How to Stay Union-Free in a Union- Friendly World: PowerPoint now available

For those who were unable to attend last week’s Breakfast Briefing, you not only missed a free meal, but you also missed a timely discussion on union avoidance. The PowerPoint slides are below. You’re on your own for breakfast this morning.

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

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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 #79

The newly launched Warren & Hayes Employment Law Blog, written by the Cleveland-based HR consulting company of the same name, discusses the discrimination liability risks inherent in searching employees’ on-line profiles. In other social networking news, Robert Ambrogi at the Legal Blog Watch discusses the Wall Street Journal’s recently drafted social networking policy for its employees. Workplace Privacy Counsel discusses whether there are any limits on how far employers can go in regulating employees’ private social networking profiles. Business Management Daily warns employers against overreacting to employees’ online presence.

Overlawyered let’s us know that academics are debating whether “heightism” should be added to the list of protected classes. (ugh).

WorkplaceHorizons reports on two recently-introduced bills that would amend the FMLA – one to repeal this year’s new regulations, and other to expand the permissible reasons for FMLA-leave.

Current Employment details the EEOC’s position that employee health risk assessments violate the ADA.

Molly DiBianca at the Delaware Employment Law Blog shares her thoughts on the effects of caregiver discrimination on dual-income households.

Dan Schwartz at the Connecticut Employment Law Blog, on issues to consider when settling employment disputes.

Bob Sutton, with some outside-the-box ideas on curbing employee theft.

PC Magazine’s Eric Griffin presents the 25 golden rules of e-mail.

Christopher McKinney at the HR Lawyer’s Blog digests a half-million dollar verdict for a transgendered employee whose job offer was rescinded after he showed up on the first day of work as a she.

The Evil HR Lady opines on the evils of draconian vacation policies.

The Washington Labor & Employment Wire reports on the EEOC’s recently announced regulatory agenda for 2009 and 2010. The highlights include regulations for GINA and the ADA Amendments Act.

Finally, the U.S. Chamber of Commerce’s Chamber Post discusses Ohio’s recent growth despite the stale economy.

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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.

“Who wants to see a 56-year-old stripper?”

Those were my wife’s words when I told her last night what I’d be writing about today. The EEOC is suing a Houston strip club for firing a 56-year-old dancer. According to the Houston Chronicle [h/t: ABA Journal]:

Mary Bassi, who was 56 at the time of her termination, worked at Cover Girls, where she was allegedly subjected to disparaging remarks. According to the lawsuit, which was filed last week in federal court, she was frequently called “old” by managers and endured comments about experiencing menopause and showing signs of Alzheimer’s disease.

According to Connie Wilhite, the EEOC lawyer in charge of the case, “It doesn’t matter what industry you work in. You are still protected by anti-discrimination laws.” While I agree that every individual has the right to be free from unlawful job discrimination regardless of one’s chosen occupation, I seriously question whether this lawsuit is a judicious use of our government’s resources. After all, to translate my wife’s question into legal terms, can anyone really dispute that age is a bona fide occupational qualification for a strip club employee?

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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 to recover a stolen computer in four easy steps

Law.com reports that 60% of employees who are laid-off, fired, or quit  admit to stealing company data. I previously reported that it costs an average of $50,000 to replace a stolen computer, with 80% of that value coming from the recovery of sensitive, confidential, and proprietary information. When you put these two pieces of information together, it becomes increasingly apparent that businesses must take proactive steps to protect their technology and data.

According to a case recently decided by a Missouri federal court, employers can use the Computer Fraud and Abuse Act (CFAA) to recover a stolen laptop. The CFAA is a federal law that creates a private causes of action for individuals or businesses damaged by computer fraud. In Lasco Foods v. Hall & Shaw Sales & Marketing, the district court permitted the employer to pursue a claim under the CFAA against two ex-employees who failed to return their laptops after resigning to start a competing enterprise. The ability to use the CFAA in this context is an important weapon for employers, because it allows for the recovery of a variety of damages and costs, including forensic investigation fees incurred in examining the computer after its return.

Yet, litigation is just one step in an overall four-step plan I recommend to secure corporate technology from ex-employees:

1. Institute a strong Electronic Communication and Technology Policy, making clear that all data and equipment belong to the company, and must immediately be forfeited upon the end of employment.

2. Remind employees upon termination or resignation of their duty to return all data and equipment, including laptops.

3. If any data or equipment is missing, enlist the aid of an attorney to send a friendly, yet clear message that unless everything is returned immediately, the company will enlist the aid of a court.

4. Sue.

Notice that a lawsuit against the employee is step four, not step one. Going to court is the last resort. It should always be the last resort. It is expensive and time consuming. Yet, it many instances it is unavoidable. The CFAA, at least as some courts are interpreting it, provides employers with a key weapon in combating employee theft of computer equipment if one is left with no choice but to sue.

[Hat Tip: EBG Trade Secrets & Noncompete 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.

Do you know? Volunteerism under federal wage and hour laws

According to EVliving.com, one employer has come up with a creative idea to combat the current economic downturn. The CEO of Greenleaf Book Group, a publishing company, has decided that instead of laying off any employees, his company will simply require its employees to volunteer one hour of time per week to the company.

“Cutting one person from the team is losing one invaluable resource that helps make this entire company tick,” he said. “In the short term, it’s hurting morale and lowering the productivity of a department. In the long run it means the entire company’s time and money spent trying to make up for the loss-redistributing tasks and overburdening departments, struggling to make up the slack, dealing with the paperwork, and eventually putting additional man-hours toward rehiring and retraining. And of course, the toll layoffs take on the economy are tremendous.” … 

“Essentially, every employee is putting in one voluntary extra hour per day at work,” he explained “One extra hour to be used in the most advantageous way possible: finishing up projects, having a meeting with a client or vendor, assisting a coworker, getting hands dirty working in another department. Even cleaning a desk or organizing files, if it helps improve efficiency.” 

The numbers work, he said:

• 30 employees x 1 hour per day
• Multiplied by a 5 day workweek
• Equates to 150 extra hours
• Divide that number by 40 hours per standard workweek
• The result is 3.75, the equivalent of almost 4 full time employee work weeks
• For any company, an extra hour increases the work week from 40 to 45 hours and is a simple 12.5% increase. 

Before you decide to copy Greenleaf’s idea in your own workplace, consider that it almost certainly violates federal wage and hour law. The FLSA requires employees to be paid for all hours worked. Requiring employees to work an hour without pay violates this law. For private employers, there is no such thing as a volunteer employee. All work hours must be paid hours.

To demonstrate the anachronistic nature of the FLSA, however, consider that Greenleaf could have achieved the exact same goal without violating any laws. Instead of asking for an hour of work without pay, it could have simply reduced each employee’s effective weekly rate of pay by one-fortieth. In other words, one could figure out what hourly rate of pay would get an employee to 39 hours worth of pay for 40 hours of work. There is nothing illegal about prospectively reducing pay, as long as the hourly rate is above the minimum wage.

[Hat tip: Workplace Prof Blog]

Sleeping on-the-job costs security guard his disability discrimination case

You would think that the ability to awake on one’s watch is an important attribute for a security guard. One security guard working for a Cleveland hospital believed that his employer had a duty to reasonably accommodate the side effect of his heart medication by permitting him to sleep during his shift. Rongers v. University Hospitals of Cleveland (Cuyahoga County Court of Appeals, 5/7/09) [PDF] concluded differently.

Rongers, a night-shift sergeant at University Hospitals, was prescribed a beta blocker following a heart attack. According to Rongers, the medication “made him light-headed and tired. He had difficulty sleeping during the day and difficulty staying awake during his work hours.” Thus, he took naps “when needed.” He admitted that he napped while on duty five or six times, sometimes for as long as two hours at a stretch. When the hospital caught time on tape, it fired him. The court subsequently dismissed his disability discrimination lawsuit, a decision that the court of appeals affirmed:

Rongers admitted sleeping on the job meant that he was not performing his essential duties as a security guard. Rongers testified that an employer should not tolerate sleeping on the job. He said that he never held a job where it was acceptable to sleep while on duty and understood that when he did sleep on the job, he was not working. He further conceded that when he performed part-time security work outside of UH he actually discharged a member of his team for being asleep on the job. This evidence shows, as a matter of law, that Rongers could not safely and substantially perform his job duties when he required periods of sleep while on duty…. [A]n employee who requires extended periods of sleep while on the job cannot be performing the essential duties of the job.

It’s hard to argue with the result in this case, but it nevertheless makes an important point. Just because an employee has a medical condition does not mean that the employer must make an accommodation for that employee. Many conditions simply cannot be accommodated, given the nature of the job and the issue that must be addressed.

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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 #78

Tomorrow marks the Ohio Employer’s Law Blog’s two-year anniversary. In those two years, I’ve written 604 posts (a number that looks ever more amazing to me now that I’m looking at it on the screen), amassed more than 100,000 readers, hundreds of subscribers, and made countless friends. Thanks to everyone who’s taken the time to subscribe, read, comment, email, call, link, and even disagree with me. I look forward to continuing to bring everyone the latest employment law news and information from an unabashedly pro-business slant.

My favorite story of the week comes from Jeffrey Hirsch at the Workplace Prof Blog. I’ve written before about some alternatives to layoffs, including salary reductions, reduced work schedules, and furloughs. It seems one employer has taken this idea to the extreme. Facing a need to layoff employees, and blaming President Obama for his problems, this boss selected employees for layoff by whose cars had Obama bumper stickers.

Philip Gordon at the Workplace Privacy Counsel has a Q&A on the intersection between the swine flu and workplace privacy rights.

Dan Schwartz at the Connecticut Employment Law Blog shares his own thoughts on responding to an administrative charge, which differ from mine.

The EFCA Report reports on a compromise that may be in the works, removing the controversial card check provision from the EFCA and replacing it with a shortened 21-day election period, and requiring first-contract mediation instead of binding arbitration. Also, LaborPains.org digests George McGovern’s opposition to the EFCA’s arbitration provision.

Molly DiBianca at the Delaware Employment Law Blog summarizes the new notice requirements under the FMLA’s recent regulatory change.

Where Great Workplaces Start posts some information on implementing a drug-free workplace policy.

Paul Mollica’s Daily Developments in EEO Law, discussing a recent 6th circuit disparate impact case.

Kris Dunn, The HR Capitalist, attempts to answer an age old question – when an employee resigns, should you accept or reject a two-week notice?

The Word on Employment Law with John Phillips has an interesting take on whether an employer’s refusal to hire a white supremacist would violate Title VII’s prohibition against religious discrimination.

The FMLA Blog answers whether you can terminate an employee who has asked for FMLA-leave. Point of Law succinctly provides its own answer to this question, “offer them bigger exit packages.”

Nick Fishman at the Employeescreen IQ blog discusses a potential problem in hiring – what if you cannot obtain a timely verification of prior employment because the prior employer downsized and has no one to respond to your request?

The Business of Management discusses whether management can ever really quell an employee rumor mill about layoffs.

Today’s Workplace, on the Arbitration Fairness Act and ending forced arbitration of claims.

HR World reports on the challenge of work-life balance for working moms. Meanwhile, Carolyn Elefant at the Legal Blog Watch alerts everyone to a piece that will air on 20/20 tonight about “whether the Pregnancy Discrimination Act actually hurts women by deterring businesses from hiring them to begin with.”

Finally, since Sunday is Mother’s Day, I’m sharing Michael Mislaka’s piece about how his mom made him into the employment lawyer he is today.

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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.