Let’s all try to be a little more gracious

When my family and I flew to Florida last month, we met Jonathon and Amelia Sawyer and their kids in waiting area at the gate. Jonathon is the owner/chef at The Greenhouse Tavern, which Bon Appétit Magazine recently named one of the top 10 best new restaurants in America. We had a nice chat with the Sawyers, and we told them that we’d have to stop in their restaurant sometime since we’d never eaten there. That sometime was last Saturday, when my wife and I had a rare night out. Jonathon and Amelia could not have been more gracious, including a round of after-dinner drinks. Chef Sawyer even came out of the kitchen to say hello and personally thank us for stopping in. On top of everything, the food rated an A+.

If employers treated their employees with half of the degree of grace and hospitality  Jon and Amelia Sawyer gave me and my wife, I’d likely be out of a job. On second thought…

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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.

Can employers require flu shots for their employees?

As H1N1 becomes more widespread, and as the vaccine is beginning to become available, employers are beginning to require that their employees become vaccinated. The question, however, is whether such a practice is legal. According to one New York judge, the answer is that it may not be, at least when the directive comes from the state. That judge temporarily halted a New York State directive requiring that all health care workers be vaccinated for the seasonal flu and swine flu. Yet, as Kelly Brewington at the Baltimore Sun points out, many health care facilities are mandating that all employees receive the seasonal flu and H1N1 vaccines as a condition of their employment.

According to the EEOC, employers can compel all of its employees to take the influenza vaccine, with a couple of important exceptions:

An employee may be entitled to an exemption from a mandatory vaccination requirement based on an ADA disability that prevents him from taking the influenza vaccine. This would be a reasonable accommodation barring undue hardship (significant difficulty or expense). Similarly, under Title VII of the Civil Rights Act of 1964, once an employer receives notice that an employee’s sincerely held religious belief, practice, or observance prevents him from taking the influenza vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship as defined by Title VII (“more than de minimis cost” to the operation of the employer’s business, which is a lower standard than under the ADA).

At least as far as the EEO laws are concerned, private employers can require flu shots as long as you are willing to accommodate employees’ disabilities and religions. The New York case raises different issues because it was state-issued mandate (which raises constitutional privacy issues), as compared to a rule specific to a private workplace.

Do you know? Employment litigation expected to increase in 2010

The international law firm Fulbright & Jaworski has released its Fifth Annual Litigation Trends Survey and Highlights (available in full [PDF], or as an executive summary). The survey of 251 U.S. corporate law departments reveals some interesting trends that suggest that businesses of all sizes should increase their litigation coffers in the coming year.

• Labor and employment lawsuits are the most common type of litigation facing U.S. companies.

• More than half of in-house counsel surveyed felt that the pace of new lawsuits will at least remain stable, and 34% expect an increase in the coming year.

• With employment cases take up the largest portion of corporate dockets.

• Wage and hour lawsuits have the greatest spike in new filings. 19% of U.S. companies cited an increase in wage and hour cases in the past year.

• Moreover, nearly one-third of U.S. companies report an increase in multi-plaintiff or class action age and hour cases.

• Retailers appear to have the most exposure in the wage and hour arena: one-third of retail firms saw an increase in wage-and-hour litigation.

• After wage and hour, companies saw significant increases in five other areas of workplace litigation: discrimination suits, privacy claims, ERISA, disability claims, and age discrimination.

• Companies reported that race discrimination cases have the highest financial exposure, followed by sex discrimination; wage and hour, age discrimination, harassment, retaliation, disability discrimination, non-compete disputes, and FMLA violations.

What does all this data mean for your business? Your legal budgets will likely increase next year. The question you need to answer is whether you want those funds to pay to defend lawsuits, or to proactively audit your internal personnel and employment practices to limit your litigation costs?

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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.

Employee dress and grooming standards

One of my familial responsibilities is the weekly grocery shopping. As is my Sunday custom, I made my way to the local supermarket yesterday afternoon. The trip proceeded as it does every week – until I got to the front of the checkout line. I was greeted by what can only be described as a mess for a cashier. She was large in stature, but that wasn’t her problem. Partly covering her girth was a dirty t-shirt that resembled a piece of deli counter Swiss cheese. Her rolls showed through the holes in her shirt. And, as if the appearance wasn’t bad enough, she emitted an odor that suggested that she could not tell me on what aisle I could find the soap. As I wondered whether to hold my breath or ditch my cart, I decided to write on employee dress and grooming standards.

An employer has the right to require that its employees follow reasonable workplace appearance, grooming, and dress standards. If an employee runs afoul of such a rule, under most circumstances the employer can appropriately discipline the employee. This general rule, however, is sometimes limited by EEO laws:

• The best practice is a gender-neutral dress and grooming standard. An employer may impose a different standard on men and women, but only if neither gender is disproportionately burdened by the gender-specific rule. If you choose to impose a non-neutral policy, it is best to ensure that it is motivated by a legitimate business interest and is not intended to favor one gender over another.

• Transgendered employees pose a particular problem for employers. A dress or grooming rule that discriminates against an employee for failing to adhere to a sex-based stereotype may run afoul of Title VII.

• If an employee dresses or grooms a particular way because of a sincerely held religious belief, an employer may have to accommodate the employee unless the accommodation would cause an undue hardship.

As with all employment rules, it is best to have an employment lawyer review your policy before you roll it out to employees.

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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 #99

Apparently, today is National Boss Day. According to Wikipedia, a State Farm Insurance Company secretary started this recognition in 1958 when she forgot that her boss’s birthday was October 16. The Business of Management thinks this “holiday” is senseless. I agree.

Jason Shinn’s Defending the Digital Workplace highlights the importance of having a written e-mail policy in your company.

Philip Miles’s Lawffice Space discusses accommodating Seasonal Affective Disorder under the recently amended ADA.

The Word on Employment Law with John Phillips thinks we swear too much at work.

Richard Kass at the New York Labor & Employment Law Report shares some best practices on how to question employees suspected of workplace misconduct.

Mary Keating’s Maryland Employment Law Developments discloses the hidden discrimination in using credit reports to evaluation job applicants.

Kris Dunn, The HR Capitalist, on non-compete agreements and a dispute between Starbucks and Dunkin' Donuts.

William Bowser at the Delaware Employment Law Blog draws 5 tips on employee recognition from President Obama’s Nobel Prize.

Denise Cline at The HR Briefcase writes about how to handle employee absences for the swine flu.

Jessica Chappell at the KnowHR Blog takes a tongue-in-cheek look at appropriate versus inappropriate workplace attire.

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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 check on your employees’ absences?

According to a recent survey conducted by careerbuilder.com, 32% of employees report that they played hooky from work at least one day last year when they were not ill. In those one-third of employees, the following reasons were cited:

• Because they just didn’t feel like going to work that day (32%)
• Doctors appointments (31%)
• Relaxation (28%)
• To catch up on sleep (16%)
• Personal errands (13%)
• Something work-related, such as missing a meeting or needing more time to complete a project (12%)
• Housework (10%)
• To spend time with family and friends (10%)

When asked for the most bizarre excuses given by employees for missing work, employers listed the following:

• I got sunburned at a nude beach and can’t wear clothes.
• I woke up in Canada.
• I got caught selling an alligator.
• My buddies locked me in the trunk of an abandoned car after a weekend of drinking.
• I accidentally hit a nun with my motorcycle.

Despite all this data, only 29% of employers reported that they checked up on an absent employee, and only 15% said they have fired a worker for missing work without a legitimate excuse.

To my readers: Do you check on absent employees? Do you discipline or terminate employees for illegitimate absences? Or, do you think that employees are entitled to a certain number of mental health or personal days each year?

The logical answer to all of these issues – paid time off, instead of sick days.

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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.

Textual harassment

While no one will ever confuse the New York Post with high journalism, Monday’s edition has a thoughtful piece by reporter Brian Moore on what has become known as “textual harassment.”

Digital technology has enabled workers to be more productive, allowed them to communicate around the world instantaneously and generally redefined almost every job description on Earth.

But it’s also given cubicle creeps and departmental degenerates new ways to sexually harass co-workers and underlings.

While texting, e-mails and comments on social media sites will never replace the grand tradition of bosses directly pressuring subordinates for sex, lawyers and consultants say digital communication has opened up a new front in the war against workplace harassment.

Textual harassment isn’t necessarily new – harassment is harassment. What is new, however, is the media used to deliver the harassing messages. Today, harassing messages can be delivered instantly to an target via cell phone, instant message, Facebook wall, twitter tweets, and other on-line and other digital media. And, these new media provide companies a new weapon in combating workplace harassment. Where harassment cases often used to be instances of “he said/she said,” textual harassment” leaves a digital paper trail of the alleged transgressions. Because of the digital trail, the investigations of these types of harassment claims are often less complex and the corrective action easier to decide.

[Hat tip: Neil Klingshirn]

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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.