Study of American working conditions presents opportunity for employers to tune up legal compliance

Cars need routine maintenance: an oil change every 3,000 miles, an annual inspection of the systems, and more serious TLC every two or three years. Without this service, even the best made car will die long before its time. With this service, clunkers can run for hundreds of thousands of miles.

According to a survey conducted by the Center for Urban Economic Development, the National Employment Law Project and the UCLA Institute for Research on Labor and Employment (as reported in the New York Times by as reported in the New York Times by Steven Greenhouse) many employers are not doing the routine maintenance that they should to keep their labor and employment compliance in tip top shape.

The survey of over 4,300 low-wage workers in Chicago, LA, and New York concluded:

• 26% of employees reported being paid less than the minimum wage.
• 76% of employee who work overtime reported not being paid the legally required overtime rate.
• Of the 25% who claimed off the clock work, 70% reported it was unpaid.
• 41% of employees who had money deducted from their pay reported illegal deductions.
• Of the 20% of employees who reported making a complaint to management or trying to start a labor union, 43% experienced some form of retaliation.
• 50% of employees who reported workplace injuries to their employer claimed some form of retaliation.
• 68% experienced some pay-related violation.

You could dismiss this study as left-wing propaganda. I urge employers to pay attention to it for one important reason. In the Obama administration, the federal agencies that enforce workplace laws are ramping up enforcement to an unprecedented level:

• This week, the Justice Department announced that it would hire an additional 50 attorneys to increase its enforcement of civil rights violations.
• The Department of Labor previously announced that it would be stepping up enforcement of its Wage & Hour Division.
• One need only scan the EEOC’s press releases to see that it has significantly ramped up its prosecution of EEO violations.

What does all this mean for the average employer? There is a wonderful opportunity available to get your hands dirty in HR matters and figure out where the violations exist in your workplace before a federal agency or plaintiff comes knocking. I hope your workers weren’t among those surveyed, and I hope your workplace isn’t as bad as those included in the survey. However, every workplace needs a tune-up every now and then. Handbooks should be reviewed annually. Harassment and EEO training should be done at least every two years absent a need for more frequent training. A wage and hour audit should be completed once every two to three years. Your stance on retaliation (“Don’t do it”) should be reinforced at every opportunity.

I can’t say for certain that treating your workplace policies like your car will avoid lawsuits. But, some routine preventative maintenance will go a long way to ensuring better compliance and fewer problems.

---

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.

Sexual orientation is not a proxy for religious discrimination

Until Congress gets its act together and passes the Employment Non-Discrimination Act, it is still legal to openly discriminate against employees because of their sexual orientation. For example, in Pedreira v. Kentucky Baptist Homes for Children, Inc. (6th Cir. 8/31/09) [PDF], the employer admitted that it fired the plaintiff because of her sexual orientation. The 6th Circuit found that because sexual orientation is not a protected class, Pedreira did not have a sex discrimination claim under Title VII.

Employees, though, have found loopholes in the discrimination laws to successfully bring sex discrimination claims based on non-conformity to gender stereotypes. For example, in Prowel v. Wise Business Forms, Inc. (3rd Cir. 8/28/09) [PDF], the 3rd Circuit allowed a effeminate gay man to bring a sex harassment claim based on allegations that his co-workers called him names such as Princess and faggot.

In Pedreira and Prowel, both employees also claimed religious discrimination, asserting that their lifestyle did not comport with their employers’ conservative religious views:

• Pedreira claimed that living openly as a lesbian did not comply with her employer’s religion, and that she was terminated because she did not hold its religious belief that homosexuality is sinful.
• Prowel claimed that his co-workers harassed him because his homosexuality did not match their religious views.

The Courts disagreed. Sexual orientation discrimination is not illegal, and employees cannot use religion as a proxy for sexual orientation. Religious discrimination both precludes employers from discriminating against an employee because of the employee’s religion, and because the employee fails to comply with the employer’s religion. The discrimination, however, must be targeted at a specific religion. The plaintiffs did not allege that their religion had anything to do with their terminations, or that their sexual orientation was tied to their religious beliefs. They merely claimed that their employers’ religious beliefs frowned on their lifestyles.

It is likely that sexual orientation discrimination will be outlawed in Ohio or nationwide by 2010 at the latest. Until then, this issue is one of morals for business owners. As for me, I think it’s reprehensible that this type of misconduct still occurs in what we advertise as the cradle of freedom.

---

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? Fake job references?

More people are out of work at any time in the past 25 years. And, it appears that some are taking desperate measures to find new jobs. ABCNews.com reports that companies have sprung up that will sell a job hunter a fake reference: CareerExcuse.com and Alibi HQ.

It’s not newsworthy that people lie to get jobs. What is newsworthy, though, is the ease at which the desperate unemployed can find a bogus, yet legitimate sounding, employment reference. The internet has made it almost too easy for a job candidate to create an entirely fictitious, yet 100% verifiable, work history.

Employers screening job candidates need to be extra vigilant. Just as the internet has enabled companies like CareerExcuse to flourish, it also provides the tools for you to call a bluff. Don’t just take an applicant’s word that he worked for ABC Widgets for 10 years. Google the company and see if it exists. Look for an independent phone number to verify employment. A little diligence up front can go a long way to saving headaches down the road.

---

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.

6th Circuit re-affirms mixed-motive causation under the FMLA

Earlier this summer, the U.S. Supreme Court did away with the notion of a mixed motive termination in an age discrimination case. In Gross v. FBL Fin. Servs., the Court held that to succeed on an disparate treatment claim under the ADEA, a plaintiff must prove that age was the only cause of the challenged action. I’m not breaking ground by reporting that employers make decisions that implicate statutes other than the ADEA. And, in those decisions, there are often more than one motive present. So, does the Gross, but-for rule apply in mixed-motive cases under other statutes, such as the FMLA? Last week, in Hunter v. Valley View Local Schools (8/26/09) [PDF], the 6th Circuit gave us the answer.

Before we get into what the court ruled, it helps to understand the issue by briefly looking at exactly what happened to Eunice Hunter, a custodian for the Valley View schools. Following a car accident, Hunter had three rounds of surgery over the span of two years. Following each surgery, she missed months of work, and returned with restrictions. Ultimately, the school district placed her on involuntary unpaid leave. The superintendent gave two reasons for the termination – her excessive use of FMLA leave, and her inability to perform her job because of her permanent restrictions. The district court dismissed Hunter’s FMLA claim because the school district would have placed her on involuntary leave regardless of her FMLA leave because of the permanent medical restrictions.

The 6th Circuit, however, reversed, finding that unlike the ADEA, the FMLA authorizes claims based on an adverse employment action motivated by both the employee’s use of FMLA leave and also other permissible factors. In such cases, if the employee presents evidence that the employer discriminated because of FMLA leave, the burden shifts to the employer to prove that it would have made the same decision absent the impermissible motive.

The standards might change, but for businesses the lesson is the same (and I apologize if you’ve heard this before). Documentation is key. Whether an employer can prove discrimination via a mixed motive or an only motive, it won’t mean a hill of beans to a company if it cannot prove that it had a legitimate reason for what it did.

---

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 #93

This week’s review starts with some of fellow blogger’s thoughts on the passing of Ted Kennedy:

• The Word on Employment Law with John Phillips, discusses Sen. Kennedy’s employment law legacy.
• Mike Elk at Today’s Workplace draws a lesson from the death of his brother.
• The EFCA Report, on Sen. Kennedy at the EFCA.
• Christopher McKinney at the HR Lawyer’s Blog.

This week also had an abundance of posts on social media in the workplace. I’m thinking a lot about this topic in light of KJK’s upcoming Breakfast Briefing on this issue:

• Mark Toth’s Manpower Employment Blawg, on how employers use social media.
• Elizabeth Bernstein at the Wall Street Journal shares her thoughts on how Facebook ruins friendships.
• Natalie Beck at the Employscreen IQ Blog on the downside of hiring based on a favorable Facebook profile.

Dan Schwartz at the Connecticut Employment Law Blog is focusing on Tropical Storm Dennis and whether workplaces are ready for really bad weather.

The Delaware Employment Law Blog’s Molly DiBianca suggests that employers put a time limit (5 years, according to Molly) on the use of criminal records.

With tongue planted in cheek, Jennifer Hays at the Warren & Hays Blog lists the top 5 reasons not to do an HR audit.

Ross Runkel’s LawMemo Employment Law Blog shares his thoughts on the EEOC’s recent class action filing against AT&T for age discrimination.

Michael Maslanka’s Work Matters suggests that we consider the effect a complaint will have on our intended target before we file it.

Rush Nigut’s Rush on Business draws a lesson for trial lawyers and their clients from Tiger’s loss at the PGA.

Jay Shepherd’s Grunted Employees thinks there are 7 deadly workplace sins.

Kris Dunn – The HR Capitalist – discusses the interplay between non-compete agreements and employee talent.

Wage & Hour Counsel examines the Department of Labor’s internal techniques and strategies for conducting wage and hour investigations.

According to World of Work, in Washington State it’s ok for an employer to fire employees who complain about their boss.

Nolo’s Employment Law Blog reports that managers may be personally liable for unpaid wages if a company goes bankrupt.

Jill Pugh’s Employment Law Blog discusses the recent uptick in pregnancy discrimination claims.

Michael Haberman’s HR Observations, on sexism.

---

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.

Ohio Supreme Court avoids the issue of whether sex discrimination includes lactation

Totes/Isotoner Corp. fired LaNisa Allen for taking unauthorized, extra breaks during her work day. Allen claimed that her termination constituted unlawful sex discrimination because she had taken the breaks for lactation. This morning, in a terse three-page opinion, the Ohio Supreme Court – by a six to one vote – affirmed the legality of Allen’s termination. It did so based on a lack of evidence of pretext in the trial court. It also completed avoided the key issue – whether alleged discrimination due to lactation is included within the scope of Ohio’s employment-discrimination statute as sex discrimination.
Despite the six to one opinion for the employer, three Justices reached the ultimate issue and concluded that Ohio’s proscriptions against employment discrimination on the basis of sex/pregnancy includes lactation.
Justice O’Conner published a lengthy concurrence – with which Chief Justice Moyer concurs – that lactation is covered by Ohio’s proscriptions against employment discrimination on the basis of sex/pregnancy. However, because Allen did not obtain her employer’s permission before taking her lactation breaks, her claim failed:

Although Allen’s unauthorized breaks may have been to pump milk, Allen could not properly engage in such actions without her employer’s knowledge and permission. The [laws] mandate that an employer treat pregnancy with neutrality, but not preferentially.

Justice Pfeifer, dissenting, offers some key questions that he thinks a jury should have been given the opportunity to answer:

• Why Allen’s trips to the restroom outside scheduled break times were different from the restroom trips other employees made outside scheduled break times?
• Did employees have to seek permission from a supervisor to take an unscheduled restroom break.
• What makes Allen’s breaks different if other unscheduled bathroom breaks were allowed?

Despite totes/Isotoner’s victory, employers should not view this case as a license to deny breaks to lactating employees. To the contrary, if another opportunity arises, I have little doubt that a majority of the court will agree with Justice O’Conner, Chief Justice Moyer, and Justice Pfeifer that the definition of sex discrimination covers lactation.
Before you institute a policy prohibiting breast pumping or feeding at work, or terminate a lactating employee for taking breaks, consider how you’ve treated other employees’ breaks during the work day. If you can’t find a consistent pattern of discipline or termination of similar non-lactating employees, you should reconsider the decision.
A copy of the full opinion is available at Allen v. totes/Isotoner Corp. (8/27/09) [PDF].

---

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 finds no liability for conclusions reached during harassment investigation

Can an employee sue you for conclusions reached during an internal harassment complaint? According to the 6th Circuit in Courie v. Alcoa Wheel & Forged Products (8/18/09) [PDF], the answer is no.

Someone left an inappropriate note on an Alcoa cafeteria table where African-American employees sat. Alcoa’s HR department interviewed Courie during its investigation. Courie could not recall the name of the person sitting with him at that table on the day the note was left. Because he could not recall his co-worker’s name, he referred to him as “Jew Boy.” After the interview, Alcoa later sent Courie a warning that it considered that term “racially offensive.” In response, Courie filed a grievance with his union.

Courie later learned that Alcoa and his union had considered settling his original dispute by removing the discipline in exchange for a concession that the statement was inappropriate and that Alcoa reacted appropriately. Based on that proposed settlement, Courie sued Alcoa and his union. claiming discrimination, intentional infliction of emotional distress, and defamation.

The court upheld the lower court’s decision dismissing all of Courie’s claims:

• The discrimination claim failed because the settlement agreement was not an “adverse action.” Indeed, according to the court, it was the opposite of adverse – it proposed to remove the traces of the original written warning from his record.

• Because the proposed settlement agreement was not discriminatory, it could not support a claim for intentional infliction of emotional distress.

• While the court did not address the defamation claim, I’ve previously noted that employers enjoy a (qualified) privilege for statements made during internal investigations.

So, what does this mean for employers? Reasoned rationales for the conclusions reached and discipline imposed during an internal investigation are paramount. The target of an investigation should not be able to come back at you for discrimination, defamation, or anything else in the kitchen sink if all your ducks are in a row.

---

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.