A call for the reform of ballot measures

It's so nice when labor and business gets together to make a common sense decision for the betterment of all. Last month, Ohio's labor unions and business organizations compromised on the removal of the Healthy Families Act from November's ballot. Now, Colorado's unions and employers have done the same on its four controversial ballot measures.
The Denver Post reports that labor and management have reached an accord that will remove the following four issues from its ballot:

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

Look, these ballot initiatives are scary. In Ohio, one labor organization only needed 250,000 signatures to place the populist, yet very dangerous, Healthy Families Act on the ballot. A system that can be so easily hijacked by special interests looking to push an agenda needs to be fixed. Supposedly, we elect legislators to enact, and a governor to sign or veto, legislation. They are supposed to speak as the collective majority will of the electorate. Yet, the legislature and the governor would have had no say-so if 50% plus 1 voted in favor of the Healthy Families Act.
One possible fix is a super-majority (60%?) to pass a ballot initiative. Another is to require many more signatures than the relatively small number that currently suffices. A third option is to eliminate ballot initiatives altogether. On balance, the super-majority option seems to makes the most sense - it preserves the sanctity of our separation of powers, allows the populace to still have a direct say on issues they it deems to be of great importance, and limits the ability of dangerous laws to play to populist sentiments.
This change is necessary to protect our state's economy from what is coming down the pike in two years when labor unions begin gathering signatures for the next anti-business ballot measures, such as those that were recently removed in Colorado.

Determining the 12-month period for FMLA leave

The FMLA allows eligible employees to take 12 weeks of unpaid leave during any 12-month period. Don't assume, however, that the FMLA's 12-month period equates to a calendar year. In fact, the FMLA allows employers to choose from four different methods of calculating the 12-month period:

1. The calendar year.
2. Any fixed 12-month "leave year," such as a fiscal year, a year
   required by State law, or a year starting on an employee's
   anniversary date.
3. The 12-month period measured forward from the date any
   employee's first FMLA leave begins.
4. A "rolling" 12-month period measured backward from the date an
   employee uses any FMLA leave.

Employers are free to choose any one of these four methods, as long as the choice is applied consistently and uniformly to all employees. Once a company picks one, it cannot change to another without first giving all employees at least 60 days notice, and only if the change does not cause any employees to lose any leave time.

There are pluses and minuses to each of these options. The first two  options are definitely the easiest to administer. However, they could allow for employees' double-dipping. An employee with a serious health condition could take 12 weeks of leave at the end of the year and 12 weeks at the beginning of the following year (provided the employee recertifies the need for the leave). The same 24-week problem could impact option three.

Under option four, each time an employee takes FMLA leave the remaining leave entitlement would equal any balance of the 12 weeks that had not been used during the immediately preceding 12 months. For example, if an employee has taken eight weeks of leave during the past 12 months, an additional four weeks of leave could be taken. If an employee used four weeks beginning February 1, four weeks beginning June 1, and four weeks beginning December 1, the employee would not be entitled to any additional leave until February 1 of the next year. However, beginning on the next February 1, the employee would only be entitled to four weeks of leave, with an additional four to accrue on June 1. and then again on December 1. This method offers employers the most flexibility, but is clearly the most difficult to administer and track.

Importantly, you have to designate one of these options. If an employer fails to do so, a court will apply the option that provides the most beneficial outcome for the employee.

Intermittent leave allows for recertification of the serious health condition each year

Let's say you have an employee who suffers from chronic migraine headaches. She applies and is approved for intermittent FMLA leave on September 24. Your company uses the calendar year to calculate FMLA eligibility benefits. During her period of intermittent leave, her condition worsens and she takes an extended period off, which lasts into the beginning of the next calendar year. Because you assume that FMLA eligibility cannot carry over from one year to the next, you ask the employee to recertify her need for FMLA leave as of January 1. When she fails to do so, you begin counting her absences as unexcused, and ultimately terminate her for excessive absences.

When the inevitable lawsuit is filed, are you correct that FMLA eligibility expires at the end of the FMLA year? Can you require the employee to recertify the need for the leave at the beginning of the next FMLA year, and legally deny further leave if she fails to do so? According to the 6th Circuit in Davis v. Michigan Bell Tel. Co. (9/29/08), the answer is yes:

[A] series of absences, separated by days during which the employee is at work, but all of which are taken for the same medical reason, subject to the same notice, and taken during the same twelve-month period, comprises one period of intermittent leave. That leave, however, can only extend to the end of the twelve-month FMLA period in which it began. Once a new twelve-month FMLA period begins, any additional absences caused by that same chronic condition would constitute a new period of intermittent FMLA leave. Otherwise, there would be no point at which the initial period of intermittent FMLA leave ended and a new period commenced. Under that scenario, employees would never have to reestablish their eligibility for FMLA leave and would therefore be perpetually entitled to twelve weeks of FMLA leave per year based on a single eligibility determination. (internal quotations and citations omitted).

Thus, absences caused by the same chronic condition, but occurring in different twelve-month FMLA periods, constitute different periods of FMLA leave. If a company has an employee with a chronic condition that spans two years, it can legally re-determine the employee's FMLA eligibility at the beginning of each leave year, according to the Davis opinion.

This opinion has significant implications on how an employer chooses to calculate the FMLA leave year, an issue we'll look at tomorrow.

New Ohio minimum wage rate

Ohio's minimum wage law calls for the state minimum wage to increase by the annual rate of inflation each January 1. On September 30, the Ohio Department of Commerce announced that the new minimum wage effective 1/1/09 will be $7.30 per hour. Stash this tidbit away for when the calendar turns.

WIRTW #50

Tattoos seem to be hot issue this week. In addition to my post on this topic, The Pennsylvania Labor & Employment Blog, The Word on Employment Law, and The HR Capitalist all provide their own points of view.

Human Resource Executive Online has a nice summary of the various employment law ballot issues around the country. Why should Ohio companies care what is going on in other states? Because it may foreshadow what's next for Ohio.

Do you want to put yourself in the best position possible in litigation? Take the advice of the Manpower Employment Blawg and tell the truth.

The Delaware Employment Law Blog reports on a settlement that cost a company more than $300,000 for the acts of a bullying employee.

In a similar vein, On Point gives its thoughts on a $101,500 verdict in a sexual harassment claim brought by a barmaid for "Animal House"-type behavior at her workplace.

BLR's Daily HR Advisor lists 25 forbidden interview questions. I've previously written on how to avoid hidden interviewing traps.

Law.com discusses the difficulties inherent in trying to discover online data in litigation.

A second opinion on terminating the chronic complainer

There is perhaps nothing scarier to an employer than an at-risk employee who complains about discrimination. Many employees complain because they think it affords them some level of job protection, and many employers become gun shy in pulling the trigger for fear of a retaliation lawsuit.

A couple of months ago, I discussed Butler v. Alabama Dept. of Transportation, which gave employers hope that all is not lost when considering terminating a chronic complainer. Magyar v. Saint Joseph Regional Medical Center (7th Cir. 9/12/08) provided a different take on this issue, and serves as a cautionary tale for companies that want to terminate an employee who complains about discrimination.

Jessica Magyar worked as a hospital scheduler. Two times, a co-worker named Carl, 30 years her senior, sat in her lap and whispered to her that she was "beautiful."  Magyar reported the incidents to her immediate supervisor, Goddard, who then spoke to Carl but did not follow-up with Magyar.

While the harassment temporarily stopped, Magyar feared "that at any moment there might be a third incident." Thus, two months later she went to the Hospital's General Counsel and complained about Goddard's failure to respond to the complaint. Goddard then followed-up with Magyar, who secretly tape recorded the conversation. Approximately a week later, Goddard informed the GC that Magyar's issues "are resolved."

In the meantime, Goddard combined Magyar's job with that of another part-time employee. With the creation of the new position, Magyar received no further work and was eventually terminated. She then sued for retaliation.

The majority opinion found that Magyar's complaint up the chain of command constituted protected activity:

We note that, to succeed on a retaliation claim, Magyar need not prove that the underlying conduct she perceived as sexual harassment actually was serious enough to constitute a Title VII violation. Instead, she need only show that, when instituting her grievance, she had a "sincere and reasonable belief" that she was opposing an unlawful practice.... In this case, the record sufficiently demonstrates that Magyar subjectively felt that she had been sexually harassed.... Having a man old enough to be her father plop into her lap and put his lips to her ear to whisper “you’re beautiful” is the type of occurrence that, if it happened often enough, could constitute sexual harassment, and so Magyar's grievance was objectively reasonable.

In a strong dissent, however, Judge Posner takes the majority to task for missing the distinction between complaining about harassment and complaining about the handling of a complaint of harassment:

Magyar was complaining to the general counsel not of having been sexually harassed (she mentioned the alleged harassment only by way of background, for that grievance had long since been resolved), but of Goddard’s handling of the grievance.

Even more troubling to Judge Posner, however, was that Magyar seemed to be setting up the hospital for a lawsuit:

Shortly after the meeting with Goddard of which Magyar now complains (the meeting in which she revealed the sexual assault), she emailed Goddard saying: "Thank you ... so much for listening and understanding. You made me feel a lot more comfortable when I left. Thanks :)"

The only possible explanation for Magyar's dramatic swerve from being pleased with Goddard's handling of the situation (the smiley-face email) to litigation planning, complete with an illegal secret tape recording, is that she saw that she was about to lose her job. Otherwise the two-month interval between the meeting with Goddard that is the core of her complaint about Goddard's handling of the harassment grievance and the meeting with the general counsel makes no sense.

My friends at the Workplace Prof Blog take Judge Posner's side:

It seems that Judge Posner is correct. Magyar's complaint about the processing of her sexual harassment complaint  is not protected activity under Title VII. An internal investigation is not a practice made an unlawful employment practice by Title VII. It is rather a complaint about the handling of an internal investigation which is an internal business decision.

I do not think the analysis of this case is so simple. A complaint about the handling of a harassment complaint should count as protected activity. If an employee cannot complaint up the chain of command about a manager's handling of a harassment complaint, there would be little accountability or oversight for how a company adjusts the complaint. The company would always be able to hide behind the "internal business decision" defense and act with impunity towards the employee who takes issue with the harassment investigation. Even more troubling to me is Judge Posner's weighing of the facts on summary judgment. Yes, there are concerns about Magyar's motivation given the timing of her conduct and her surreptitious recording. Yet, aren't these facts that should be weighed and resolved by a jury?

For businesses, the takeaway from this case is that any employee who complains about discrimination or harassment should be treated with extra care. It does not mean that such an employee cannot be terminated. Any such termination, however, must be carefully deliberated and meticulously documents, your attorney should be consulted before reaching a decision, and you should brace yourself for the likely prospect of defending a retaliation lawsuit.

Employment decisions based on tattoos are not discriminatory

Last week I was having lunch in the Tulsa airport, and saw a woman with green hair, a bull ring through her nose, and at least a dozen large tattoos. I turned to my partner and asked, "Who would ever hire her?" Apparently, a lot of employers are asking the same question.

According to last Wednesday's New York Times, courts continue to find policies prohibiting tattoos and body modifications to be nondiscriminatory.

While there is ample evidence of tattooing’s migration from the backwaters of alternative culture into the mainstream (or at least onto some part of David Beckham’s body), we are still a long way from seeing facial tattoos on the selling floor at Bloomingdale’s or the trading floor of the stock exchange.

In case after case, the courts have found on-the-job appearance requirements — including policies forbidding tattoos and body modifications — to be nondiscriminatory.

Among the better publicized cases was that of Kimberly Cloutier, a Massachusetts woman who sued for the right to wear her 11 earrings and eyebrow piercings while at work as a Costco cashier. Claiming membership in the Church of Body Modifications, Ms. Cloutier argued her piercings were a form of religious expression. Although she ultimately lost, her case was soon followed by others in Massachusetts and in Washington State.

There is nothing discriminatory on its face about refusing to hire the green-haired, tattooed, or pierced. It is simply a decision of the type of image that your company wants to project. Of course, it matters that such a policy is applied non-discriminatorily. In other words, a company can't have two standards to visible body art -- one for men and one for women, or one for whites and one for blacks. So, to answer my question, a company should not be liable if it rejects the green-haired airport barfly because of her unique appearance.