Preparing for the golden age of labor and employment law

As an employment lawyer, my practice has a lot of different aspects. I’m a counselor, helping clients tame workplace issues before they become problems. I’m a drafter, writing employee handbooks, policies, contracts, and forms. I’m an investigator, questioning employees involved in harassment and other complaints. I’m a trainer, guiding workforces, managers, and supervisors through the alphabet soup that makes up our labor and employment laws. I’m a negotiator, trying to amicably resolve employee disputes before they become fights. And, I’m a litigator and  trial lawyer, navigating companies through our state and federal courts and administrative agencies.

All these roles will be tested over the next several years. A liberal Congress, a Democrat President, and the worst economic downturn in 80 years have combined to create a world of problems for our nation’s struggling employers. The Ledbetter Fair Pay Act has already increased pay discrimination liability, and myriad layoffs have heightened the risk for age and other discrimination lawsuits. If Congress has its way, over the next several years the Employee Free Choice Act will make it significantly easier for unions to organize and bargain favorable first contracts, the FMLA will be expanded to cover smaller employers, and paid sick leave will become a reality. For these reasons, we may be at the dawning of the golden age of labor and employment law.

In light of all of these changes, it is critical that businesses not be caught unprepared. According to April 8th’s Wall Street Journal, “U.S. businesses, fearful of rising union influence and a crackdown by the Obama administration on workplace practices, are scrambling for legal advice and training.” Luckily for my readers, KJK is offering some of this advice and training for free. On May 13, my colleagues and I will present How to Stay Union Free in a Union-Friendly World, a free seminar on how to best position your non-union business to stay that way. Feel free to contact me for more information, or if you would like to attend.

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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.

Announcing the next KJK Breakfast Briefing: How to Stay Union Free in a Union-Friendly World

Join KJK’s Labor & Employment attorneys to learn How to Stay Union Free in a Union-Friendly World. Capitol Hill is gearing up for one of its most contentious fights in decades as Congress takes sides over the Employee Free Choice Act. If passed, the EFCA will radically alter our labor laws by making it much easier for unions to be certified (whether the change in law authorizes certification by way of a simple majority of signed authorization cards and without a secret ballot election, by an election after a much shortened period of time for the employer to campaign against the union, or otherwise). Even if the EFCA never becomes law, there are a lot of lessons to learn about how best to position your business to keep unions out.

We will not only discuss what the EFCA is and how it will affect your business, but also offer some essential tips on how to effectively manage your workforce to make union penetration less likely, no matter what form the new law ultimately takes. This free Breakfast Briefing is crucial for any business that is and wants to remain union free.

• Date: Wednesday, May 13, 2009

• Time: 8:00-8:30 Continental Breakfast
               8:30-9:30 Presentation
               9:30-10:00 Q&As

• Place: The Club at Key Center, 127 Public Square, Cleveland (on-site parking is free)

If you are interested in attending this free seminar, or for more information, please contact Andrea Hill, (216) 736-7234 or ach@kjk.com, by May 11, 2009.

Errata: Ohio does prohibit cost-shifting for pre-employment medical exams

Famed columnist William Safire once said, “Nobody stands taller than those willing to stand corrected.” I hope he’s right, because I feel pretty small right now.

Last week I stated that Ohio law is silent on the issue of whether an employer can charge an employee for a pre-employment medical exam. As it turns out, I was wrong. A colleague directed me to Ohio Revised Code 4113.21, entitled, “Employee shall not be required to pay cost of medical examination.” It provides:

No employer shall require any prospective employee or applicant for employment to pay the cost of a medical examination required by the employer as a condition of employment.

In other words, Ohio employers are absolutely forbidden from passing on the cost of pre-employment medical examinations to employees.

The penalty provision of this statute is also worth taking a look at:

Any employer who violates this section shall forfeit not more than one hundred dollars for each violation.

Assuming a routine physical costs more than $100, what is an employer’s incentive not to violate this provision by passing the cost onto employees and paying whatever lesser fines may come later?

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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? Legal risks in considering cancer survivors for employment

Cancer survivors are 37% more likely to be unemployed than their healthy counterparts. (See Cancer Survivors Struggle to Find Jobs, Study Finds). There are two likely explanations for this disparity: some cancer survivors are simply not healthy enough to return to work, while others become too expensive to employ because of the added health care costs. It is the treatment of the latter category that concerns me as an employment lawyer.

Pre-screening applicants with a history of cancer from consideration for positions raises two huge red flags: disability discrimination based on a record of an impairment or perceived impairment, and genetic information discrimination. Refusing to hire an applicant based solely on a history of cancer would almost certainly violate both the Americans with Disability Act (and its Ohio counterpart), and possibly the Genetic Information Nondiscrimination Act.

The best defense against this type of claim is not to gather medical information at the application or interview stage. Yet, even when an employer tries to avoid the topic, it can innocently arise. For example, when someone has a two-year gap on his or her resume, it is necessary to ask, “What were you doing for the two years you weren’t working?” For someone who was away from the workforce because of cancer treatments, the answer likely will reveal information that could lead to an inference of discrimination if the applicant is not hired. The best defense against these problems is two-fold:

1. Meaningful and effective training of interviewers so that they do not fall into these potential traps. For example, instead of asking, “Why weren’t you working?” ask, “What did you do during your gap in employment to keep your skills current?” The latter question will not only avoid the potential disclosure of medical information, but also provide some useful information about the applicant’s skill-set.

2. Ensuring that the best, most qualified person is hired to fill any vacancy, regardless of medical history and gaps in employment.

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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.

More on laying off the protected

Last month I provided some tips on how to properly layoff employees who happen to fall into a protected class. Last week, in Bell v. Prefix, Inc., the 6th Circuit helped drive home my point, and teaches some important lessons on proper layoff techniques.

Jonathan Bell claimed that Prefix included him a layoff in retaliation for a recent FMLA leave of absence he took to care for his dying father. Between July 22 and August 5, 2005, Bell took 3½ days of approved FMLA leave while his father was hospitalized for heart surgery. At the same time, Prefix’s new general manager began an ad hoc termination of employees to save money during a substantial downturn in business. Bell’s termination came August 8, just two weeks after the start of his FMLA leave and three days after his last FMLA absence.

In reinstating Bell’s FMLA retaliation claim for a jury trial, because a reasonable jury could conclude that Prefix held a retaliatory motive in terminating Bell. The court focused its decision on the collective strength of five pieces of evidence:

1. When Bell had to leave work after receiving an emergency call from the hospital, the general manager belittled him in front of his co-workers, and in a raised voice “accused him of ‘abandoning’ Prefix when there was work to be done.”

2. In discussing Bell’s termination, the general manager commented that he needed to work more hours.

3. The general manager’s comments about poor work quality are directly contradicted by Bell’s only written performance review.

4. The close temporal proximity between Bell’s FMLA leave and the termination.

5. The lack of any formal structure for the RIF, or the use of any objective process or criteria in selecting employees for inclusion.

This case teaches employers some very important lessons in how to conduct a RIF.

1. It is important to have some structure for the RIF, whether it is written criteria (objective or subjective), past performance, ranking of employees, or some other basis. A rationale that can be justified is needed for why one employees was RIFed over another.

2. Discussions about who will or will not be included should be kept to a minimum. This point rings even more true if the decision is solely based on some objective criteria.

3. Assume that any comments that can in any way be twisted to appear discriminatory or retaliatory will come back to haunt you in later litigation.

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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 #73

After last week’s glut of posts on the Employee Free Choice Act, I bring you this week’s EFCA-free WIRTW.

This week the Supreme Court held oral argument in Gross v. FBL Financial Services, which will hopefully give some much needed clarity on the proper standard for obtaining a mixed-motive jury instruction in discrimination cases. For details and analysis, read Marcia McCormick’s thoughts at the Workplace Prof Blog. Dan Schwartz at the Connecticut Employment Law Blog shares his insight as well.

Mark Toth at the Manpower Employment Blawg reports on the illegality of a policy that prohibits employees from working overtime while on light duty.

The Word on Employment Law with John Phillips provides some additional thoughts maternity and layoffs.

Eric Welter at the Laconic Law Blog reports on a poll finding that the FMLA is HR’s biggest headache.

Where Great Workplaces Start looks into the future and makes some predictions about the future of HR.

Christopher McKinney at the HR Lawyer’s Blog and Diane Pfadenhauer at Strategic HR Lawyer discuss careless twittering.

Finally, two blogs give their takes on The Office and the Michael Scott Paper Company: Rob Radcliff at Smooth Transitions and Michael Elkton at Trading Secrets.

 

 

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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.

Think before having employees sign that arbitration agreement

Yesterday, the Supreme Court issued its opinion in 14 Penn Plaza v. Pyett, which enforced a provision in a collective-bargaining agreement that required union members to arbitrate statutory discrimination claims. My fellow bloggers have already provided some thoughtful analysis of this opinion – Michael Moore at the Pennsylvania Labor & Employment Blog, Michael Fox at Jottings By An Employer’s Lawyer, and Richard Bales at the Workplace Prof Blog.

The bigger question for employers to think about, though, is whether arbitration of employment claims makes business sense. Companies and their lawyers often use mandatory arbitration of employment claims for two reasons: (1) as a cost-effective alternative to court; and (2) as an insurance policy against runaway jury verdicts.

In my experience, however, arbitration can prove just as costly as court. More and more arbitrators are allowing plaintiffs to engage in discovery that is nearly as expansive (and expensive) as what is permitted by trial courts. Additionally, employers have to add into the equation the cost to file the claim, which the employer usually shares. With the American Arbitration Association, these fees can run anywhere from $950 to a cap of $65,000. These fees do not include the arbitrators’ time, which often exceeds $500 per hour, and includes all pre-hearing conferences, discovery and motion practice, the actual hearing time, and the drafting of the opinion. It is not hard to see how in many cases the defense costs associated with arbitration outweigh defense costs in a traditional court proceeding.

Given these high costs, there is a much better alternative to hedge against a runaway jury verdict – contractual jury trial waivers. A properly drafted jury trial waiver accomplishes the following goals:

1. No appeal rights are lost. Judicial review of arbitration awards is very narrow. An appellate court, however, will have a much wider scope of review of a bench trial.

2. A bench trial eliminates the risk of a runaway jury awarding obscenely high damages.

Before asking your employees to sign that arbitration agreement, consider whether there are other viable alternatives to reach the same goal, such as a jury trial waiver.

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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.