An Independence Day thought

As we prepare to celebrate our freedom this July 4th, I thought I’d share the following letter to the editor about the Ricci decision, by Carol Polley of Eden Prairie, Minn., published in yesterday’s New York Times:

To the Editor:

If a kicker’s football fails to reach the goalposts, he does not get a do-over with a shorter distance between himself and the goalposts.

If a student does not pass the test, he does not get a do-over with easier questions.

When my house is on fire I want the best firefighter, and I don’t care what color he or she is.

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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.

Court holds wage and hour laws don’t protect oral complaints

Imagine an employee walks into your HR office and complains that the company has misclassified her as exempt and that she is owed overtime. According to the 7th Circuit in Kasten v. Saint-Gobain Plastics (7th Cir. 06/29/09) [PDF], you can actually fire that employee without fear of retaliation as long as the the employee only makes the complaint orally, and does not put it in writing.

The FLSA’s anti-retaliation provision provides that an employer cannot “discharge or in any other manner discriminate against any employee because such employee has filed any complaint….” The court held that unwritten verbal complaints are not protected activity: “[T]he natural understanding of the phrase ‘file any complaint’ requires the submission of some writing to an employer….”

Employers should not get overly excited about this decision. The 7th Circuit’s holding in Kasten appears to be the minority view. Indeed, the 6th Circuit (which covers Ohio) in EEOC v. Romeo Community Schools, found that an employee’s oral complaints to a supervisor were protected. Employers act at their own peril if they fire employees who make oral wage and hour internal complaints. In other words, the next time an employee walks into your HR office and voices that complaint, don’t fire her. Instead, listen. She might even be right.

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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.

Employees’ web-based email may be off-limits to employers

It is generally understood by employees and employers that employer-provided email systems belong to the the employer, and that employees do not enjoy any rights of ownership or privacy to that which is sent or received through that system. With workplace internet access the norm, many employees also have the ability to check personal web-based email accounts (Gmail, Yahoo, and the like) right from their desks. Many employers mistakenly believe that they have the same rights to monitor and access employees’ non-work, personal email that may happen to transmit through their system.

According to an article posted on Law.com last week, employers may be opening themselves up to potential liability by prying into employees’ own email accounts. The article discusses recent court interpretations of the Stored Communications Act, a federal statute that creates liability for whoever “intentionally accesses without authorization a facility through which an electronic communication service is provided” or “intentionally exceeds an authorization to access that facility.” In layman’s terms, courts are allowing employees to use the SCA to attack employers who probe into personal email information accessed from work.

Something to think about before you ask an IT person to look into an employee’s Gmail to see if he sent that harassing message, or to see if he’s sending confidential information to your chief competitor. You may be breaking one law by trying to comply with another.

Ricci v. DeStefano: Supreme Court rules on discriminatory Hobson’s choice

Perhaps no decision has been more eagerly anticipated this year by employment lawyers than the Supreme Court’s opinion in Ricci v. DeStefano. If you are unfamiliar with the case, it concerns a municipality refusing to certify the results of a civil service exam after it concluded that it was racially biased. Specifically, the black test-takers pass rate was half that of white test-takers. The white applicants who scored highest on the exam sued for race discrimination. Both the trial and appellate court ruled for the city, finding that the white applicants did not have a Title VII claim because the city was trying to comply with its Title VII obligations to its black applicants. This case asks a fundamental question – do our anti-discrimination laws guarantee preferential treatment for the historically underrepresented, or do they balance equal treatment for all?

In Ricci v. DeStefano [PDF], the Supreme Court held the following:

1. The city’s action in disregarding the test results to the detriment of the white firefighters that received the highest scores violated Title VII.

2. Avoiding disparate-impact liability does not excuse what otherwise would be prohibited disparate-treatment discrimination, unless the employer has a strong-basis-in-evidence that the employer will be liable under Title VII by accepting the challenged results.

3. To have a strong basis in evidence that the city would have been liable under Title VII had it certified the test results, the city would have had to prove that the exams at issue were not job related and consistent with business necessity, or that it had refused to adopt an equally valid, less discriminatory alternative.

The following quote from the Ricci decision sums up the Court’s view of the Hobson’s choice presented to employers between a policy or practice that has a disparate impact one versus an intentional decision to the discriminatory detriment of another:

Our holding today clarifies how Title VII applies to resolve competing expectations under the disparate-treatment and disparate-impact provisions. If, after it certifies the test results, the City faces a disparate-impact suit, then in light of our holding today it should be clear that the City would avoid disparate-impact liability based on the strong basis in evidence that, had it not certified the results, it would have been subject to disparate-treatment liability.

I was going to write something deep about the damned-if-you-do-damned-if-you-don’t decisions that employers face, but I can’t do it any better than Walter Olson (the proprietor of the awesome Overlawyered blog and Point of Law forum) did on Forbes.com:

It's a question HR managers and company lawyers are used to facing every day. Would you rather field the legal claims that result from targeted layoffs, or the ones that result from sacking people regardless of performance? Would you rather face a defamation lawsuit for mentioning the reasons for a problem employee's departure, or a failure-to-warn lawsuit for not mentioning them? Will your policy on religious proselytizing in the workplace get you sued by the believers, or by the atheists? But the courts have no general theory of sued-if-you-do, sued-if-you-don't scenarios, and often they seem unwilling to give the matter much thought at all. Monday, for a change, these issues took center stage…. Monday's crucial ruling is on the question: how serious does the prospect of litigation over an employment practice have to be before an employer is allowed to lean over in the opposite (discriminatory) direction to avoid liability?

The Ricci decision does not cure this problem, it merely flips it on it’s head. The employer in Ricci chose to protect the black employees and got sued by the white employees. After Ricci, an employer will have to choose the white employees and defend a lawsuit by the black employees. It’s little solace that this lawsuit will be defensible (at least according to the Court), because employers will still have to expend the legal fees to have the likely disparate impact lawsuit dismissed.

Stayed tuned – I’ll have further thoughts on what this important decision means for employers in an upcoming post. For other commentary on Ricci, I recommend checking out the following from my blogging brethren:

• Lyle Denniston at SCOTUS Blog: Analysis: Ricci, without the rhetoric.
• Dan Schwartz’s Connecticut Employment Law Blog: Five Things Employers Can Learn from the Ricci v. DeStefano Case.
• Michael Maslanka’s Work Matters: What Ricci means for employers.
• Marcia McCormick, at the Workplace Prof Blog: Ricci Analysis Part 1.
• Michael Fox’s Jottings By An Employer’s Lawyer: Supreme Court Gives Victory to New Have Firefighters.
• Marc Alifanz at World of Work: Ricci v. DeStefano -- Supreme Court Holds City Violated Title VII By Rejecting Racially Disparate Test Results.
• John Rosenberg at Discriminations: Ricci et al. Vindicated; Ricci Reversed!

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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.

No wonder fighting sexual harassment is an uphill battle

How are employers supposed to fight workplace harassment when employees are bombarded by images like this, an actual ad for Burger King’s new “Super Seven Incher”?

You can ask anyone who knows me – I am not a prude, not be any stretch of the imagination. I think it’s hilarious that Burger King has chosen the least subtle innuendo possible to advertise its new sandwich. But, if this what your employees see when they open the newspaper or turn on their TV, is it any wonder that they think it acceptable to forward images not that much more offensive this this one through the company email system?

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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 #85

Last week, Bozeman, Mont., began requiring all job applicants to provide a list of all “current personal or business websites, web pages, or memberships on any Internet-based chat rooms, social clubs or forums, to include but not limited to:  Facebook, Google, Yahoo, YouTube.com, MySpace, etc,” including their user names, other login info, and even their passwords. The Delaware Employment Law Blog and the California Employment Law Report have the details. Just as quickly, World of Work reports, the city reversed course and got rid of this awful practice. for other news in the world of background checks and employee screening, I recommend the Employeescreen IQ Blog on a background check that should have been done, and the Connecticut Employment Law Blog, on the risks of doing one incorrectly.

In the last couple of weeks, I’ve written a lot about social networking (Do you know? Facebook and Twitter and blogs, oh my! What is social networking and why should you care? and Drafting a social networking policy: 7 considerations). Kris Dunn, The HR Capitalist, has his own take on the issue.
Steph Gregor, in the Columbus, Ohio, Other Paper, writes on workplace lactation rights (and quotes me).

Dan Schwartz at the Connecticut Employment Law Blog has a good, basic lesson on “cloud computing.”

Jay Shepherd at Gruntled Employees, on why you shouldn’t nickel-and-dime your employees.
LaborPains notes that even the unions cannot agree that the mandatory arbitration provisions of the EFCA are a good idea.

Mike Elk at Today’s Workplace comments that he stopped drinking Yuengling beer because it is no longer a union shop (politics would never come between me and my favorite beer).

At HR Observations, Michael Haberman observes that labor unions are bad.

The FMLA Blog points out that just because an employee happens to be on FMLA leave does not mean that he or she cannot be fired.
Walter Olson’s Overlawyered reports that per a settlement, UPS will now permit the hard-of-hearing to drive certain trucks.

Mitchell Rubenstein at the Adjunct Law Prof Blog, on whether keystroke monitoring of employees’ computers violates federal law.

Another week brings us news of more new pending federal workplace laws. The Warren & Hays Employment Blog discusses the Family Friendly Workplace Act, which would allow for comp time in lieu of overtime. The Washington Labor & Employment Wire reports on another attempt at the Employment Non-Discrimination Act, which would add protections for actual or perceived sexual orientation or gender identity to Title VII.

Hector Chichoni at the Florida Employment & Immigration Blog thoroughly dissects the issues that could arise when layoffs hit employees with H-1B visas.

Ann Bares at Compensation Force tackles the issue of the lingering effect of furloughs.

Darcy Dees at Compensation Cafe opines on leveraging flexible work schedules as rewards for good employees.

WIRTW is taking next Friday off to celebrate our nation’s freedom, and will return on July 10 with a supersized two-week edition.

Workplace smartphone etiquette – smartphones versus smart use

When I started my first legal job during law school, the biggest distraction was  minesweeper on my desktop PC. Today, distractions are bigger, sleeker, and much more available. And, they have unshackled themselves from the desktop. Stop and think about the last meeting you attended when someone wasn’t fiddling with a Blackberry, iPhone, or other PDA.

In Sunday’s New York Times, Alex Williams takes up the etiquette debate of PDAs and corporate meetings:

As Web-enabled smartphones have become standard on the belts and in the totes of executives, people in meetings are increasingly caving in to temptation to check e-mail, Facebook, Twitter, even (shhh!) ESPN.com.

But a spirited debate about etiquette has broken out. Traditionalists say the use of BlackBerrys and iPhones in meetings is as gauche as ordering out for pizza. Techno-evangelists insist that to ignore real-time text messages in a need-it-yesterday world is to invite peril….

The phone use has become routine in the corporate and political worlds — and grating to many. A third of more than 5,300 workers polled in May by Yahoo HotJobs, a career research and job listings Web site, said they frequently checked e-mail in meetings. Nearly 20 percent said they had been castigated for poor manners regarding wireless devices.

Despite resistance, the etiquette debate seems to be tilting in the favor of smartphone use, many executives said. Managing directors do it. Summer associates do it. It spans gender and generation, private and public sectors.

At Gruntled Employees this morning, Jay Shepherd asks, “Does your company need a smartphone policy?” Here’s my two cents. If we are going to provide employees the technology to stay connected 24/7, and expect them to be available 24/7 because of this technology, we should trust them to be responsible with it. Technology has conditioned customers and clients to expect immediate responses to questions and problems. So, if an employee is spending some time during a meeting responding to a client, this responsiveness should be lauded, not legislated via a policy. On the other hand, if an employee is reading about the Cavs’ acquisition of Shaq, maybe the problem is with the meeting itself and not the 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.