Can you still be funny at work in a politically correct work?

Today’s HR Daily Advisor, published by BLR, asks the following question: Can You Still Tell a Joke in the Office? Instead of answering that question, I turn today’s post over to David Brent:

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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.

Lawsuits over off-the-clock smart phone use ask, “What is work?”

More than two years ago I cautioned that employers who require non-exempt employees to carry Blackberries or other devices that receive work-related emails could be liable for the time those employees spend reading and responding to those emails outside of work. (Can't get away from the office).

It appears that the plaintiffs’ bar has caught with this potential theory of liability. Michael Sanserino, in Monday’s Wall Street Journal, reports that two different lawsuits have been filed claiming that hourly employees should be compensated for time spent responding to emails while off the clock.

Even if reading and responding to work related email is work-related (and it likely is), I’m not convinced that employers should have to pay for any time spent performing these tasks. Most messages can be read in a matter of seconds or, at most, a few short minutes. The Fair Labor Standards Act calls such time de minimus, and does not require compensation for it. “Insubstantial or insignificant periods of time beyond the scheduled working hours, which cannot as a practical administrative matter be precisely recorded for payroll purposes, may be disregarded.” 29 C.F.R. § 785.47. Think of the administrative nightmare of an HR or payroll department having to track, record, and pay for each and every fraction of a minute an employee spends reading an email.

If a business wants to err on the side of caution, it could always draft a policy requiring employees to turn off their smart phones when they leave work for the day, or simply leave them at the office. With that policy, though, why issue the devices in the first place?

For more thoughts on this topic, I recommend the thoughts of my fellow bloggers:

• Ashby Jones at the Wall Street Journal Law Blog.
• Devora Lindeman at the Overtime Advisor.
• Patrick Smith at the Iowa Employment Law Blog.
• Jeffrey Hirsch at the Workplace Prof Blog.

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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? FMLA fitness-for-duty certifications

In a previous post, I detailed the new FMLA regulation’s eligibility notice and designation notice requirements. The FMLA also has specific requirements for how an employer must go about obtaining a fitness-for-duty certification from an employee on an FMLA leave for his or her own serious health condition.

1. Mandatory written notice. Before an employer can require an employee to provide a fitness-for-duty certification, it must expressly be provided for in a written FMLA policy or in the designation statement given to the employee at the outset of the leave. Additionally, if the employer wants the certification to address the essential functions of the employee’s job, a list of such functions must be provided to the employee with the designation notice.

2. Uniformity. The employer must have a uniformly-applied policy or practice that requires all similarly-situated employees (i.e., same occupation, job function, or serious health condition) who take leave for such conditions to obtain and present the certification.

3. Limited to the specific health condition. An employer may only seek a fitness-for-duty certification with regard to the particular health condition that caused the employee’s need for FMLA leave.

4. Cost. The employee must pay for the cost of the certification, and the employee is not entitled to be paid for the time or travel costs spent acquiring the certification.

5. Clarification. While an employer can seek clarification of a fitness-for-duty certification with an employee’s health care provider under the same rules applicable to other communications with an employee’s health care provider, the employer cannot delay the employee’s return to work pending the clarification. Unlike the initial leave certification, an employer cannot seek a second or third opinion of a fitness-for-duty.

6. Denial of job restoration. An employer can deny restoration, however, if a properly requested fitness-for-duty certification is not returned by the employee.

7. Intermittent or reduced work schedule leave. An employer is not entitled to a certification for each absence taken on an intermittent or reduced leave schedule. An employer is entitled, though, to a certification for such absences up to once every 30 days if reasonable safety concerns exist regarding the employee’s ability to perform his or her duties, based on the serious health condition for which the employee took such leave. An employer may not terminate the employment of an employee while awaiting such a certification for an intermittent or reduced schedule leave absence.

8. Interplay with the ADA. After an employee returns from FMLA leave, the ADA requires any medical examination at an employer’s expense by the employer’s health care provider be job-related and consistent with business necessity. If an employee’s serious health condition may also qualify as a disability under the ADA, the FMLA does not prevent the employer from following the procedures for requesting medical information under the ADA.

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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.

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.