Employee Free Choice Act to be Introduced in House next week; President vows support

ShopFloor.org, the blog of the National Association of Manufacturers, is reporting that the Employee Free Choice Act will be introduced next Monday, March 9, in the House of Representatives. This news is not that surprising. The EFCA will likely pass that half of Congress, where the Democrats enjoy a sizeable majority and the Republican minority cannot filibuster. The real fight, which could be unlike anything we have seen in a generation, will be in the Senate, where the EFCA’s supporters will face a fierce battle to reach the 60 votes they need to ensure its passage.

Until this week, the White House has been quiet on this issue. On Tuesday, in pre-recorded remarks to the AFL-CIO Executive Council, President Obama gave his support for the EFCA:

I want to repeat something that those of you who joined us for the Task Force announcement heard me say: I do not view the labor movement as part of the problem. To me, and to my administration, labor unions are a big part of the solution. We need to level the playing field for workers and the unions that represent their interests – because we cannot have a strong middle class without a strong labor movement….

And as we confront this crisis and work to provide health care to every American, rebuild our nation’s infrastructure, move toward a clean energy economy, and pass the Employee Free Choice Act, I want you to know that you will always have a seat at the table.

This language can be viewed one of two ways – pandering remarks to a partisan crowd, or a promise to pass and sign the legislation. Given the President’s words on this issue just prior to his inauguration, the truth is probably somewhere in the middle:

Regardless, there are certain steps companies should be taking now to prepare for the EFCA:

1. Foster open employee communication. Do what you can to give employees a reason not to look outside the workplace for a voice to air their concerns.

2. Train supervisors in how to deal with employee issues. Fairness, evenhandedness, and responsiveness are crucial in preventing unions from gaining a foothold.

3. Implement a no-solicitation policy to minimize union’s access to employees.

[Hat tip: Pennsylvania Labor & Employment Blog]

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

How not to fire an employee

Today, I’m going to tell you a little story. It’s about a stay-at-home mom who works part-time from home. She’s worked for the same company for over a year, and performed well. Every three months, the employer would renew her tenure for another three-month period. Recently, the mom asked for and received time some time off to deal with a medical issue of one of her children. While she was out on leave, she received an email from her manager telling her that her position was being eliminated and that her services would no longer be needed.

The legal issues in this vignette are relatively easy to spot: ADA (based on associational disability), FMLA (if she worked enough hours for the company), and GINA (depending on the nature of her child’s medical condition and whether her employer is in possession of genetic information).

This story, though, raises a larger issue. All legal issues aside, is this employee more likely or less to sue following her termination? According to the Settle It Now Negotiation Blog, there are four main reasons why an employee might file a lawsuit:

1. Feelings of unfair, insensitive treatment at the time of termination.
2. Lack of notice of the termination.
3. Certain groups – women and minorities - are especially likely to sue.
4. Perception of poor on-the-job treatment.

Our story violates at least the first three of these rules.

This employer, however, made one key mistake that helps fan the flames of bad feelings and could lead to a lawsuit – communicating the termination by email. Email is cold and informal, and should never be used to fire an employee.

The moral of this story – in preventing lawsuits by terminated employees, how the employee is fired is as important, if not more important, that why the employee was fired.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Do you know? Ohio law protects employers that give negative job references

There are more people looking for work than at any time in the last 25 years. If you happen to be one of the companies hiring at the moment, you will likely have more applicants than you will know what to do with. How do you sift the good candidates from the bad, those who were laid off through no fault of their own from those who were terminated for poor performance? References are one tool, yet many employers seldom provide them out of a mistaken fear that they can be sued for giving a poor one.

Do you know? Ohio has a specific law, R.C. 4113.71, that protects employers that give negative job references. One employer can give another employer information about an employee’s job performance without fear of liability, unless:

1. the former employer knows the information is false, or makes the disclosure with the intent to mislead, in bad faith, or with a malicious purpose, or

2. the information is provided in violation of the employment discrimination laws (for example, an employer gives good references to white employees and bad references to black employees).

Thus, the only catch in giving employment references is that the information must be truthful and non-discriminatory. Business should not fear accurately responding to inquiries from other business about past employees. The next time you are asked for a reference on a former employee, consider responding accurately and honestly. Who knows, you might get the same courtesy in return.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

A textbook example in handling a problem employee

Every now and then, a case comes along that gives HR departments everywhere a good reminder that a few extra steps in dealing with a problem employee can go a long way in defeating a later lawsuit. Kiraly v. Office Max (2/26/09), out of Cuyahoga County, is just such a case.

Imagine you have what you can only describe as a difficult employee. He refuses to follow work rules, and when his supervisor presses him on why it is important for rules to be followed, he calls the police and claims harassment. Then, out of the blue, he simply stops coming to work. In a phone call with HR, he blames a medical condition. In response, the employer asks for medical documentation, which it does not receive. It then extends two more times the deadline for the employee to document his medical absences. When the employee misses both deadlines, the employer fires him for job abandonment. 

At any step in this process, the employer would have had good reason to fire Kiraly – for insubordination, failing to follow policies, or absenteeism. Yet, this employer’s HR department wisely gave this employee every possible chance to correct his deficiencies. Maybe Office Max saw the lawsuit on the wall and wanted to give Kiraly every benefit of every doubt. Maybe it had good employment lawyers orchestrating a rock-solid defense behind the scenes. Either way, how Office Max handled Karaly’s termination left the court with no doubt that discrimination did not motivate this employer’s decision:

We find nothing to refute Office Max’s conclusion that Kiraly had abandoned his position with the company. The record indicates that it is standard practice for Office Max’s store associates to wear the wireless headset while working. The record also contains Kiraly’s signed acknowledgment of this practice.

The record further indicates that after Kiraly’s refusal to wear the headset and his subsequent absences, the company gave him three extensions to produce medical documentation to excuse these absences. Finally, the record indicates that despite the three extensions, neither Kiraly nor his attorney produced the requested documentation. 

The record fails to establish that Kiraly’s employment with Office Max ended because of national origin discrimination.

The next time you are faced with a problem employee, consider if you are positioned to put on a defense similar to Office Max. If you fear is that the employee will suddenly see the light and you will be stuck with him, usually, once a problem, always a problem. The odds are that he will fail in whatever corrective path you send him down, and in the process will create a solid defense to any later claim he might bring.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

WIRTW #68

The Department of Labor and the IRS have published the various information and forms necessary to carry out the new COBRA subsidy. The Pennsylvania Labor & Employment Lawyer Blog and World of Work has the details.

The Connecticut Employment Law Blog has information on whistleblower protection provisions of the economic stimulus law.

The Delaware Employment Law Blog reports on the various ways employers are using social networking sites.

The Business of Management draws a connection between falling girl scout cookie sales and prospects for the Employee Free Choice Act.

The Death By Email Blog gives some good examples on how not to quit a job.

Law.com, on the legal risks associated with mandatory furloughs to cut costs.

BLR’s HR Daily Advisor, on the importance on proactive wage & hour audits.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

EEOC to issue proposed GINA regulations

By week’s end the EEOC will issue proposed regulations implementing the employment provisions of the Genetic Information Non-Discrimination Act (GINA). The EEOC announced the regulations at a public meeting yesterday. Once the regulations are published, a 60-day period will begin in which the EEOC will accept public comment on the regulations.

Generally, the regulations provide guidance on GINA’s employment provisions, which prohibit employers from discharging, refusing to hire, or otherwise discriminating on the basis of genetic information, bar employers from intentionally acquiring genetic information about applicants and employees, and (3) impose confidentiality requirements on the handling of genetic information if it is acquired.

The Washington Labor & Employment Wire received an advance copy of the regulations, and gives some of the highlights:

• “Employee” is defined to cover current and former employees, and also applicants.

• Drug and alcohol tests are not considered “genetic tests” covered by the Act.

• Each of the six exceptions to the statutory sections prohibiting employers from acquiring genetic information are explained. Those exceptions are: (1) inadvertently obtained genetic information; (2) where the employer offers qualifying health or genetic services, such as a voluntary wellness program; (3) FMLA medical certifications; (4) commercially and publicly available documents; (5) monitoring of the effects of toxic substances in the workplace; and (6) DNA analyses for law enforcement purposes.

Notably, the EEOC is specifically asking for public comment on two issues that should be of particular interest to employers:

1. What constitutes “voluntary” with respect to an employer-sponsored wellness program? For example, if an employer ties smoking cessation therapy to lower employee health insurance costs, is the program voluntary? What if an employee enters drug treatment after a positive drug test?

2. What should be included in the “commercially and publicly available” exception, particularly with respect to blogs and social networking sites? Under this exception, an employer cannot research medical databases or court records for the purpose of obtaining genetic information. However, what if an employee undergoing cancer treatment writes a personal blog on the topic. Or, imagine a parent who belongs to a support group on Facebook for a child’s genetic condition. If an employer happens upon this information accidentally,it would seem unfair to penalize the employer for obtaining the information. It seems that the issue should hinge on what the employer does with the information after it is learned. Is it kept confidential? Is it used in making an employment decision about the employee?

Expect much more to be written about these regulations in the coming months as they are published and digested.

[Hat tip: Connecticut Employment Law Blog]

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

6th Circuit decides that the closeness of a relationship does not matter in “associational discrimination” claims

Last year, in Thompson v. North Am. Stainless the 6th Circuit recognized a claim under Title VII’s anti-retaliation provision for associational retaliation: “Title VII prohibit[s] employers from taking retaliatory action against employees not directly involved in protected activity, but who are so closely related to or associated with” employees who engage in protected activity(emphasis added). I remain critical of this standard for leaving open the issue of how close is close enough.

This week, in Barrett v. Whirlpool Corp. (6th Cir. 2/23/09), the same court was faced with another issue concerning the relationships between protected and unprotected employees. In Barrett, the Court decided that in claims of associational discrimination – that is, where one employee claims discrimination because of a relationship with protected employees – the degree of closeness between the employees simply does not matter. The only relevant issue is whether the employee is discriminated against because of his or her race:

If a plaintiff shows that 1) she was discriminated against at work 2) because she associated with members of a protected class, then the degree of the association is irrelevant…. The absence of a relationship outside of work should not immunize the conduct of harassers who target an employee because she associates with African-American co-workers. While one might expect the degree of an association to correlate with the likelihood of severe or pervasive discrimination on the basis of that association—for example, a nonprotected employee who is married to a protected individual may be more likely to experience associational harassment than one who is merely friends with a protected individual—that goes to the question of whether the plaintiff has established a hostile work environment, not whether he is eligible for the protections of Title VII in the first place.

The treatment of two different plaintiffs in this case illustrate how this standard works.

Lynette Barrett, Caucasian, was friends with African-American employees. Those African-American employees were targeted with what can only be described as offensive and inappropriate misconduct by other white employees – the n-word and other racial epithets, threats of violence, and racist jokes and graffiti. Barrett claimed that other white employees shunned her at work because of her friendship with African-American employees. She sued Whirlpool for harassment. Ultimately, Barrett lost on the merits of her claim. None of the offensive conduct was directed at her, and general snubbing does not support a harassment claim.

Treva Nickens, also Caucasian, was also friends with African-American employees and also witnessed offensive racial conduct at work. Unlike Barrett, however, Nickens had conduct directed specifically at her. After she complained to a supervisor, she was threatened with physical violence. She was also told on more than on occasion by different employees that she needed to stay with her own kind and was called a “nigger lover.” Like Barrett, the racist comments and jokes not directed at her did not support Nickens’s discrimination claim. However, more than Barrett, Nickens was the victim of direct harassment resulting from her associations with black employees - she received a threat of physical violence for reporting racist language and was subjected to a regular stream of offensive comments about her relationship with an African-American co-worker.

The Barrett case is a common sense application of the general rule in discrimination cases – was the individual treated differently because of his or [fill in the protected class]? Unlike Thompson, which went beyond the limits of the statute to create a claim, Barrett falls well within the bounds of what Title VII and the other employment discrimination statutes clearly protect. Moreover, the differing outcomes between Barrett and Nickens shows that this standard has teeth, and something more than a mere association is required to prove discrimination.