Announcing KJK’s Proprietary HR and Employment Law Audit

I’ve written in the past about the importance of routine, proactive audits of employment policies and practices:

• Use a wage and hour audit to proactively head off claims.
• Penny-wise, pound-foolish employment practices.
• Department of Labor to step up enforcement; employers should step up self-audits.

An article I found on Business Management Daily further underscores this point:

The economy is a shambles, and employers are doing everything they can to stay in business. That includes terminations, salary and wage cuts and temporary furloughs. Nearly every one of those moves carries litigation risk. With little to lose, more and more employees are willing to stake bias claims, hoping to score a big settlement. Their allies are attorneys who will look for any reason to sue. Need convincing? The dramatic increase in EEOC complaints rose 15.2% from 2007 to 2008, illustrating the risk employers take with every layoff decision.

Have your company’s personnel policies and practices had a checkup lately? A comprehensive audit is one of the easiest ways to spot problems.

The article then lists 17 different areas that employers should audit to ensure legal compliance.

While this list is a good start, it is nowhere near complete. I’ve developed a proprietary 200-point audit of HR and employment policies and practices. If you are interested in discovering which areas of your business are out of compliance and open to legal risk, I am willing to conduct this preliminary audit without charge. Please contact me for the details.

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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.

Is LinkedIn a risk for employers?

One of the more interesting features of LinkedIn is the ability to recommend your connections. In fact, LinkedIn will prod you to recommend others to further complete your profile. For example, my LinkedIn profile is 90% complete, and it tells me I can get to 95% if I recommend another person. Most successful professionals share two personality traits that will cause them to strive for that 100% goal – overachieving and type-A personalities.

In today’s National Law Journal, however, Tresa Baldas makes an excellent point about the legal risks posed by LinkedIn recommendations. Let’s say, for example, a manager provides one of his subordinates a glowing LinkedIn recommendation. If that employee is later fired, the odds are pretty high that the employee will try to use that recommendation as evidence of pretext in a later discrimination suit.

Social media provides a gold mine of information to use in employment lawsuits. Employees’ Facebook pages, YouTube videos, and blogs are all fertile ground for discovering useful information to use against an employee. If employers are going to swim in these waters, they need to be equally mindful that what they write about an employee can also be used against the employer. When drafting a social media policy, consider these risks and decide whether an outright ban on LinkedIn recommendations is best for your organization.

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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? Perfect attendance bonuses and the FMLA

Before the recent FMLA regulatory amendments took effect, an employer could not  deny a perfect attendance bonus to an employee whose only attendance blemishes were the result of FMLA-leave. As of Jan. 16, 2009, however, employees on FMLA-leave could lawfully be denied a perfect attendance bonus:

[I]f a bonus or other payment is based on the achievement of a specified goal such as hours worked, products sold or perfect attendance, and the employee has not met the goal due to FMLA leave, then the payment may be denied, unless otherwise paid to employees on an equivalent leave status for a reason that does not qualify as FMLA leave.

In other words, as long as other employees taking similar time off are also not eligible for the same bonus, an employer can deny a perfect attendance bonus without fear of FMLA liability. The Department of Labor gives the example of an who uses paid vacation leave for a non-FMLA purpose. If an employer still provides a perfect attendance bonus to that employee, then it would be unlawful to deny the same bonus to an employee who used paid vacation leave for an FMLA-protected purpose.

While employers are now within their rights to deny perfect attendance bonuses to employees who take FMLA leave, the bigger question is whether an employer would want to withhold such a bonus. What message does that send to your employees? We value your dedication to getting to work everyday and on-time, but only if an unforeseen medical condition does not get in the way? Or is it better to pay out the bonus, even to those employees who have FMLA absences?

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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.

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.