Nashville jury rejects associational harassment claim

If a white employee stands up for her black co-workers, and is then ostracized and called racially-charged names because of it, is she entitled to compensation for the alleged harassment? According to one Nashville jury, the answer is no.

In Barrett v. Whirlpool Corp. (6th Cir. 2/23/09), the 6th Circuit determined that an employee cannot pursue a claim for retaliation based solely upon a relationship to a co-worker who engages in protected activity. The court also remanded for trial the racial harassment claim of one of the plaintiffs, Treva Nickens. She claimed that after she spoke out in favor of black co-workers who had filed a race discrimination suit against Whirlpool, she faced routine racist slurs and graffiti (such as being called a “nigger lover”), was told that she should stay with her own kind, was disciplined more harshly than whites, and was passed over for a promotion. According to The Tennessean, the jury rejected Nickens’ associational harassment claim.

Despite the jury’s verdict on the specific facts presented by Nickens, the law remains that harassment as a result of one’s association with or advocacy for protected employees is just as unlawful as harassment directed at a member of a protected class.

Even though Whirlpool escaped liability in this case, employers should not read this verdict as a license to permit harassment against employees associated with employees in a protected class. Employers must treat all allegations and complaints of harassment seriously. Investigations should be timely and thoroughly completed. Policies should be reviewed and reinforced. Appropriate corrective action should in instituted where warranted.

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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? Employers can communicate directly with employees’ health care providers for FMLA certifications

The recent changes to the FMLA’s regulations make it that much easier for employers to gather information about the medical need for an employee’s FMLA leave of absence. If an employee’s FMLA medical certification is incomplete (required information is omitted) or insufficient (the information provided is vague, ambiguous, or non-responsive), an employer is now entitled to request additional information directly from the employee’s health care provider.

This ability, however, has certain key limitations:

1. Before an employer can directly contact the health care provider, it must first advise the employee, in writing, of the deficiency in the certification and provide at least seven days for the employee to cure.

2. Thereafter, an employer can directly contact an employee’s health care provider solely for purposes of clarification (to understand the handwriting on the medical certification or the meaning of a response) or authentication (verification that the health care provider completed or authorized the completion of the certification form).

3. Contact, however, is limited to an employer’s own health care provider, a human resources professional, a leave administrator, or a management official.

4. Under no circumstances may the employee’s direct supervisor contact the employee’s health care provider.

5. Employers may not ask health care providers for additional information beyond that required by the FMLA certification form (including diagnostic information).

6. While an employee must give his or her written authorization before the employer can make contact with the health care provider, the employee’s failure to consent entitles the employer to deny the FMLA request.

7. The standard rules of confidentiality of employee medical information still apply.

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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.

Federal minimum wage increases, but does it matter to Ohio’s employers?

On July 24, the federal minimum wage rate increased to $7.25 per hour. However, as of January 1, 2009, Ohio’s minimum wage raised to $7.30 per hour. Thus, the new federal minimum wage has no effect except on the smallest of Ohio’s employers. Those businesses that gross less than $267,000 annually must comply with the $7.25 per hour rate. Ohio’s minimum wage will increase again on January 1, 2010 (and again on each January 1 thereafter) by the average rate of inflation for the prior September to September 12-month period.

Ohio is one of 14 states (including the District of Columbia) with a minimum wage higher than the federal mandate. Feel free to debate the effect of higher wage rates on business growth and development in the comments. The bottom line for most Ohio businesses is that the higher federal minimum wage simply does not matter.

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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 #88

A few weeks ago I cautioned about the dangers that lurk in positive recommendations on LinkedIn. Two of my blogging brethren disagree. Read the opposing viewpoints of Dan Schwartz at the Connecticut Employment Law Blog and Molly DiBianca at the Delaware Employment Law Blog.

I’ve often preached on the importance of treating employees fairly. Becky Regan at Compensation Cafe agrees.

I’ve previously reported that employers might be at risk for unpaid wages for non-exempt employees who check work-related email off-the-clock (Overtime pay for reading emails and Can't get away from the office). It seems that plaintiffs’ lawyers are starting to take notice of this issue. According to Kim Licata at Fair Labor Standards Act Law, “T-Mobile USA has been sued in the Eastern District of New York by its retail sales associates and supervisors who allege that they were not compensated for "off-the-clock" activities linked to Blackberrys and other hand-held device.”

The recent changes to the proposed Employee Free Choice Act continue to garner a lot of attention. For more thoughts on this issue I suggest Michael Fox’s Jottings By An Employer’s Lawyer and the EFCA Report.

Jennifer Hays at the Warren & Hays Blog offers some practical information on what to do and what not to do during a union organizing campaign.

James Gelfand at the Chamber Post breaks down the impact the pending health care legislation will have on employers.

World of Work shares 7 ways employers can save on litigation costs.

This week has a couple of good posts on employees’ use of vacation time: Philip Miles’s Lawffice Space shares his thoughts on mandatory vacation days, while Kari Henley at Today’s Workplace thinks we all work too hard and praises the introduction of the Paid Vacation Act of 2009, which would amend the Fair Labor Standards Act to require that employers provide all employees with 1 week of paid leave per year.

Kris Dunn, The HR Capitalist, has some suggestions on what to do when an employee has a positive drug test.

Workplace Privacy Counsel suggests that laws against online harassment may aid employers battling disgruntled ex-employees.

Wage and Hour Counsel shows how reliance on a Department of Labor opinion letter can save your bacon in a wage and hour lawsuit.

Strategic HR Lawyer has some advice for employees on what not to post on Twitter.

Finally, Dan Schwartz at the Connecticut Employment Law Blog uses a personal anecdote to illustrate the importance of communicating with the complainant in a workplace investigation.

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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.

Best Of... Department of Labor to step up enforcement; employers should step up self-audits

You may have noticed that I write a lot about wage and hour issues. I do so because it’s an issue that often gets even well-intentioned businesses into trouble. As if employers don’t already have it bad enough with the explosion of wage and hour class action litigation, this week brings us news that new Labor Secretary Hilda Solis promises to “reinvigorate the work” of the DOL’s Wage & Hour Division. Her quote comes in response to an investigation by the General Accounting Office, which reports that the Wage & Hour Division has mishandled hundreds of cases. In yesterday’s New York Times, Steven Greenhouse reports:

The report pointed to a cavalier attitude by many Wage and Hour Division investigators, saying they often dropped cases when employers did not return calls and sometimes told complaining workers that they should file lawsuits, an often expensive and arduous process, especially for low-wage workers.

In light of the DOL’s planned stepped-up enforcement, employers must be extra vigilant in uncovering wage and hour violation in their own workplaces. A wage and hour audit feels like an unpleasant medical exam. The investigator is not necessarily limited to the alleged violation, and will turn your workplace upside-down, pouring through years of records and privately interviewing your employees. And, once you are on their radar, it is hard to get off. In other words, they’ll be back to make sure you are staying on the path of all that is right and just. For employers, the best advice I can give is to get out ahead of this issue. Take a hard look at all of your current wage and hour issues: employee classifications, meal and rest breaks, off-the-clock issues, and child any workers. Make sure you are 100% compliant with all state and federal wage and hour laws. If you are not sure, bring in an attorney to check for you. If you are ever investigated by the DOL or sued in a wage and hour case, it will be the best money your business has ever spent.

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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 “card check” really dead?

Okay, so today is not “Best of…” as I had promised on Friday. This story is too important to pass on. The New York Times is reporting that Senate Democrats may have worked out a compromise on the Employee Free Choice Act that would eliminate its controversial card check provisions. The equally controversial mandatory arbitration provisions remain in the floated compromise.

For more info on this evolving story, check out what some of my fellow bloggers have to say:

• The EFCA Report: EFCA "Compromise": Quick Elections and More...
• World of Work: Democrats Delete Card Check from Employee Free Choice Act
• Dan Schwartz: EFCA "Compromise" in the Works?
• The Word on Employment Law with John Phillips: EFCA: Card Check Bites Dust
• Workplace Prof Blog: New EFCA Compromise, with no Card-Check
• Labor Pains: Dems Say They Will Drop Card Check From EFCA
• Talking Points Memo: EFCA Compromise? Moderates To Embrace Labor Reform...Without Card Check
• Lawffice Space: EFCA Only Part-Dead

Before we all get excited that card check might be going the way of the dodo, let me suggest that Senate Democrats floated this story to the Times as a trial balloon to see if enough moderates would bite to pass some form of labor reform this year. In other words, the only way we’ll know if there is a compromise is if and when President Obama signs the law. Stay tuned for more information on this story as it develops.

The rest of the week … best of (I think).

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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 #87

Many harassment cases involve things being rubbed. Walter Olson, whose Overlawyered just celebrated its 10th anniversary, brings us what may be the greatest harassment lawsuit ever filed: “Saudi family sues genie, alleges harassment.” 

If you need yet another reminder why it’s important to have a social networking policy for your organization, the Strategic HR Lawyer discusses the 20.2 million people between the ages of 35 and 54 who are registered on Facebook. Ellen Simon, writing from the employee’s perspective at Today’s Workplace, gives another reason to have such a policy  – employees terminated for writing something in a blog.

World of Work reports on a Tennessee court which held that an employee’s “shy bladder syndrome” qualified as an ADA-protected disability.

Debra Weiss at the ABA Journal Blog notes that GE’s CEO thinks that women make risky career moves when they take time off to start families.

Jason Morris at the Employeescreen IQ Blog reports on newly introduced legislation in Congress, the Equal Employment for All Act, that would prohibit the use of consumer credit checks against prospective and current employees for the purposes of making adverse employment decisions.

Dan Schwartz at the Connecticut Employment Law Blog talks about some the legal risks inherent in mandatory furloughs.

Molly DiBianca at the Delaware Employment Law Blog provides a very good summary on the legal issues and risks inherent in employment testing.

Jay Shepherd at Gruntled Employees debates the pros and cons of noncompete agreements.

Adams Drafting deconstructs the use of the word “salary” in a separation agreement in relation to the inclusion of bonuses.

Mark Toth at the Manpower Employment Blawg talks about two terms that you might not be familiar with – “E-Verify” and “No-Match.”

The Arkansas Employment Law Blog discusses the importance of properly classifying administrative employees under the FLSA.

Michael Haberman’s HR Observations observes ageism in the workplace.

I’m on a working vacation next week – speaking on the FMLA at the SEAK 29th Annual National Workers' Compensation and Occupational Medicine Conference on Cape Cod. I’ll be running “Best Of” next week, but should be back next Friday with a fresh set of the week’s best links.

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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.