A lesson in drafting clear handbook policies

Quality Mold had a handbook policy under which an employee would forfeit unused vacation upon a termination for "gross misconduct." The handbook, however, did not ascribe a definition to "gross misconduct." Quality Mold administered drug tests to its supervisors after receiving a tip from an employee's mother that one supervisor was furnishing drugs to her son. John Lang tested positive for cocaine and marijuana. Quality Mold terminated him and refused to pay him for his unused vacation time, determining that a failed drug test constitutes gross misconduct. In Lang v. Quality Mold (Summit Cty. 9/10/08), the Court of Appeals disagreed:

Quality Mold has argued that "gross" means "[g]laringly, obvious, [or] flagrant." As the magistrate noted, there was no evidence that Mr. Lang distributed illegal drugs to other employees. There was also no evidence that Mr. Lang's drug use had impaired his performance, that he had endangered other workers, that he had any absenteeism or disciplinary problems, or that he had caused harm to Quality Mold's other employees or property. Under these circumstances, this Court concludes that the trial court's finding that Mr. Lang had not committed gross misconduct was supported by the record.

On first blush, this opinion seems to defy common sense. As the concurring opinion points out, "employers and managers of companies unquestionably have an interest in preventing drug use by their employees, as it affects not only the quality of their production but also the safety of their staff and potential consumers." However, as the concurring opinion also points out, "employers also enjoy the prerogative to clearly set forth terms that define the manner in which vacation can be used or retained and the consequences for violation of company policies."

Let this case serve as a cautionary tale -- don't leave policies open to interpretation by a court. If you want drug use, or some other reason, to disqualify an employee from receiving a vacation payout on termination, say so. Don't trust that judges will see things your way when you have to argue an ambiguity after the fact.

WIRTW #47

Apparently it's not just Sikhs that Disney World is alleged to discriminate against. The Delaware Employment Law Blog reports on a decision out of the 11th Circuit in which an Asian man's national origin discrimination claim against Disney World was thrown out because he was not qualified to work in Epcot Center's Norwegian restaurant.

Politics continue to dominate the headlines. The Connecticut Employment Law Blog draws some employment law lessons from Barack Obama's "lipstick on a pig" comment from earlier this week.

CCH HR Management presents a nice, neutral summary of the candidates' positions on various workplace issues.

The Word On Employment Law points out an issue that may have fallen under the radar in the EEOC's recent new compliance manual section on religious discrimination in the workplace. Apparently, the EEOC is now taking the position that it is not religious discrimination for employers to hold worship services at work during business hours.

Courtesy of the World of Work comes this shocker -- a retail chain's store manager calling a department head "Grandma" was evidence of age discrimination.

The Philadelphia Business Journal has an insightful piece about current trends in the enforcement of non-competition agreements.

The HR Capitalist makes an excellent point on the allocation of the responsibility for background checks between employers and recruiters.

BLR's HR Daily Advisor debunks some common myths about sexual harassment.

The Workplace Prof Blog discusses a Tennessee Supreme Court decision which held that an employer owed a duty of care to the daughter of a former employee for her asbestos-related death.

Finally, on The Becker-Posner Blog, Gary Becker and Judge Richard Posner have a healthy debate on whether competition between businesses or the law is more effective at fighting discrimination.

If you could ask each Presidential candidate one question...

Dan Schwartz at the Connecticut Employment Law Blog asks, "What one question would you like the debate moderators to ask each of the major party candidates?" Here's mine.

In May 2007, the EEOC published its Enforcement Guidance on Unlawful Disparate Treatment of Workers with Caregiving Responsibilities. As part of Sen. Obama's plan to strengthen families, he has vowed to protect against caregiver discrimination by committing the government to enforce those EEOC guidelines.

For Sens. Obama and Biden:

Gov. Palin could be a heartbeat away from assuming the presidency. Do you believe that a mother of a child with special needs can effectively balance her job as a mother and being the leader of the free world?

For Sen. McCain and Gov. Palin:

Since Gov. Palin's nomination, your campaign has gotten a lot of traction out of her life story. You have accused the media and the Democratic party of sexism in their treatment of Gov. Palin and her dual role as a politician and mother to a special needs child. In light of Gov. Palin's caregiving role, if elected, will you make the same commitment as Sen. Obama to combat workplace discrimination against people with caregiving responsibilities?

UPDATE: Coincidentally, msnbc.com posted an article this morning about the potential Palin effect on working moms. From the article: "A spokeswoman for the McCain-Palin campaign said she was unable to say at this time what Palin’s position is on federal policies relating to job protections and benefits for working mothers." All the more reason to ask this question.

Every minute counts for FMLA eligibility

A few years ago I had the privilege of arguing the winning side in Ricco v. Potter (6th Cir. 7/27/04). Ricco held that "make-whole relief awarded to an unlawfully terminated employee may include credit toward the hours-of-service requirement contained in the FMLA's definition of 'eligible employee,'" reasoning that "[t]he goal of a make-whole award is to put the employee in the same position that she would have been in had her employer not engaged in the unlawful conduct; this includes giving the employee credit towards the FMLA's hours-of-service requirement for hours that the employee would have worked but for her unlawful termination."

Pirant v. U.S. Postal Service (7th Cir. 9/4/08) illustrates the import of the Ricco holding. the USPS terminated Pirant for attendance violations. She claimed that the USPS violated the FMLA by terminating her for missing work because of an arthritic knee. One part of one day of work proved dispositive to her FMLA claim. On October 5, 2001, Pirant’s supervisor ordered her to clock out two hours early, claiming that she was being insubordinate and not doing her work. Pirant clocked out and went home two hours early. While she complained to a Postal Service Dispute Resolution Specialist, who advised that she could file a formal grievance for restoration of back pay if she still thought she had been wrongfully ordered to clock out two hours early. Pirant, however, never filed a timely grievance. The USPS secured dismissal of her FMLA claim because she had only worked 1249.8 hours in the preceding 12 months. Thus, she was 12 minutes short of the law's requisite 1,250 hours.

This case is a good lesson for companies that something as trivial as a grievance over 2 hours of missed work could end up being very significant. If Pirant had grieved that two-hour suspension and had won, she would have been over the 1,250 hour threshold. In that case, instead of fighting over her eligibility for FMLA leave, the employer would have been fighting over the motivation for her termination, a much harder case. However, because she failed to grieve that suspension, it was a moot point:

Pirant also argues that she should be credited for the two hours she alleges she missed when her supervisor improperly ordered her to clock out early. Citing the Sixth Circuit’s decision in Ricco v. Potter, 377 F.3d 599 (6th Cir. 2004), Pirant argues that hours not worked because of a wrongful suspension or discharge count as hours of service for FMLA purposes. Ricco does not help her here....

Here, Pirant was advised of her right to file a formal grievance and request for back pay after the October 5, 2001 clock-out incident. She did not do so—not, at least, until after she was terminated and long after the 15-day regulatory filing period had expired. Nor did she pursue any challenge to the dismissal of her belated grievance as untimely.... By failing to pursue a formal challenge to her suspension, Pirant has accepted that she is not entitled to either compensation or FMLA credit for the lost two hours.

[Hat tip: Workplace Prof Blog]

Are you ready for the return of labor unions?

Statutes are famous for their creative names. For example, did you know that the [USA] Patriot Act is actual short for Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act? The Employee Free Choice Act (ECFA) is no exception. After all, in a democracy who's against people having a free choice? If you are an employer of a non-union shop, you best decide that you are against it, and figure out a plan to cope with it if it becomes law.

Under current federal labor law, the tools used to recognize a union as employees' exclusive bargaining representative begin with a employee petition for representation by a union, and in most cases end with a secret ballot election. If more than 30% of employees, but less than a clear majority, sign petition cards requesting representation, the cards are submitted to NLRB to hold a secret ballot election. If more than 50% of employees certify their desire for representation, a union can choose to form based on the cards alone. An employer, however, does not have to recognize the card check petition and can require a secret-ballot vote overseen by the NLRB. Because most, if not all, employers will insist on a secret ballot election if given the opportunity, there are very few unions that end up being certified without an election being held.

The EFCA, however, will change this process by removing the secret ballot election. Under the EFCA, an employer would no longer have the opportunity to demand a secret ballot election. In other words, a majority of cards will be enough to certify a union.

Is there anything less democratic about people not being able to state their opinion via a secret ballot? I can't put it any better than Representative John Kline of Minnesota:

 

This bill has passed the House, but was held up by a filibuster in the Senate. Regardless, President Bush has already gone on record with a promise to veto it if it ever comes in front of him. Unsurprisingly, Barack Obama is in favor of the EFCA, and John McCain is against it. Even if McCain wins in November, this issue will not go away, as Congressional Democrats will continue to aggressively push for its passage.

For now, and even if the EFCA becomes law, the best defense against a labor union is simply being a good place to work. Having competitive wages and benefits, maintaining open lines of communication between employees and management, making personnel decisions for legitimate, non-arbitrary reasons, and fostering a sense of community all go a long way to deterring employees from even considering brining in a union.

What McCain's Sarah Palin decision teaches us about employment law

A lot of ink has been spilled in the last 10 days about John McCain's decision to choose Sarah Palin as his running mate. Much of that ink has focused on Palin's family issues that have come to light and whether McCain's team properly vetted her background. Suffice it to say that I'd like to see companies do more extensive screenings on even their hourly employees then it is believed McCain did on Palin.

Some of that ink has also suggested a sex-based bias in the treatment of Governor Palin as a mom and the role that plays in her ability to effectively perform her job. Some conservative pundits have suggested a bias because no one is questioning Obama's ability to govern and be a father at the same time.

While this debate has a lot to say about sexual stereotypes and the treatment of parents in the workplace, I'd like to use this debate to illustrate another point. On May 21, 2008, President Bush signed into law the Genetic Information Nondiscrimination Act ("GINA"). Among other provisions, GINA makes it illegal for employers to discriminate against any employee because of the employee's genetic information, or the genetic information of an employee's family members. While it may seem legitimate to question whether Sarah Palin has the time to take on the Vice Presidency and effectively parent a special needs child, GINA instructs that such considerations are illegal.

WIRTW #46

With Ohio's Healthy Families Act officially dead, attention turns to legislation on the federal level. It is safe to say that if Barack Obama is elected President, employment law in this country will see its biggest transformation since perhaps 1964. On the horizon are landmark pieces of legislation, including the federal Healthy Families Act, the Employee Free Choice Act, the ADA Restoration Act, the Civil Rights Act of 2008, and the Lilly Ledbetter Fair Pay Act. The ABA Journal Daily News and Human Resource Executive Online have the details.

Work Matters, a blog I recently discovered, has an interesting take on race in the workplace.

The Business of Management points out that it is generally a bad idea to notify employees about a lay off via email.

The Delaware Employment Law Blog reports on the 10 best excuses for being late to work.

The Evil HR Lady gives some tips on how to handle an employee who frequently skips out of work because of headaches.

The Labor and Employment Law blog lists 8 steps employers should take to comply with HIPAA.

Fair Labor Standards Act Law talks about Kimoto v. McDonald's Corp., in which a California federal court refused to certify a wage and hour class action.

Finally, Workplace Prof Blog gives its opinion on a 3rd Circuit case which held that a Spanish-speaking employee could be bound by an arbitration agreement written in English.