UPDATE: House passes ADA Amendment Act; President expected to sign shortly

The Connecticut Employment Law Blog and World of Work have the details.

For my earlier thoughts on these amendments, see House overwhelmingly votes in favor of ADA Amendments Act of 2008.

The Ohio Healthy Families Act is dead, but what's next?

Aside from being key battleground states in the 2008 election, Ohio and Colorado have another similarity, one to which employers in our state should pay attention.

In 2006, both states' voters passed ballot initiatives that amended their respective state constitutions to provide for a higher minimum wage. Why, you might be asking, should Ohio businesses care about what Colorado voters did two year ago? Because both minimum wage ballot initiatives were union-backed, as was the Healthy Families Act, and as are four different measures on Colorado's ballot this fall that should have businesses scared for their lives. According to Business Insurance, Colorado employers are fighting four proposed constitutional amendments on November's ballot that would devastate businesses in that state, by:

• Eliminating "at will" employment and requiring private employers to have a "just cause" with supporting documentation before terminating employees.
• Mandating that all companies with 20 or more employees provide health insurance for workers and dependents.
• Removing workers compensation's "exclusive remedy" provision, and permitting injured workers to collect workers comp benefits and sue their employer.
• Holding corporate officials criminally liable for illegal company activities.

Ohio businesses quickly mobilized against the Healthy Families Act, and should be commended for their efforts to defeat it. Imagine, however, the devastating cumulative effect of no more at-will employment, mandatory health insurance, and private lawsuits for workplace injuries. Companies need to stay vigilant in their efforts to keep Ohio business-friendly, and combat the type of job-killing ballot initiatives that labor organizations are testing in Colorado. Do not think for a second that if one or more of these Colorado initiatives are successful that we won't see some combination of them in 2010.

As long as labor organization can place transparently populist anti-business measures on the ballot via petition drives, we need to be mindful of what is happening in Colorado and fearful that it will come our way in the next election cycle.

Do you need to control employee blogging?

Washington Redskins Tight End Chris Cooley apparently (and accidentally) posted pictures from the team's playbook on his blog. The Washington Post quotes Skins Head Coach Jim Zorn:

It "is quite interesting, I think for all coaches in today's technology-sound world," Zorn said. "At any level, not only the NFL level, but at any level there's MySpace, Facebook, there's blogging. I just think it's something that most coaches have never had to deal with or have dealt with. This will be my first experience. There's no rules, there's no laws.

"I think the rule of thumb that I'm going to have to contend with here is that if you have your own blog, and you're putting photos or you're even saying anything, that nothing really should be put in there that has Redskins playbook [on it]. That goes without saying. I think Chris used a little bit of poor discretion using that type of prop, if you will."

As this story illustrates, you can't always trust good intentioned employees to use good judgment, never mind disgruntled employees who want to harm your business. Coach Zorn says that there are no rules, but that does not have to be the case in your organization.

Companies should consider accounting for employee blogs and other social media in overall technology use policies. Do you want employees to blog at all? If not, say so in a policy. If so, consider implementing clear guidelines employees can follow about what they are and are permitted to say.

I also recommend taking a look at Dan Schwartz's (of the Connecticut Employment Law Blog) five tips for drafting a corporate blogging policy:

1. Employees can be instructed that they should not comment or use any confidential information about the company or discuss internal matters. (Whether the employee should be allowed to identify the employer is a business decision for the company.) 
2. Employees should be told that blogs should be done during non-working hours and not using Company resources, unless authorized by the company.
3. Employees should be told that the blog should have appropriate disclaimers that indicate that all views on the blog are those of the individual and have not been reviewed or approved by the [company].
4. Employees should be told that the blog should not imply sponsorship, endorsement or support by the company, nor should the blog use any logos or trademarks of the company.
5. Employees should be instructed that the blogs should not be libelous or defamatory, and that the blogs should avoid being written in a way in which it could be construed as harassing or discriminatory on the basis of a protected category.

Without some clear guidelines in place, employees don't know what's permissible and what's not, and like Coach Zorn, employers feel like they don't have and rules to fall back on. Common sense simply doesn't always work.

Senate unanimously passes amendments to ADA

Last week, the Senate unanimously passed the ADA Amendments Act (S. 3406). It is similar to the bill the House passed 402-17 earlier this year. Given this widespread bipartisan support, it is likely that we might see the first Democratically-driven employment law changes before President Bush leaves office. By doing so, this President Bush would expand upon the law first enacted by his father in 1990.

The highlights of the bill defines "substantially limits" to mean "materially restricts," it specifies examples of major life activities, and expands upon them to include major bodily functions, and helps employers by exempting from "regarded as" claims transitory or minor impairments that last or are expected to last for 6 months or less.

The biggest changes, though, will come to the definition of "disability" itself. In Sutton v. United Airlines, the Supreme Court held that whether an impairment substantially limits a major life activity is to be determined with reference to the effects of mitigating measures on the impairment. If this bill becomes law, it will reverse that ruling, and require the determination of whether an impairment substantially limits a major life activity to be made without regard to the ameliorative effects of mitigating measures.

[Hat tip: Workplace Horizons]

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.