrestling Entertainment. Scott Levy, who wrestles under the name "Raven", claims that the WWE mis-classified him and other similarly situated current and former WWE performers as independent contractors. Levy claims that he is owed compensation as a result of being an employee of the WWE. While the Complaint is vague, one would presume that at least some of the compensation owed is for unpaid overtime. We should continue to keep on this case, as the WWE and Vince McMahon are known for being aggressive litigants.

The Delaware Employment Law Blog continues the wage and hour theme by giving a good primer on the FLSA's executive exemption.

Fair Labor Standards Act Law rounds out this week's wage and hour posts by reporting on a case in which the court held that an employee's ability to work overtime was an essential function of her job, thereby dooming her disability discrimination claim.

Workplace Horizons gives detail on a potentially significant trial in which a transgender Plaintiff alleges that the Library of Congress engaged in sex discrimination in violation of Title VII by refusing to hire her. This case is being tried after the district court ruled that Title VII is broad enough to cover transgender persons under its provision banning discrimination based on sex. On the flip side, Dan Schwartz at the Connecticut Employment Law Blog reports on an opposite outcome in a case filed in federal court in Connecticut.

The FMLA Blog digests a case in which the court held that discouraging the use of FMLA leave can violate the FMLA even if the employer ultimately grants the leave.

Labor and Employment Law Blog has a top-5 list of  workplace privacy tips for employers.

Nolo’s Employment Law Blog bashes companies that use surveillance on employees taking FMLA leave. Linked are my thoughts on the Vail v. Reybestos case.

Finally, Rush on Business reminds us that honesty really is the best policy in business dealings.

LPGA Tour implements English proficiency requirement

From this morning's USA Today:

The LPGA tour will use the next four months to create evaluation procedures for its new policy requiring its member golfers to speak English or face suspension.

All players who have been on the tour for two years could be suspended if they fail to pass an oral evaluation of their English proficiency starting at the end of the 2009 season.

The evaluation will assess communication skills, including conversation. Players will be required to conduct interviews, interact with pro-am partners and fans and give acceptance speeches in English and without the help of an interpreter, according to LPGA deputy commissioner Libba Galloway.

"For an athlete to be successful in the sport-entertainment business we live in today, they need to perform on and off the field of play, and communicating effectively is a big part of that," Galloway said "We are a U.S.-based tour, and the majority of our pro-am players, our fans, our sponsors speak English."

I've written before about the legality of English-only rules. Generally, courts uphold English-only rules if the employer can show a legitimate business justification for the requirement. Examples include:

• Curbing employee hostilities.
• Promoting communication with customers, coworkers, or supervisors who only speak English.
• Enabling employees to speak a common language to promote safety or enable cooperative work assignments.
• Facilitating a supervisor's ability monitor the performance of an employee.
• Furthering interpersonal relations among employees.

The LPGA's rule is not a ban on the use of foreign languages, but, as the press has been reporting it, a requirement that its members are proficient in English. Thus, it is less onerous than a prohibition on the use of one's native language. Nevertheless, pundits are already decrying this proposal and opining on its illegality.

Let's look at the LPGA's rationale for this rule. 18 of this year's 23 LPGA tournaments have been won by players for whom English is not their native language, including all four of this year's majors. 45 of the 120 players on tour are South Korean, seven of which in the top 20. The LPGA has made the decision that to grow its sport in its home country, its stars need to be able to communicate effectively with the media. The LPGA is not requiring its members only speak English, but that they are able to communicate in English when the need arises (such as in press conferences or pro-am events). Because of this legitimate business purpose, the LPGA's proposed rule should pass muster under Title VII.

Background check protects employer from negligent hiring claim

A claim of negligent hiring requires proof of five elements under Ohio law:

1. the existence of an employment relationship;
2. the employee's incompetence;
3. the employer's actual or constructive knowledge of the employee's incompetence;
4. the employer's act or omission causing the plaintiff's injuries;
5. the employer's negligence in hiring or retaining the employee as the proximate cause of the plaintiff's injuries.

Prewitt v. Alexon Services (Butler Cty. 8/25/08) concerns an employee who was raped by a co-worker. When Alexon hired the co-worker, it conducted a background check that revealed a misdemeanor disorderly conduct conviction, but not past history of sexual assault or abuse. Prewitt claimed that Alexon's screening was negligent because it did not conduct any additional inquiry or investigation to discover that the disorderly conduct conviction was sexual in nature. The court disagreed, finding that Alexon was entitled to rely on the results of its background check.

No applicant vetting process is perfect. Applications ask for criminal histories, and some companies go one step further by actually ordering a background check. At that point, what else can a company do? The transaction costs associated with a typical background check are high enough. If every employer had to investigate every conviction that shows up on a report to discover its underlying facts, the hiring process would grind to a halt. Thankfully, the court in Prewitt realized that reasonable steps taken by an employer deserve a reasonable result - in this case, the dismissal of the claim against the employer.

Disclosure of confidential medical records held to be protected activity

Bernadine Vaughn worked as a nurse at Epworth Villa, a non-profit,
continuing care retirement community. On April 28, 2004, Vaughn filed a charge with the EEOC alleging that Epworth Villa discriminated against her because of her age and race. Specifically, she claimed that she was disciplined for making errors with a patient’s medical records, while a younger, white employee was not. In support of her claim, Vaughn provided the EEOC with several pages of unredacted medical records concerning an Epworth Villa patient. Over a year after Vaughn had filed her charge of discrimination with the EEOC (which remained pending), Epworth Villa learned about Vaughn’s disclosure of the unredacted medical records, which Vaughn admitted. Within a week, Epworth Villa terminated her employment for disclosing confidential medical records to a third party.

Vaughn subsequently claimed retaliation -- that he disclosure of the medical records to the EEOC in support of her discrimination charge constituted protected activity, and Epworth Villa terminated her because of that protected activity.

In Vaughn v. Epworth Villa (10th Cir. 8/19/08), the 10th Circuit Court of Appeals agreed that Vaughn's conduct was protect activity, but nevertheless affirmed the dismissal of her retaliation claim because her disclosure of confidential information violated the employer's policy:

Epworth Villa asserts that it terminated Vaughn because she violated the organization’s policies and procedures regarding confidentiality when without authorization, she provided the unredacted medical records to the EEOC. ...

Unless Vaughn can show that other Epworth Villa employees were not terminated for engaging in the same or similar conduct – intentionally disclosing unredacted medical records to a third party – the fact that Epworth Villa was not required to terminate Vaughn does not give rise to an inference of pretext. In the absence of any evidence that similarly situated employees were treated differently, it is perfectly plausible that Epworth Villa would terminate Vaughn – whether it was required to or not – for intentionally disclosing the unredacted medical records rather than for some retaliatory purpose.

Current employees who file discrimination claims might go snooping to uncover favorable evidence to bolster their chances of success. While such snooping might constitute protected activity, this case gives employers a powerful weapon to combat it. The catch is that companies must have a confidentiality policy and must consistently enforce that policy against employees who violate it. Otherwise, enforcement against the one employee who happened to have claimed discrimination will most likely be viewed as retaliatory.

Should businesses be reviewing paid leave policies in advance of the Healthy Families Act?

The above-the-fold headline on the front page of Sunday's Plain Dealer business section reads, "Employers consider altering benefits before voters decide sick days issue." A whole lot of ink has been spilled in law firm newsletters all over Ohio discussing this very issue. As the article notes, some lawyers are recommending and business are considering making revisions to benefit plans and leave policies now, to potentially lessen the blow if the Healthy Families Act passes on Nov. 4.

This debate centers around two sentences in the proposed law, section 4114.07:

(B) An employer with a leave policy providing paid leave options shall not be required to modify such policy, if such policy offers an employee the option at the employee’s discretion to take paid leave that is at least equivalent to the sick leave described in this section.

(C) An employer may not eliminate or reduce leave in existence on the date of enactment of this Act, regardless of the type of such leave, in order to comply with the provisions of this Act.

Some are considering changes now because of 4114.07(C). Before the law passes, a company will be able to reduce employees' vacation days to insert paid sick leave, or amend its current leave program to switch to a paid time off system. After the law goes into effect, however, current leave programs cannot be subtracted from to add the 7 paid sick days.

The question in my mind is what does "leave that is at least equivalent to the sick leave described in this section" mean? Is is leave that an employee can for his or her own physical or mental illness, injury, medical condition, or professional medical diagnosis, or that of a child parent or spouse? Or, does the leave have to comply with the subtle nuances of the statute, such as lack of notice, incremental leave as small as 1 hour, and no medical certification for leaves of less than 3 days?

If a business has policies that, alone or take together, enable employees to take 7 paid sick days, that business should, in theory, be okay under 4114.07(B).

If companies try to get out in front of the OHFA and change their personnel policies now by converting vacations in paid time off, which can be used for any reason including sick leave, will business still have to grant an additional 7 days of sick leave if the PTO they do grant does not meet the OHFA's minimum requirements for the use of paid sick days?

Common sense would dictate that a day that can be used as a paid sick day should suffice, and the other nuances are merely administrative and can be added in after the fact by businesses if the OHFA passes. However, there is nothing common sense about this law. Businesses run a real risk by making any changes in advance of the election. They very well might end up paying double benefits.

In other words, their are serious pros and cons to making any changes now.

 

Pros	Cons
7 days that an employee can use for sick days is equivalent to the overall leave provided for in the HFA, and therefore should suffice under 4114.07(B).	Ambiguities in the proposed law mean that any changes made now might not suffice unless the paid sick leave is tracked feature-by-feature, such as no notice and leave in 1 hour increments.
Waiting to make changes risks not be able to subtract from current benefits, thereby adding the cost of 7 paid sick days.	Making changes now risks that they will not suffice under the statute, thereby adding the cost of 7 paid sick days.
Employees may prefer a more flexible leave program.	Negative employee morale by changing leave plans, such as eliminating vacation days.
PTO policies offer employees greater flexibility in how they use their time off.	PTO policies provide employers less control over how employees use their time off.

 

Any decision about amending leave and benefit policies in advance of the election is not a easy as it might sound. These decisions must be carefully thought out after weighing these pros and cons.

Governor Strickland's press release against the Healthy Families Act

For those who are interested, the following is the Governor's press release condemning the Healthy Families Act.

Strickland on Sick Days - Upload a Document to Scribd

The fight between both sides of this issue between now and November 4 is going to be very contentious. It is very significant that our Democratic Governor has taken a public stand against this measure. The key for businesses is to figure out a game plan to capitalize on this publicity and get the message out to employees that there is a significant price to be paid in exchange for 7 paid sick days.

There are a wealth of resources available on the internet about the Healthy Families Act.

• Ohioans to Protect Jobs and Fair Benefits is the official campaign against this ballot measure. Its website not only has information for those who oppose this initiative, but details on how to get involved in the campaign.
• COSE (the Council of Smaller Enterprises) also has a great informational website about the Healthy Families Act, and information on how to get involved in the campaign.
• Play Sick Ohio has been created by the Ohio Roundtable, a non-profit public policy think tank.

And, I will continue to keep everyone updated as this campaign against mandated paid sick leave continues.

WIRTW #44

I guess if Motherhood Maternity can be sued for pregnancy discrimination, then the AARP can be sued for age discrimination. It seems that Bonita Brady, age 63, claims she was passed over for a series of promotions even though she received excellent job reviews. Michael Moore at the Pennsylvania Labor & Employment Blog has some excellent thoughts on what a lawsuit such as this one can mean to an organization's core values.

As for the rest of the week's best posts:

Drug and Device Law provides a manifesto (of sorts) on what it means to be a lawyer. Hopefully they won't mind, but it's so good I'm reprinting the highlights. Please click on over for the rest.

We admit it: We're as crazy as the next guy.

Heck -- given that we spend nights and weekends feeding this blog, there's a pretty strong argument that we're crazier than the next guy.

We fret about whether each and every one of the ten million documents has been reviewed and coded correctly, and we change commas into dashes -- and back again -- in footnote nine on page thirty of the brief.

We believe that our clients are more likely to win if we do our jobs right, and we devote an awful lot of energy to that cause.

And then the system kicks in.

Courts make utterly unpredictable procedural rulings that dramatically change the value of our cases. ...

The Laconic Law Blog and the Connecticut Employment Law Blog have details on amendments to the federal Consumer Product Safety Commission Act that create a new cause of action designed to protect whistleblowers on product safety issues. Also check out the Connecticut Employment Law Blog's summary of issues surrounding the selection of EPL insurance.

The National Law Journal reports on employers' use of surveillance to catch FMLA scofflaws.

The Delaware Employment Law Blog lists the top 5 costs associated with workplace bullying.

Wage and Hour - Development & Highlights correctly reports that lunch time can be counted as work time. For my thoughts on this issue, see More on compensation for meal periods.

The Manpower Employment Blawg presents its list of the top 10 most frightening employment law issues.

Electronic Discovery Navigator reminds businesses that lawsuits can be an expensive IT threat.