Examining our prejudices

As my wife and I were loading our kids into the car for a trip to Lowe’s last Thursday night, we noticed someone we didn’t recognize talking to our neighbors across the street. As we were getting into our car, the man crossed the street and approached us. He was in his early twenties and casually, but neatly, dressed. He was carrying a packet of papers in his hand, and began rambling about running track, a trip to England, and selling magazine subscriptions. He handed me his packet of papers to look at, which ended up being a bunch of handwritten notes of magazine titles. When I told him that we already bought subscriptions from our nieces and nephews, he changed his story to something about soliciting used books for his mom. Needless to say, my spidey sense started tingling. I quickly finished gathering my family into the car, excused ourselves, and drove off. I also called the police. Apparently, I wasn’t the only person skeeved out by this guy, because the police already had a description and two squad cars on the way.

I’ve neglected one fact from this story. The particular person who made me nervous enough to call the police happened to be African American. Given his weird behavior, shifting purposes for going door-to-door, and lack of legitimate handouts, I’d like to think I would have reacted the same way no matter his race, especially in light of our neighborhood’s diversity. But, I am left wondering if his race added to my level of discomfort.

Most people do not set out to discriminate. In my career, I’ve come across very few employers that made a conscious decision to fire someone because of their race. Yet, no matter how enlightened and progressive we like to think that we are, we all harbor life experiences and prejudices that shape our behavior. Those prejudices don’t make us bigoted or racist; they just make us human.

Businesses get themselves in trouble when they believe they aren’t capable of discrimination. The key to avoiding potential liability is to recognize that we are all capable of discriminating. That recognition allows us to examine the prejudices that could lead to disparate treatment and hopefully avoid it. Something to think about the next time you hire or fire someone.

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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 #83

Every now and then a story slips through the cracks. Such is the case with Lima v. State, decided this week by the Ohio Supreme Court, in which the Court ruled that cities cannot enforce residency requirements as a condition of employment. The Cleveland Law Library Weblog has more information.

If the following headline doesn’t make you throw-up your breakfast, nothing will: Former Employee Wins $4.1 Billion. That is not a typo. The award really was $4.1 Billion. World of Work has the gory details of what can go wrong when you terminate a really high earner.

Two states have enacted legislation permitting parents unpaid leave to attend their children’s school activities. Colorado (via the Colorado Employment Law Blog) and Nevada (via the Workplace Prof Blog).

Meanwhile, Compensation Cafe offers a good list of potential new federal employment laws on the horizon.

Dan Schwartz at the Connecticut Employment Law Blog reminds employers that discrimination cases often hinge on whether the employer is consistent in its explanations.

Molly DiBianca at the Delaware Employment Law Blog digests recent polling data on office romances.

Michael Moore at the Pennsylvania Labor & Employment Blog discusses the important issue of who is a “management-level employee” for purposes of imputing harassment liability to an employer.

Christopher McKinney at the HR Lawyer’s Blog reports on chronic fatigue syndrome as an ADA-protected disability.

George’s Employment Blawg offers up a plaintiff-side opinion on male sexual stereotyping at work.

Discriminations talks about the disparate impact theory of, well, discrimination.

Finally, The Word on Employment Law with John Phillips draws some employment law lessons from Sesame Street.

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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.

Big verdict underscores importance of background checks

One would think that businesses with whom people entrust children or the elderly would conduct routine criminal background checks of its employees. In fact, in Ohio, it’s the law. At least one employer, however, an assisted living facility in Newport News, Virginia, unknowingly hired an employee with a long criminal history, including assault and battery. On May 28, a jury found the facility liable for failing to exercise reasonable care in hiring the former felon. The lawsuit involved the employee’s sexual assault of a resident. The ex-employee has been criminally charged with five forcible sodomy counts, three carnal knowledge counts, and one abuse and neglect count. For these acts, the jury awarded the abused resident $750,000 in damages.

There is a good lesson for all employers to learn from this example. Backgrounds checks are inexpensive. The potential exposure from hiring an employee with a criminal history, however, is large. Do your bottom line and the safety of your employees a favor and consider implementing routine criminal background checks for all employees. For information on how to use this information without running afoul of EEO laws, I recommend EEOC targets use of arrest and conviction records.

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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.

Drafting a social networking policy: 7 considerations

I could draft a perfect social networking policy using only a few words: “Be mature, be ethical, and think before you type.” Ultimately, you may decide that such brevity is what you want for you business. For the sake of completeness, though, I offer seven thoughts to consider when drafting a social networking policy.

1. How far do you want to reach? Social networking presents two concerns for employers – how employees are spending their time at work, and how employees are portraying your company online when they are not at work. Any social networking policy must address both types of online use.
   
2. Do you want to permit social networking at work, at all? It is not realistic to ban all social networking at work. For one thing, you will lose the benefit of business-related networking, such as LinkedIn. Without turning off internet access or blocking certain sites, a blanket ban is also hard to monitor and enforce.
   
3. If you prohibit social networking, how will you monitor it? Turning off internet access, installing software to block certain sites, or monitoring employees’ use and disciplining offenders are all possibilities, depending on how aggressive you want to be and how much time you want to spend watching what your employees do online.
   
4. If you permit employees to social network at work, do you want to limit it to work-related conduct, or permit limited personal use? How you answer this question depends on how you balance productivity versus marketing return.
   
5. Do you want employees to identify with your business when networking online? Because this blog is affiliated with my law firm, Kohrman Jackson & Krantz, I am cognizant that everything I write reflects on my partners and my business. Employees should be made aware that if they post as an employee of your company, the company will hold them responsible for any negative portrayals. Or, you could simply require that employees not affiliate with your business and lose the networking and marketing potential Web 2.0 offers.
   
6. How do you define “appropriate business behavior?” Employees need to understand that what they post online is public, and they have no privacy rights in what they put out for the world to see. Anything in cyberspace can be used as grounds to discipline an employee, no matter whether the employee wrote it from work or outside of work. There should be consequences for any information that negatively reflects on your business.
   
7. How will social networking intersect with your broader harassment, technology, and confidentiality policies? Employment policies do not work in a vacuum. Employees’ online presence, depending on what they are posting, can violate any number of other corporate policies. Drafting a social networking policy is an excellent opportunity to revisit, update, and fine-tune other policies.
   

For more information on social networking, revisit yesterday’s post -- Do you know? Facebook and Twitter and blogs, oh my! What is social networking and why should you care?

Do you know? Facebook and Twitter and blogs, oh my! What is social networking and why should you care?

Cave drawings were likely the earliest form of social networking. Today people tweet their thoughts for the world to see. In between we’ve had instant messaging, MySpace, Facebook, and blogs. The next several big things are already being hatched by some students at Stanford or MIT. Online social networking is here to stay – the only change will be in what form it takes.

According to a recent survey conducted by Deloitte, 22% of employees say that they use some form of social networking five or more times per week, and 15% of employees admit they access social networking while at work for personal reasons. Yet, only 22% of companies have a formal policy that guides employees in how they can use social networking at work.

Before we can figure out what to do about these exploding media at work, we first need to know exactly what we are dealing with. So, for the uninitiated, the following is a short lesson on the various types of social networking that are likely being accessed from your workplace right now.

• Blogs: Blog is short for weblog. Blogs either provide commentary on news or a particular subject (such as the Ohio Employer’s Law Blog), or serve as an online diary. Most are text-based, but blogs can also focus on art, photos, videos, and audio (you may have heard of podcasts). There are hundreds of millions of blogs on the internet, many updated as often as every day.
  
• Facebook: Facebook started as an online tool for college and university students to connect with each other. It has since expanded to allow anyone over the age of 13 with a valid email address to open a free account. It is loosely organized into a variety of networks based on schools, location, employers, charities, and other causes. Connections are known as “friends.” People update with short written blurbs about what they’re doing, pictures, video, and the like. Users can also post on friends’ pages. If you’re not on Facebook, I guarantee someone you know is. In fact, Facebook has over 200 million registered users. Even my mom has a Facebook page.
  
• LinkedIn: LinkedIn is an online network for professionals. It allows people to search and connect via alma mater, location, employer, or various user-created groups. It has over 41 million members.
  
• Twitter: Twitter is latest big-thing in social networking. It is what is known as “micro-bloggings.” “Tweets” are text-based posts of up to 140 characters, displayed on the user’s profile page and delivered to followers, other users who have subscribed.
  

Employers have three options to try to regulate social networking by employees at work: 1) turn off their internet access; 2) institute progressively harsher discipline against employees caught Facebooking or tweeting at work; or 3) draft a reasonable policy that recognizes the intersection of technology in the workplace and employees’ lives, and establishes reasonable baseline expectations about what is and is not acceptable use at work. Only the latter option makes any real sense.

Tomorrow, we’ll explore the pieces and parts that comprise a useable social networking policy. Until then, feel free to follow my 140 character thoughts on Twitter @jonhyman.

Let’s start the week with a laugh

So much of the news is doom and gloom, I thought I’d start everyone’s week with a little humor from one of my all-time favorite movies, Office Space. If you haven’t seen it, it’s definitely worth queuing on Netflix. Besides being hilarious, it offers an excellent glimpse in how not to manage employees.

Back to more substantive stuff tomorrow, I promise.

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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.

BREAKING NEWS: En banc panel of 6th Circuit reverses prior holding in Thompson v. North American Stainless and rejects associational retaliation claims

There are many types of relationships among employees in a workplace besides being co-workers. Many employees develop close friendships. Many businesses employee individuals from the same family – parents and their children, siblings, cousins, etc. Some employees work with their spouse. And some friendships develop into more, leading to dating, engagement, and even marriage.

Suppose an employee files a charge with the EEOC, and three weeks later, that employee’s fiancée is fired? Does the fiancée have a retaliation claim? Despite the fact that the fiancée engaged in no protected activity of his own, early last year in Thompson v. North American Stainless, the 6th Circuit permitted the employee to proceed with a retaliation claim by recognizing a claim 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 those who are directly involved, that it is clear that the protected activity motivated the employer's action. (emphasis added).

This morning, an en banc panel of the same court overturned its prior holding and expressly rejected this theory of associational retaliation.

Significantly, Thompson does not claim that he engaged in any statutorily protected activity, either on his own behalf or on behalf of Miriam Regalado…. By application of the plain language of the statute, Thompson is not included in the class of persons for whom Congress created a retaliation cause of action because he personally did not oppose an unlawful employment practice, make a charge, testify, assist, or participate in an investigation….

We must look to what Congress actually enacted, not what we believe Congress might have passed were it confronted with the facts at bar. For the reasons we have laid out, it was not “absurd” for Congress to limit the class of persons who are entitled to sue to employees who personally opposed a practice, made a charge, assisted, or participated in an investigation. Our interpretation does not undermine the anti-retaliation provision’s purpose because retaliation is still actionable, but only in a suit by a primary actor who engaged in protected activity and not by a passive bystander.

Retaliation continues to be of the most dangerous employment-law risks to face employers. By limiting this potential liability, this decision is a huge win for Ohio businesses. Employers no longer have to worry about how close of a relationship is close enough for a potential retaliation claim. As far as retaliation is concerned, employers need only worry about employees who actually engage in their own protected activity. Isn’t that enough for employers to worry about? 

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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.