Bullying versus harassment

It is generally agreed that the anti-discrimination laws do not create a general code of workplace civility. Employees are generally expected to endure the usual tribulations of the workplace, such as the sporadic use of abusive language, offhand comments or jokes, occasional or simple teasing, normally petty slights, minor annoyances, and the simple lack of good manners. Harassing conduct is only actionable if it is objectively and subjectively severe or pervasive so as to alter the terms and conditions of one’s employment.

In light of this standard, consider the following set of facts, which arose in Hidy Motors, Inc. v. Sheaffer (Ohio Ct. App. 7/31/90), an age harassment claim brought by a 67-year-old car salesman:

• When the general manager would walk behind Sheaffer he would repeatedly say, “Come on old man, pick up your feet.”
• After Sheaffer told the general manager that a couple wanted to go home and think about buying a car, the general manager told him, “Come on old man, get your f****** head out of your f****** ass and go out there and slam them.”
• Referring to Sheaffer, the general manager directed another sales person to help the “old man” close a deal.
• In discussing a disagreement over a sales bonus, the general manager told Sheaffer, “Old man, I don’t give a f*** what you think. That’s the way it is going to be.”
• After a child spilled some water on the floor, the general manager told Sheaffer, “I’ve heard that’s what happens when you get your age - you can’t control yourself.”

Based on this conduct, the appellate court reversed the trial court’s summary dismissal of the age harassment claim and sent Sheaffer’s claim back for trial.

There is no doubt that this particular general manager has an interesting management style, and is probably what one would call a bully. But, should a few instances of a 67-year-old employee being called “old man” support a harassment claim? There is a clear line between general bullying/boorish management and actionable harassment. I question whether this case falls on the right side of that line.

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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 #90

BLR’s HR Daily Advisor offers 10 tips to avoid employment lawsuit, in two parts – part one and part two.

Meanwhile, Jennifer Hays at the Warren & Hays Blog sums up lawsuit avoidance in one simple step – fire with a heart.

And, if you are sued, Michael Maslanka’s Work Matters suggests

Darcy Dees at Compensation Cafe reminds everyone that being wrong in a wage and hour lawsuit can have costly consequences for an employer if willfulness can be proven.

Michael Fox’s Jottings By An Employer’s Lawyer draws a connection between a good performance review, a termination, and a million dollar jury verdict in a discrimination lawsuit.

The Evil HR Lady offers some advice to a pregnant employee who is not eligible for FMLA leave.

Molly DiBianca at the Delaware Employment Law Blog digests a bunch of resources for employers seeking to promote a work-life balance.

Today’s Workplace asks if there is a link between the recession and increased workplace harassment.

The Overtime Advisor shares its thoughts on wage and hour issues and smartphone usage.

Want to know what’s wrong with American class action litigation – the Point of Law Forum reports on a $25,037,500 class settlement in which the plaintiff’s lawyers will receive $25,000,000, and the class members will receive $37,500 in discounts towards the purchase of future automobiles.

Patrick Smith at the Iowa Employment Blog provides a good summary of recent headlines in religious discrimination.

Marcia McCormick at the Workplace Prof Blog discusses the introduction of the Employment Non-Discrimination Act in the Senate. The bill would ban discrimination on the basis of sexual orientation and gender identity.

On Point reports that a Philadelphia hair salon is being sued by a male hair stylist who claims he was told it was “socially unacceptable” for him to “look like a girl.”

Carl Bosland at The FMLA Blog reports on legislation that could expand military leave benefits.

According to Workplace Privacy Counsel and the Philadelphia Bar Association, it is unethical for an attorney to use a third party to gain access to witnesses Facebook or other social networking page.

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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.

Know when to fish, know when to cut bait

Justin Barrett, the Boston police officer who was fired for calling Harvard professor Henry Louis Gates Jr. a “banana-eating jungle monkey,” has filed a lawsuit against the Boston police department, police commissioner, and mayor. Defending himself on Larry King Live last week, Barrett said that he is not a racist:

I would like to take this opportunity to offer fellow police officers, soldiers and citizens my sincerest apology over the controversial e-mail I authored. I am not a racist. I did not intend any racial bigotry, harm or prejudice in my words. I sincerely apologize that these words have been received as such. I truly apologize to all.

Let me put this as simply as possible – when you send an e-mail calling an African American a “jungle monkey” not once, not twice, but four different times, whether you are or are not a racist is irrelevant. All that matters is that everyone is going to perceive you as a racist.

In employment cases, perception is 90% of the battle. For example, let’s suppose the “jungle monkey” to whom Mr. Barrett referred was not Professor Gates, but was a subordinate Mr. Barrett had recently terminated. It’s possible he could convince a jury that racial animus did not motivate his decision, although highly unlikely. If your explanation as to why an employee was fired cannot pass the smell test, the case is one that should be quickly settled instead of expensively litigated.

[Hat tip: Overlawyered]

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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.

The importance of handbook disclaimers

Employee handbooks come in all shapes and sizes. For example, some employers have different policies that cover exempt versus non-exempt employees. Some employers have policies that create a probationary period for employees during the initial few months of employment. Some employers have progressive discipline policies. And some even grant formal appeal rights to employees who are disciplined or terminated.

In Fennessey v. Mount Carmel Health System (Franklin Cty. Ct. App. 7/30/2009) [PDF], a terminated nurse claimed that each of these policies set forth in Mount Carmel’s employee handbook either created an implied contract of employment, or consisted of a definitive promise on which she reasonably relied thereby binding her employer.

Thankfully for Mount Carmel, its handbook contained two items that no employee handbook should be without – an at-will employment disclaimer, and a signed acknowledgement by the employee affirming her at-will status. The disclaimer stated:

110.1 Employment At Will 

An employee of Mount Carmel Health System is an employee at will. The employee or Mount Carmel Health System can terminate the employment relationship at any time for any reason. No statement in this manual will be interpreted or applied as a contract of employment.

The signed acknowledgement stated:

I recognize Mount Carmel Health System has the right to change provisions in this manual and other policies…. I understand that no representative of Mount Carmel Health System has the authority to make an agreement contrary to the provisions of this manual. 

I recognize this manual does not constitute a contract of employment. I understand that, at any time, for any reason, I can separate my employment relationship and that Mount Carmel Health System has the same right regarding my employment status.

Based on these two statements, the appellate court affirmed the trial court’s dismissal of Fennessey’s promissory estoppel and breach of implied contract claims.

This case not only illustrates the vital importance of disclaimers and acknowledgements in handbooks, but also the need that certain critical language appear in all handbooks

1. A specific statement that employment is at-will, without exception.
2. An explanation, in plain English, of what at-will employment means.
3. A statement that no one can create a contract contradictory to the provisions of the handbook.
4. A statement that that handbook is merely a unilateral statement of rules and policies which creates no rights or obligations.
5. A statement that the handbook is not a contract and not intended to create an express or implied contract.
6. A statement that the employer has the unilateral right to amend, revise, or eliminate policies and procedures as needed.
7. A statement that employees should not rely on any statement in the handbook as binding on the company.

Do you know? Mandatory overtime

We should all know that any hours a non-exempt employee works in excess of 40 in any given week must be paid at a premium rate of one and one-half times the regular rate of pay. But, do you know whether there are any laws that inhibit an Ohio employer’s right to require that employees work more than 40 hours in a week?

The answer is no. An Ohio employer can legally require that its employees work overtime. There are no federal or Ohio laws that prohibit or otherwise limit the right of an employer to require its employees to work as many hours as an employer sees fit. Thus, an employer can require its employees to work more than eight hours in day and more than 40 hours in a week, without restriction. As extreme as it may seem, an employer can require an employee to work 24 straight hours, or work 80 or more hours in a week. Moreover, if an employee refuses to work overtime, an employer can discipline that employee, up to and including termination.

The only restriction placed on overtime work is that it must be paid at the statutory premium rate. Now, retaining employees that you require to work 20 hours a day or 80 hours week after week is another question entirely…

DOL publishes FAQ on furloughs and other reductions in pay and hours worked issues

While the economy is beginning to show signs of slowing turning around, businesses are still turning to employee furloughs and other alternative work schedules as a means to save costs and jobs. I’ve previously written on some of the wage and hour issues employers need to mind in implementing a furlough program. See Risks abound for businesses considering unpaid time off to save costs. The Department of Labor has now stepped into the fray and has published Frequently Asked Questions Regarding Furloughs and Other Reductions in Pay and Hours Worked Issues [PDF]. According to the DOL, its guide is “intended to answer some of the most frequently asked questions that have arisen when private and public employers require employees to take furloughs and to take other reductions in pay and / or hours worked as businesses and State and local governments adjust to economic challenges.”

If you are still considering implementing a furlough program or other alternate work schedule, this FAQ is a good starting point to helping you navigate the maze of wage and hour laws that impact your decision. Because of the complexity of these issue, I still recommend consulting with employment counsel before final implementation.

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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 #89

This week’s highlighted post is courtesy of Dennis Westlind at World of Work. Dennis brings us a link to an online game, Card Checked: The Game. Card Checked takes you to a post-EFCA world in which union organizers try to intimidate you into signing an authorization card. Threats are made, windows are smashed, laws are broken, and in the end … well, play the game and find out whether your tattoo parlor ends up unionized.

Workplace Horizons reports that Labor Secretary Hilda Solis intends to enforce “wage and hour laws more aggressively to ‘send a message’ to employers that they must comply with federal minimum wage, overtime, and other requirements.” Yet another reason to conduct that internal audit.

The Word on Employment Law with John Phillips shares his thoughts on reverse age discrimination.

Arkansas Employment Law compiles some links from around the web discussing how to handle workplace harassment.

Sindy Warren at the Warren & Hays Blog digests a recent 4th Circuit decision that discusses the different of remedial measures versus effective remedial measures in a sexual harassment case.

Dan Schwartz at the Connecticut Employment Law Blog offers some information on what employers should be doing about texting while driving.

Jonathan Turley's res ipsa loquitur blog, courtesy of Rush Nigut’s Rush on Business, details the story of an employee terminated because of his wife’s work as an adult film star.

Michael Haberman’s HR Observations talks about the treatment of employee bonuses for overtime purposes.

Mindy Chapman’s Case in Point discusses under what circumstances an employer has to accommodate the needs of a diabetic employee.

Jason Shinn’s Defending the Digital Workplace discusses a case in which a group of terminated employees were awarded punitive damages based on their employer’s surreptitious access of their MySpace pages.

The Washington Employment Law Blawg presents the top 10 most common employee handbook mistakes. When reviewing your handbook, add this list to my earlier list of 8 common employee handbook mistakes, and how to avoid them.

The EBG Trade Secrets & Noncompete Blog asks a very good question – where is the line between competing and preparing to compete? If an employee is merely engaged in the latter, he or she likely is not violating a noncompete agreement.

Finally, I Hate People...But It’s Nothing Personal, on the art of saying “No.”

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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.