Employee disloyalty and Facebook

Dan Leone was a lifelong fan of the Philadelphia Eagles. One could  only imagine that when his favorite team hired him as a game-day stadium employee, it was his dream job. Last week, the Denver Broncos signed free agent safety Brian Dawkins, the team’s emotional leader and one of the franchise’s historical great players. Upset with the Eagles’s decision not to resign Dawkins, Leone chose to vent on his Facebook page, updating his status: “Dan is [expletive] devastated about Dawkins signing with Denver. . .Dam Eagles R Retarted!!"

The Philadelphia Inquirer reports on the team’s termination of Leone:

Less than two days after posting the Dawkins remarks, Leone said, he was contacted by Leonard Bonacci, the team's director of event operations. According to Leone, Bonacci said they needed to talk about Leone's Facebook page, and Leone agreed. Leone - who deleted the comment - figured that the two would sit down and that he could apologize to Bonacci in person. But Leone said Bonacci never got back to him after that.

Two days later, Leone said, he received a call from Rachel Vitagliano, the team's guest services manager. Leone said she fired him over the phone. The conversation lasted less than 10 minutes.

No warning. No suspension. No face-to-face meeting. Just a quick call to tell Leone he'd been terminated.

All over the Internet, the Eagles are taking a beating for Leone’s. For example, according to an ESPN.com poll, 80.5% believe the Eagles were not justified in firing Leone.

Let me take the other side. It may seem heavy-handed for the Eagles to take a stand against a part-time seasonal employee. If an employer wants to effectively enforce policy, it has to do so across the board. The Eagles are sending the message that it will not tolerate its employees publicly making negative statements about the organization. While some will consider it unfair for this message to be sent at Leone’s expense, this employer will be better served the next time, when it is a high level front office employee instead of a part-time stadium employee. In employment law, consistency is key, and to be consistent, someone always has to be first.

Do you know? will return tomorrow, with a post on banning guns inside and outside the workplace.

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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.

Ohio Supreme Court to decide workplace breastfeeding rights

A few months ago I wrote on the lack of clarity under Ohio law on the rights of breastfeeding rights of moms at work. This week, the Ohio Supreme Court will take up this issue. It will hear the appeal of LaNisa Allen, a former employee of Totes/Isotoner, who sued the company for gender discrimination after it fired her for taking unscheduled restroom breaks to pump breast milk.

According to the Dayton Daily News:

She said other Totes workers weren’t required to seek permission for extra restroom breaks to relieve discomfort from menstrual symptoms or the need for frequent urination.

Allen’s attorneys say it’s gender discrimination because she was fired to relieve discomfort due to lactation, a condition exclusive to women.

Totes, which prevailed against Allen in a 2008 trial and a subsequent appeal, argues that the company didn’t discriminate because breastfeeding doesn’t legally constitute an illness or medical condition. The company says there is legal precedent showing that employers don’t have to give extra breaks to breastfeeding women.

This case should hinge on the answers to these questions: Are men allowed to take a break when nature calls? Has Totes ever fired a male employee for going to the bathroom? What about the treatment of employees who take smoke breaks during the work day?

A rule against breaks for lactation will, by its very nature, only apply to women. If Totes does not similarly discipline non-lactating employees who take breaks of similar duration during the work day for other reasons, it should have a hard time justifying Allen’s termination.

Before you institute a policy prohibiting pumping at work, or terminate a lactating employee, consider how you’ve treated other employees’ breaks during the work day. If you can’t find a consistent pattern of discipline or termination of similar non-lactating employees, you should reconsider the decision.

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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 #69

Social networking (whether blogging, Facebook, LinkedIn, Twitter, or the myriad other available options) remains a hot topic for HR departments everywhere. My fellow bloggers have lots of good information on this topic this week:

• The Connecticut Employment Law Blog, on how to properly manage employees’ use of Twitter.

• The Delaware Employment Law Blog, on using Facebook profiles in litigation against former employees.

• Evil HR Lady, on the pluses and minuses of blogging for employees.

• California Workforce Resource Blog, on the value of Googling job applicants.

This week brought us the new regulations on the Genetic Information Non-Discrimination Act, which the LawMemo Employment Law Blog conveniently links for everyone.

The Washington Labor & Employment Wire reports on the introduction of the Arbitration Fairness Act of 2009, which would invalidate all pre-dispute arbitration agreements mandating the arbitration of any employment or civil rights disputes.

The Business of Management reminds employers to be diligent with departing employees’ proprietary information.

HR World gives some information on how to handle hourly employees whose shifts overlap this weekend’s time change.

This week’s review ends with some good news: Where Great Workplaces Start, the blog of the Employers Resource Council, reports on some recent job creation numbers for Ohio.

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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.

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.