WIRTW #60

What I’m Reading This Week will be taking the rest of the year off to recharge it’s batteries. After today’s column, this feature will return January 2 with a special round-up of the best from the blawgosphere's holiday season. As for this week’s most interesting posts…

An Op-Ed in today’s Wall Street Journal by University of Chicago law professor Richard Epstein poses that the Employee Free Choice Act is unconstitutional.

The Connecticut Employment Law Blog provides some pointers on handling your workforce in bad weather.

The Pennsylvania Labor & Employment Blog has some more information on wage and hour issues with year-end bonuses.

The Delaware Employment Law Blog gives some tips on avoiding problems at office holiday parties when alcohol is involved.

The Labor and Employment Blog suggests who should be conducting workplace investigations.

World of Work reports on a big win for Starbucks in a class action lawsuit that challenged its employment application as unlawful.

Law.com draws some employment law lessons from the presidential campaign.

HR World points out that the number of employment lawsuits filed is inversely proportional to the health of the economy.

George’s Employment Blawg has the top 10 things someone doesn’t want to do during a job interview.

Finally, two bits of positive news on the Employee Free Choice Act:

• EFCA Updates reports that Rev. Al Sharpton has come out against the EFCA.

• Also from EFCA Updates comes news that at least a few Democratic Senators are starting to have doubts about the EFCA.

I’ll be back next week with the latest from the world of labor and employment law, in addition to starting my countdown of the top 10 labor and employment law stories of 2008.

Presented by Kohrman Jackson & Krantz

An early holiday gift from the Department of Labor – Revised FMLA forms for the new FMLA regulations

Hot off the presses from the Department of Labor are the following documents to use when the new FMLA regulations go into effect on January 16, 2009, linked for your holiday enjoyment:

• A revised Family and Medical Leave Act (FMLA) poster.

• Certification of Health Care Provider form for an Employee’s Serious Health Condition (WH-380E).

• Certification of Health Care Provider form for a Family Member’s Serious Health Condition (WH-380F).

• The DOL’s Notice of Eligibility and Rights and Responsibilities form (WH-381).

• Designation Notice to Employee of FMLA Leave (WH-382).

• Certification of Qualifying Exigency for Military Family Leave (WH-384

• Certification for Serious Injury or Illness of Covered Servicemember for Military Family Leave (WH-385).

For information on what all these forms mean and how they should be put into practice beginning on Jan. 16, click on over to New FMLA Regulations: What do they mean to notice and designation obligations to employees?

“Ugly” as a protected class? Let’s get real.

Let’s review the currently protected classes. Under the current state of the law, it is illegal to discharge, to refuse to hire, or otherwise to discriminate with respect to hire, tenure, terms, conditions, or privileges of employment, or any matter directly or indirectly related to employment because of: race, color, sex, religion, national origin, ancestry, age, disability, genetic information, military status, and veteran status. I am fairly confident that 2009 will add sexual orientation, and possibly gender identity, to this list.

According to Workplace Prof Blog, some researchers are beginning to suggest that we also add “ugly” to this list:

Researchers, including lawyers and economists, have begun examining ugliness, suggesting that the subject has been marginalized in history and that discrimination against the unattractive is a silent, widespread injustice…. "Beauty and the Labor Market," a study published in the American Economic Review in 1994, estimated that unattractive men and women earn five to ten percent less than those considered attractive or beautiful, and that less attractive women marry men with less money. Another study conducted by Tanya Rosenblat, an associate professor of economics, said "people who are physically attractive might develop better communication skills because the tendency is that from an early age they get more attention from all their caregivers, including their own mothers onward. The conclusion: discrimination based on looks occurs across occupations….

Steadily playing off of insecurities and implications, Dr. Synnott states: "Beautiful people are considered to be more intelligent, sexier, and more trustworthy.  And this implies that ugly people are assumed to be less trustworthy and less intelligent."

He notes that while few current laws prohibit employment discrimination based on lack of attractiveness, at least two California cities (San Francisco and Santa Cruz) have such a law on their books.

Let’s get real for a second – nothing is more subjective than beauty. Voltaire said, “Ask a toad what is beauty....; he will answer that it is a female with two great round eyes coming out of her little head, a large flat head, a yellow belly and a brown back.’” If we engaged this folly and legislated ugliness as a protected class, whose eyes would be the judge and jury?

Folly aside, this notion nevertheless serves a good reminder that we, as employers, should be making employment decisions based on ability and merit, not innate characteristics over which a person has no control, whether it’s a protected class such as race or an unprotected class such as attractiveness. Consistent merit based decisions not only serve as the best defense against lawsuits, but also save us from the notion that we need more protected classes.

How to avoid a discrimination lawsuit in 5 easy steps

1. Don’t change your explanation about why an employee was fired mid-stream while in the midst of defending a discrimination claim.

2. Don’t refuse to assign meaningful work to a Muslim employee while at the same time keeping non-Muslim employees busy, or fire an employee for alleged lack of work, while at the same hiring others to perform the same exact assignments.

3. Don’t suggest to others that you speak over the phone about the employee, which suggests that you are trying to avoid a written record that can later be used against you.

4. Don’t tell people on 9/11 that “those people don’t belong
   here.”

5. Finally, and most importantly, don’t refer to a meeting about a Muslim employee’s supposed poor performance and termination as a “sand-nigger pile on.”

One Chicago law firm, in Hasan v. Foley & Lardner LLP (7th Cir. 12/15/08), failed to follow this advice. Remarkably, the district court, when faced with this mosaic of evidence, granted summary judgment to the employer. The 7th Circuit, however, reversed and sent the case back for trial:

Mr. Hasan submits that the facts in the record, while possibly weak proof of discrimination individually, together would allow a jury to infer that Foley terminated his employment because he is Muslim and of Indian descent…. Those facts include Simon’s and Hagerman’s anti- Muslim comments, Mason’s warning to Jaspan about Mr. Hasan’s religion, the suspicious timing of the downturn in his hours and evaluations following September 11, one partner’s testimony that Foley fired no other associates for economic reasons and did well financially in 2001 and 2002, the Business Law Department’s treatment of its other Muslim associates and Foley’s shifting justifications for firing Mr. Hasan….

The record shows that Simon attended the meeting at which the partners decided to fire Mr. Hasan and that he participated in that decision. That others were also involved in making that decision does not make Simon’s participation irrelevant…. There is also evidence in the record that Simon’s criticisms at that meeting incited anti-Muslim and racially charged commentary from other partners. Vechiola’s description of the meeting as a “sand-nigger pile on” suggests as much, as does Pfister’s comment that Simon had targeted Mr. Hasan just as he had targeted another lawyer, albeit unsuccessfully. Viewing the facts in the light most favorable to Mr. Hasan, the record would allow the rational inference that Simon not only participated in the decision to fire Mr. Hasan but also may have instigated it.

This case might not necessarily break new legal ground, but it is a good reminder that even those that should know better sometimes slip, and how a lapse in judgment can come back to bite an employer.

[Hat tip: MMMG Law Blog]

Do you know? Ohio’s Civil Theft Statute

Do you know? Ohio has a specific statute that allows for one to sue civilly for theft. Not only can one recover the amounts stolen, but also three-times that amount as liquidated damages. Because of this penalty provision, Ohio’s civil theft statute is a powerful tool to combat employee theft.

Ohio Revised Code 2307.61 is Ohio’s civil theft statute. It permits recovery for theft and willful damage of property. In addition to compensatory damages for the value of the property stolen or damaged, it also allows for the recovery of three times the value of the property as liquidated damages.

Moreover, it the amount at issue is less than $5,000, the owner of the stolen property is also entitled to recover costs (which includes the cost the written demand for payment, postage, and court costs) and attorneys’ fees if the following three conditions are met:

1. A written demand, via certified mail, for payment must be made at least 30 days prior to filing suit.

2. The written demand must identify the alleged theft offense, inform that suit will only be brought if repayment is not made within 30 days, and advise that the suit could result in a potential judgment that could include costs and attorneys’ fees. 

3. Repayment is not made or an agreement to repay is not reached within the 30-day period.

Pursuing a claim under this statute is not without some risk. If the defendant (for example, the employee accused of theft) prevails, he or she is entitled to recover the cost of defending the civil action plus any compensatory damages that may be proven. Because of this risk, it is important that an employer considering pursuing a civil theft claim has conducted a full investigation and is reasonably confident in its right to recover.

‘Tis the season… for employee theft

According to last week's Wall Street Journal Career Journal, theft by  employees may be reaching epidemic proportions.

In the wake of the recession, more businesses are facing a growing financial threat: employee theft. New research shows that employers are seeing an increase in internal crimes, ranging from fictitious sales transactions and illegal kickbacks to the theft of office equipment and retail products meant for sale to customers.

Employers suspect that workers are pilfering from them to cope with financial difficulties at home or in anticipation of being laid off.

What's more, it's often the most trusted workers who are committing the thefts….

Employers are hot targets for theft because workers “know their systems, controls and weaknesses, and they can bide their time waiting for the right opportunity,” says Mark R. Doyle, president of Jack L. Haynes International Inc., a provider of workplace crime-prevention services based in Fruitland Park, Fla.

Consider the following statistics:

• 20% of employers say workplace theft has become a moderate to very big problem recently.
• 18% have noticed a recent rise in monetary theft among employees, such as fraudulent transactions or missing cash.
• 24% have detected an increase in stolen nonmonetary items, such as retail products and office supplies.
• 25% of all reported internal frauds are committed by senior-level employees with an average tenure of 7½ years.
• In 2007, 1 out of every 28 employees was caught stealing, an 18% increase from the prior year.

What can employers do to curb this disturbing trend? I suggest a five-step attack:

1. Communicate: Employees need to know that theft of any nature and in any amount simply will not be tolerated. This message should be delivered in writing through the employee handbook or a stand-alone corporate ethics policy. Also, it is incumbent upon the highest levels of management to set a good example for all employees to follow. The best defense against employee theft is fostering an environment of ethics and integrity.

2. Investigate: Proper investigation requires having the tools in place to detect theft or fraud and acting swiftly when misconduct is discovered. Proper tools include surveillance cameras, tracking devices, and routine audits of books and records. Also, if something just doesn’t look right (has an employee started submitting unusually large expense reports without sufficient documentation, for example?) ask questions. Don’t just assume that a good employee cannot succumb to temptation. A company may also want to consider bringing in a third-party to conduct the investigation, depending on the sophistication and amount of the theft.

3. Document: Once a theft is detected, a company has to act swiftly to complete a full investigation. This investigation includes interviewing any potential witnesses and gathering all necessary documents to support to a case against the employee. Documentation is key both to support a termination decision and to go after an employee for restitution. Companies should also consider filing a police report in cases of employee theft.

4. Terminate: No other form or discipline should be an option. Theft is a serious offense. It represents a total breakdown of trust between a company and an employee. If an investigation concludes that an employee has stolen from the company, that employee should be immediately fired.

5. Litigate: Employers have two choices – filing a civil lawsuit to recover the stolen funds or property, or seeking criminal prosecution. Companies can run these options in tandem, but in my experience overburdened prosecutors’ offices are less likely to pursue an indictment if a civil case is pending, since the company already has a way to be made whole. In considering whether the pursue legal action against an employee, companies have to balance the potential deterrent effect on current employees versus the potential negative effect on employee morale. Because of these concerns, litigation will not be appropriate in all cases of employee theft.

Tomorrow, we’ll examine one of the best tools Ohio employers have to combat employee theft through the courts, Ohio’s civil theft statute.

WIRTW #59

I had planned on doing an elaborate post on the inherent risks to employers from holiday parties. The Connecticut Employment Law Blog and the Pennsylvania Labor & Employment Blog beat me to it. Click on through for some timely and helpful tips on managing liability risk at your holiday party.

Staying on the holiday theme, the Delaware Employment Law Blog asks if employees with families receive better treatment at work during the holiday season.

A few posts this week follow-up on earlier posts of mine:

• Last month I reported on Anheuser-Busch, an NLRB decision that held that an employer can discipline employees for misconduct even though the employer learned of the misconduct by unlawful means (in that case, security cameras that the employer installed without bargaining with the labor union. Workplace Prof Blog reports that the D.C. Circuit has affirmed the NLRB’s decision.

• Workplace Prof Blog also reports that the Republic Windows sit-in strike has ended, with each employee receiving eight weeks’ severance, all accrued vacation pay, and two months’ health care. For my earlier thoughts on this issue, go to Union sit-in illustrates WARN Act.

• Last week’s WIRTW talked about the 10 things you should never put in an email. Roger Matus’ Death by Email follows up on his earlier list by giving us a checklist of 36 things to consider before hitting send.

The HR Lawyers Blog retorts that the bad economy has shifted employment lawyers from the employment agreement business into the severance agreement business. If you’re considering severance pay, also consider some severance benchmarking data presented by Compensation Force.

Workplace Privacy Counsel presents the first federal appellate court to uphold a termination based on content found on MySpace.

George’s Employment Blawg tells how to provide reasonable accommodation for employees with hearing impairments.

World of Work reports that Walmart has settled its Minnesota wage and hour case for $54.25 million.

The Evil HR Lady points out the dangers of operating without a written leave policy.

Finally, I present what has become a weekly roundup of Employee Free Choice Act posts:

• LaborPains.org tells us that the SEIU has set aside an astounding $10 million to “unelect” any politician that changes his or her position on the EFCA. I’ll probably have more thoughts on this issue next week.

• Workplace Horizons presents President Obama’s top 10 list for labor (are you surprised that the EFCA is number 1?).