Do you know? Ohio’s jury duty rules for employers

Do you know? Ohio has specific rules that govern how employers handle employees who are summoned for jury duty – Ohio Revised Code 2313.18.

Rule number 1 is simple. It is illegal for an employer to discharge, threaten to discharge, or take any disciplinary action that could lead to the discharge of any permanent employee summoned to serve as a juror, provided that the employee gives reasonable notice to the employer of the summons prior to the commencement of the employee’s service as a juror and if the employee is absent from employment because of the actual jury service.

Rule number 2, though, is counter-intuitive. It is illegal for an employer to require or even request an employee to use vacation time, or sick leave, or other paid time off for time spent responding to a jury duty summons, time spent participating in the jury selection process, or time spent actually serving on a jury.

Rule number 3 provides some relief for small businesses. If a company with 25 or fewer full-time employees (or their equivalent) has more than one employee summoned for jury duty within the same court term, the court must postpone and reschedule the service of the later-summoned employees.

Companies should take these rules seriously. Violations can be punished as contempt of court, and employees terminated in violation of this statute could pursue a wrongful discharge claim.

Drafting an appropriate social networking policy

According to a recent report published by the Pew Internet & American Life Project, the percentage of adults who use social networking sights such as MySpace, Facebook, and LinkedIn has more than quadrupled in the past four years – from 8% in 2005 to 35% in 2008. By age, the stats break down as follows:

• 18 – 24: 75%
• 25 – 34: 57%
• 35 – 44: 30%
• 45 – 54: 19%
• 55 – 64: 10%
• 65 & over: 7%

For American businesses, these numbers mean that a large quantity of workers have profiles on any number of social networking sights (yours truly included). They also mean that if your internet or technology policy does not cover the appropriate use of social networking and blogging you are leaving yourself potentially exposed for abuse, embarrassment, and potential liability. 

Let me offer a few thoughts on putting together a policy to cover employees’ use of social networking.

1. A blanket prohibition does not make sense. I am not a fan of draconian policies. They cause more harm than good. They are bad for morale, drive away quality employees, beg for violations, and hamstring employers into making personnel decision they might not otherwise want to make when the policy is violated. If the reality is that a large chunk of employees are social networking, employers should embrace this medium within reason.

2. Employees need to understand that with the ability to use social networking comes responsibility. If a profile can link someone to their place of employment, the employee cannot post anything that could potentially embarrass or otherwise reflect poorly on his or her employer. This policy is one of common sense. Posting where you went to college is acceptable, posting pictures of yourself drunk while in college is not.

3. Use while at work should be governed by a company’s general internet protocol. If a company permits limited personal use at work (which most should), then the same ability should be extended to employees’ social networking activities.

These types of policies are governed by one guiding principle – treat employees like adults and assume that they will return the favor until they prove otherwise.

[Hat tip: Delaware Employment Law Blog]

WIRTW #62

What are my contemporaries writing about this week? Let’s take a look.

George’s Employment Blawg and the National Law Journal both share their thought on whether recession-era juries will be good or bad to employers.

The HR Capitalist gives his opinion on whether fighting labor unions was good or bad for Starbuck’s corporate image.

The Pennsylvania Labor & Employment Blog provides a handy HR compliance checklist for the new year.

The Delaware Employment Law Blog continues its back to school course on the FLSA with a lesson on recordkeeping.

The Employment Law Blog answers why severance agreements always advise the employee to consult with an attorney.

Workplace Privacy Counsel breaks down privacy concerns in the new FMLA regulations.

KnowHR Blog reminds everyone that confidentiality is key during layoffs.

The Washington Labor & Employment Wire reports on two recent DOL opinion letters on wage and hour issues for tipped employees.

Human Rights in the Workplace discusses an interesting sex harassment case from our neighbors up north.

Tomorrow is “FMLA Day.” Is your company ready?

Tomorrow, January 16, is FMLA Day – the day the new FMLA regulations take effect. If a business is covered by the FMLA (it employs 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year), there are certain steps it should be taking to get ready for the changes.

1. Post the Revised FMLA Poster.

2. Distribute a revised FMLA Policy or make appropriate handbook amendments.

3. Take out of circulation old FMLA forms (Employer Response to Employee Request for FMLA Leave and Certification of Health Care Provider, for example), which are no longer legal to use.

4. Put into use the new form to notify employees of their FMLA eligibility, to be used within five business days of an employee’s request for FMLA leave or the employer’s other notice of the need for leave.

5. Put into use the two new medical certification forms, one for an employee’s own serious health condition, and the other for an employee’s family member’s serious health condition.

6. Put into use the new FMLA designation notice, which must be given to an employee within five business days after an employer has received sufficient information to determine whether an employee’s leave is covered by the FMLA.

7. Make sure that the appropriate forms are being used for military family leave – one for the certification of qualifying exigency and one the certification for a serious injury or illness of a covered servicemember.

8. Train all HR personnel, managers, and supervisors on the mechanics of the new FMLA regulations.

For more information on the key FMLA changes, you can review these earlier posts:

• Summary of new FMLA Regulations: 10 Key Changes.

• Summary of new FMLA Regulations: Military Family Leave.

• New FMLA Regulations: What do they mean to notice and designation obligations to employees?

Hooters sued for not hiring men

An alleged rejected male job applicant for a food server position at a Corpus Christi, Texas, Hooters has filed a class action sex discrimination lawsuit against the restaurant chain. He claims that Hooters refuses to even consider men for food server positions. According to the lawsuit:

Hooters attempts to circumvent the law by referring to its waiters as “Hooters Girls.” Hooters contends that since its food servers are Hooters Girls, males may not be employed in that role. Hooters is incorrect, since, in the stores, Hooters Girls’ primary function is to serve food and drinks. A male or female can perform this function and, therefore, Hooters is not entitled to the defense of bona-fide occupational qualification.

Because it is discriminatory on its face to refuse to hire an entire gender, Hooters will certainly rely on the “bona fide occupational qualification defense.” A BFOQ is a defense to discrimination based on age, sex, religion, or national origin (but, importantly, not race discrimination). It permits discrimination where the protected class (such as sex) is reasonably necessary to the normal operation of that particular business or enterprise. To qualify as a BFOQ, a job qualification must relate to the essence, or to the central mission of the employer’s business. A classic example of a BFOQ is safety-based mandatory retirement ages for airline pilots.

This case will largely hinge on the perception of the real nature of Hooters’ product – does Hooters sell sex or wings? If it’s the former Hooters win, the latter the plaintiff wins. The reasonable view is that Hooters sell wings by using the sex appeal of its servers. If this view prevails, then the plaintiff is probably out of luck.

If I was representing Hooters, I would advise it to give serious consideration to offering the plaintiff a position under the same conditions as it hires all of its female food servers. He would have to wear the same uniform and show off the same cleavage. His acceptance would show his lack of qualification, and his refusal it would show his true motivation for filing suit, while also likely cutting off his economic damages.

[Hat tip: Courthouse News Service, via Above the Law]

Do you know? “Comp” time in lieu of overtime

Do you know? Unless you are a state or local government, it is illegal to provide “comp” time in lieu of time-and-a-half for hours worked in excess of 40 in a work week.

Federal law requires that all non-exempt employees receive an overtime premium of one-half the regular rate of pay for all hours worked in excess of 40 in a given work week. To save on wages, some employers seek to provide overtime as “comp” time to employees. In other words, instead of paying an employee time-and-a-half for overtime worked, the employee would be paid the regular straight time rate, and receive an additional half-hour of paid time off to be banked and used in the future. Under the FLSA, this practice is illegal for private employers. It interferes with employees’ right to be paid their overtime premium.

For state and local governments, the FLSA has a specific provision that allows for the payment of comp time in certain circumstances, such as where it is provided for in a collective bargaining agreement or other agreement between the employer and employee.

For most employers, though, implementing a comp time program to skirt overtime obligations is a huge wage and hour no-no.

What do the recent ADA amendments really mean to employers?

A lot of ink has been spilled about the nuts and bolts of the amendments to the ADA. The amendments make some key fundamental changes to various definitions in the statute, such as to the definition of disability. So, for example, mitigating measures are no longer to be taken into consideration when determination whether an individual has a “disability.” (For more information on the ADA Amendments Act, see House overwhelmingly votes in favor of ADA Amendments Act of 2008).

Much of the ADA Amendments Act, though, is legal minutiae that may be of interest to employers litigating ADA lawsuits, but of little interest to employers running their businesses on a daily basis. Provided that job descriptions are up to date, supervisors are trained on reasonable accommodations and interactive processes, and employees are receiving appropriate accommodations, employers’ day-to-day experiences under the ADA should not change all that much.

So, what then will change? For businesses, the most significant change will be in the cost of defending ADA lawsuits. Most agree that the changes to the definition of disability will make it harder for employer to win dismissals of ADA cases on summary judgment. Because fewer cases will be summarily dismissed, more cases will go to juries for resolutions. This higher incidence of jury issues in ADA cases will increase both defense costs and settlement value in these cases. Because of the potential for increased costs, businesses should be prepared to be extra-vigilant in their handling of employees with potential disabilities.