Acting on inaccurate information is not enough to establish pretext

Four years after an employer terminates an employee for lying, the terminated employee passes a polygraph test that showed that she likely did not tell the lie that led to her termination. Can the employee use the results of that polygraph to show that her former employer had a pretext for a retaliation against her for her prior FMLA-leave? According to an Ohio appellate court in Ningard v. Shin Etsu Silicones (Summit Cty. 6/30/2009) [PDF], the answer is no.

In September 2004, Pamela Ningard took a 12-week FMLA leave from her employer, Shin Etsu Silicones. After missing a day of work in October 2004, Shin Etsu placed her on a last chance agreement because she did not have any remaining paid time off. In December 2004, Shin Etsu terminated Ningard under the last chance agreement after a customer reported that Ningard was spreading false information about the a bonus payment by Shin Etsu to the customer.

Ningard sued for retaliation under the FMLA. Four years after the termination, Ningard passed a polygraph examination, which she claimed showed that Shin Etsu unlawfully terminated her. The appellate court disagreed: “Ningard cannot point to a polygraph examination, which occurred nearly four years after the adverse employment action, to show that Shin-Etsu’s response … was actually a pretext for retaliation. This new information does not show that the reason given by Shin-Etsu was false, but rather that it may have acted upon inaccurate information.” Instead, the three-month gap between the FMLA-leave and the termination, coupled with no other evidence of retaliation, led to the proper dismissal of the lawsuit.

The lesson for employers is on oldie but goodie –  a court will not second-guess a legitimate reason for termination merely because it might later be proven to be incorrect. If the employer harbors a reasonable, good faith business justification, a that fact that it might later be proven to be wrong should not create pretext.

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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.

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.