Beware of discrimination risks when rehiring ex-employees

As the recession continues to show signs of ending, companies that had previously laid off employees will need to re-staff. According to CNN.com, a recent Department of Labor study finds that 38% of employers intend to recall cut workers. While a laid-off non-union employee has no right to be recalled or transferred into an open position, rehiring is not without legal risk. A recent 6th Circuit decision – Owens v. Wellmont, Inc. (6th Cir. 8/18/09) [PDF] – illustrates that employers need to pay as much attention to who is not recalled at to who is recalled.

After Wellmont eliminated Owens’s position in a reduction-in-force, she asked management about job openings in other departments. Wellmont hired younger candidates for those positions. The appellate court was bothered by the fact that management did not treat Owens’s discussions with management as formal applications for the open positions:

Owens did more than make a generalized expression of interest in working for Wellmont—Owens specifically informed Adams that Owens was interested in a position that was currently open.

As long as an employee makes a reasonable attempt to demonstrate to the employer an interest in the job, that employee can plead a discriminatory hiring claim if the job goes to someone else.

The lesson for employers is that if you are recalling RIF’ed employees, don’t discount someone merely because he or she did not make a formal application. If someone expressed interest in returning, it may be enough to trigger your responsibility to consider them for recall, or cause potential discrimination liability for failing to do so.

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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? What are an employer’s rights when an employee fails to give timely notice of FMLA leave?

Employees cannot simply take FMLA leave on a whim. They must provide their employers at least some notice, depending on the circumstances. An employee who needs foreseeable FMLA-qualifying leave is required to provide at least verbal notice sufficient to make the employer aware of the need for the leave and its anticipated timing and duration. An employee who needs unforeseeable FMLA-qualifying leave must, as soon as practical, provide sufficient information for the employer to reasonably determine whether the FMLA applies to the leave request.

What happens, though, if an employee fails to give timely notice?

1. Foreseeable leave – 30 days: When the need for FMLA leave is foreseeable at least 30 days in advance, and the employee fails to provide at least 30 days’ advance notice, the employer may delay FMLA coverage until 30 days after the date the employee provides notice. Thus, if an employee should have provided 30 days’ notice, but only provided 29 days’ notice, the employee can delay FMLA coverage for a full 30 days. This section is the most penal.

2. Foreseeable leave – less than 30 days: When the need for FMLA leave is foreseeable less than 30 days in advance, and an employee fails to give notice as soon as practicable under the facts and circumstances, the employer’s right to delay FMLA coverage for leave will vary from case to case. For example, if an employee reasonably should have given the employer two weeks notice but instead only provided one week notice, then the employer may delay FMLA-protected leave for one week.

3. Unforeseeable leave. When the need for FMLA leave is unforeseeable, and an employee fails to give notice as soon as practicable under the facts and circumstances, the employer’s right to delay FMLA coverage for leave will vary from case to case. For example, if it would have been practicable for an employee to have given the employer notice of the need for leave very soon after the need arises consistent with the employer's policy, but instead the employee provided notice two days after the leave began, then the employer may delay FMLA coverage of the leave by two days.

These rules provide employers and important tool. Delaying an employee FMLA coverage means that any absences can be considered unexcused. For an employee who fails to give timely notice of a foreseeable FMLA leave, the employee could accumulate enough absences to warrant termination before the FMLA coverage ever kicks in.

To take advantage of these provisions,the Department of Labor requires that the employee had actual notice of the FMLA notice requirements, through a proper workplace posting and a properly distributed FMLA policy. If you are unsure whether your postings and policies pass muster, check with your employment counsel.

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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.

A lesson on reasonable accommodations

My family and I went to Sesame Place last Friday. As we were preparing to leave the park, my three-year-old daughter noticed a queue for Cookie Monster and Telly Monster, and asked if she could see the characters before we left. When we got to the end of the line, however, the handler told us that the line was closed. If you want to know what absolute dejection looks like, you should have seen the look on my daughter’s face. She began to uncontrollably cry, sobbing that she just wanted to give Cookie a hug. I began to plead with the employee to reopen the line for my daughter, but she told me that doing so would be unfair to the hundreds of other children she had already turned away. My daughter’s genuine tears must have moved the employee, though, because she granted us VIP access to the holding area where all of the characters that march in the parade. Instead of just getting to hug Cookie and Telly, my daughter got to meet and hug every character in the park.

This parable holds a very good lesson for employers when dealing with a disabled employee’s request for a reasonable accommodation. The employee is not entitled to an accommodation of his or her choosing. Instead, the employer may choose among available accommodations as long as the chosen accommodation is effective. If more than one accommodation is effective, the employer has the ultimate discretion to choose between effective accommodations. Cost, ease of provision, and the employee’s preference are factors to be considered, but are not dispositive. Instead, as part of the interactive process, the employer may offer alternative suggestions and discuss their effectiveness in removing the workplace barrier.

My daughter would have been very happy at the back of the line to meet Cookie Monster. That accommodation, however, was not feasible. In your workplace, the alternative will not always work out as well for the employee as it did for my daughter. Engaging in the required dialogue with the employee, however, helps both sides come to an understanding as to the reasonableness of the proffered accommodation.

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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 #92

Apparently, my incessant linking has labeled me as a potential spammer according to Blogger. Annoyed but undeterred, here’s what I’ve been reading this week (assuming Blogger gets its act together and releases me from its constraints).

Above the Law reports on an attorney who asks job applicants for their political beliefs, along with a recent personal or family photo before he will consider them for employment. Can you say Title VII violation?

Walter Olson’s Overlawyered has a story on what may be the worst legal defense of all time – a hotel sued by a woman raped in its parking lot claimed that she was negligent, careless, failed to mitigate her damages.

Laura Harshbarger at the New York Labor & Employment Law Report has some very good tips on handling workplace investigations. One point that is missed, though, is to be mindful that whatever work product is created during the investigation, even if done by the employer’s attorney, is likely admissible in a subsequent lawsuit.

The Word on Employment Law with John Philips counsels that investigations of workplace misconduct should be thorough before an employee is terminated.

Strategic HR Lawyer reprints a CareerBuilder survey of the top employee complaints.

Michael Fox’s Jottings By An Employer’s Lawyer reminds employers that ignorance of the law, such as the FMLA, is no excuse. For a similar case out of the 6th Circuit, take a look at ‘Tis better to have learned and lost.

Michael Maslanka’s Work Matters discusses some recent findings on employers’ opposition to union organizing.

Michael Haberman at HR Observations shares his thoughts on racism in the modern workplace.

If you’re looking for information on how to handle disabled employees, Lawffice Space suggests that you try to navigate around the federal government’s new site on the topic – disability.gov.

Lee Sevier at Wage & Hour – Developments & Highlights, on the importance of properly distinguishing between employees and independent contractors.

Jill Pugh’s Employment Law Blog thinks employees should use common sense when it comes to social networking.

Sindy Warren at the Warren & Hays Blog reminds companies that military status discrimination is illegal.

Richard Tuschman at the Florida Employment & Immigration Law Blog, on bystander harassment. For my thoughts on this issue, take a look at Further reflections on Reeves v. C.H. Robinson Worldwide.

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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.

On redemption and second chances

It’s been a week since my beloved Philadelphia Eagles shocked the sports world by signing convicted felon Michael Vick to a two-year contract. I’ve waited to comment on this story because I needed the time to process how I feel about my team being the one to provide a second chance to someone who did what Vick did.

Here’s what I’ve come up with: an employee’s opportunity for a second chance is proportional to one’s ability and talent. Something to consider the next time an employee makes an colossal blunder – does the employee have enough value to your organization to warrant a second chance?

For more thoughts on what Michael Vick has to do with employment law, I recommend my fellow bloggers:

• Michael Maslanka’s Work Matters: Lessons employers can learn from the Eagles' decision to hire Michael Vick.
• The Word on Employment Law with John Phillips: Michael Vick and Squeaky Fromme.
• Philip Miles’s Lawffice Space: Michael Vick and Hiring Criminals.
• William Bowser at the Delaware Employment Law Blog: What Can Employers Learn From Michael Vick and the Eagles?
• Jason Morris at the employeescreen IQ Blog: As Michael Vick Returns to NFL, Employment Lawyers Push Criminal Records Checks.
• Terri Albee at Compensation Cafe: How Do Your Non-Work Related Activities Affect Your Compensation?

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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.

Announcing the next KJK Breakfast Briefing: Google and Facebook and Twitter, Oh My! Emerging Workplace Technology Issues

Do you know what your employees are doing on-line? Join KJK’s team of employment lawyers to learn:

1. What are Facebook, Twitter, and LinkedIn, and do you need a policy to guide your employees on how to use them inside and outside of work?
2. What is “textual” (sexual) harassment, and how does your investigation of it implicate the Stored Communications Act?
3. What wage and hour issues can arise though the use of workplace technology?
4. What are the legal risks of “googling” job applicants during the hiring process?

Date:	Tuesday, September 15, 2009
Time:	8:00-8:30 Continental Breakfast
	8:30-9:30 Presentation
	9:30-10:00 Q&As
Place:	The Club at Key Center, 127 Public Square, Cleveland (on-site parking is free)

If you are interested in attending this free seminar, or for more information, please contact Andrea Hill, (216) 736-7234 or ach@kjk.com, by September 8, 2009.

Government updates swine flu guidance for businesses

Just a quick note to let everyone know that the federal government has updated its flu guidelines for businesses.  Ann Beauchesne at The Chamber Post has the details.