WIRTW #104

This week’s review starts with a bunch of recent reports and statistics that shed some light on employment practices:

• Paul Secunda, at the Workplace Prof Blog, discusses a recent General Accounting Office study that “many employers do not report workplace injuries and illnesses for fear of increasing their workers’ compensation costs or hurting their chances of winning contracts.”

• The Washington DC Employment Law Update, on the EEOC’s Performance and Accountability Report FY 2009 [PDF]. What’s more interesting to me than the fact that the EEOC had its 2nd busiest year ever, is that it currently has a backlog of 85,768 pending charges. That number explains why you’re still waiting for a determination 6 or 9 months after you’ve submitted your position statement.

• Mark Toth’s Manpower Employment Blawg shares the latest jury verdict research in employment cases. 2 key stats – employers have the lowest win rate in discrimination cases in a decade (39%), and the median settlement amount jumped 20% last year, to $90,000.

David Yamada’s Minding the Workplace shares his most recent research on workplace bullying. Meanwhile, Joel Stashenko, writing at the New York Law Journal, shares a recent New York State case concerning a workplace bullying club.

H1N1 continues to dominate the headlines. Bill Allen, at the Washington Labor & Employment Wire, digests some recently introduced paid sick leave legislation that is intended to help employees cope with H1N1, and Steve Bruce, at the BLR HR Daily Advisor, thinks that the ADA will limit some of the questions you can ask employees about their current health (including whether they have the swine flu).

This week also brings a couple of really good posts on social media: Molly DiBianca, at the Delaware Employment Law Blog, shares her recent presentation on social media and hiring, and Stephanie Thomas cautions that using social networking sites for recruiting could lead to disparate impact discrimination claims because of the demographics of their typical user.

In other background check news, FYIscreening.com comments on the legality of DNA tests for hiring decisions (using DNA for any employment decision is now illegal), and Nolo’s Employment Law Blog discusses whether bankruptcy is a permissible factor in a hiring decision.

In other news about genetic testing, the FMLA Blog has an excellent summary of the impact of the Genetic Information Nondiscrimination Act on FMLA medical certifications.

The EFCA Report has a very thoughtful take on the constitutionality of the proposed Employee Free Choice Act.

Michael Maslanka’s Work Matters, on the propriety of zero tolerance work rules.

Christopher McKinney’s HR Lawyer’s Blog, on employment decisions based on conduct outside of the workplace.

Sindy Warren, at the Warren & Hays Blog, on family responsibility discrimination.

Melanie McClure, at Arkansas Employment Law, on pregnancy as a disability under the recently amended 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.

OSHA offers Black Friday guidance for retailers

Planning to hit next week’s Black Friday sales? Hoping to avoid being trampled like a Pamplona encierro? Luckily for you, our Department of Labor has come to your rescue. OSHA has release a fact sheet on Crowd Control Safety Tips For Retailers [PDF]. According to the Fact Sheet:

OSHA has prepared these guidelines to help employers and store owners avoid injuries during the holiday shopping season, or other events where large crowds may gather.

OSHA’s tips include:

• Having trained security personnel or police officers on site.
• Setting up barricades or rope lines for pedestrians and crowd control well in advance of customers arriving at the store.
• Making sure that barricades are set up so that the customers’ line does not start right at the entrance of the store.
• Preparing an emergency plan that addresses potential dangers.
• Having security personnel or customer service representatives explain approach and entrance procedures to the arriving public.
• Not allowing additional customers to enter the store when it reaches its maximum occupancy level and not blocking or locking exit doors.

Hopefully management of the store you’re visiting for that $99 HDTV looks at OSHA’s website. Happy and safe shopping.

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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.

GINA takes effect Saturday, November 21

Next week, we will all gather around the dining room table and share what we are thankful for. Next week also brings employers something that they may not be thankful for – a new employment law to comply with. The Genetic Information Nondiscrimination Act, which President Bush signed into law 18 long months ago, finally takes effect Saturday, November 21. Let’s take a quick look at what GINA means for businesses with 15 or more employees (its coverage limit).

• GINA adds “genetic information” to the list of classes of employees protected by the federal employment discrimination laws.

• “Genetic information” is broadly defined to cover information about an employee’s genetic tests, the genetic tests of an employee’s family members, and the manifestation of a disease or disorder in an employee’s family members.

• Drug and alcohol tests are not considered covered “genetic tests.”

• GINA makes it unlawful for an employer to make an employment-related decision with respect to an employee because of genetic information.

• GINA also makes its generally illegal for an employer to request, require, or purchase genetic information about an employee or an employee’s family member. Key exceptions include inadvertently obtained genetic information, qualifying health or genetic services such as voluntary wellness programs, FMLA medical certifications, and commercially and publicly available documents. Practically, this means that employers can no longer ask employees for family medical histories.

• If an employer obtains genetic information about an employee, it must maintain the information on separate forms and in separate medical files and threat it as a confidential medical record of the employee, similar to the treatment of other medical information under the ADA.

• An employer is only permitted to disclose genetic information upon a specific written request, in response to a court order, to comply with the FMLA’s certification procedures, or other very limited circumstances.

• Employees have the same rights and remedies for alleged violations of GINA as they do for alleged violations of Title VII.

GINA is the most expansive employment discrimination law to take effect in the last 20 years. For more information, I recommend the EEOC’s informational page on GINA (which includes links to the statute and its proposed regulations), and Steven Greenhouse’s article from the November 15 New York Times.

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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? Reliance on DOL opinions

Do you know that it is an absolute defense to a wage and hour claim that you relied on a written opinion of the Department of Labor in making your minimum wage or overtime payments? According to 29 U.S.C. 259:

[N]o employer shall be subject to any liability or punishment for or on account of the failure of the employer to pay minimum wages or overtime compensation if he pleads and proves that the act or omission complained of was in good faith in conformity with and in reliance on any written administrative regulation, order, ruling, approval, or interpretation, of the [Department of Labor].

The Department of Labor may not be the most friendly place for employers rights now (see Wage & Hour: Not Just Collective Actions Anymore), but its website is a wealth of wage and hour information for employers. It lists more than 200 formal opinion letters that provide a step-by-step guide on how to comply with the FLSA. And, if you rely on one of those letters in paying an employee, you have a defense to a minimum wage or overtime lawsuit.

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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.

Smoking as a disability redux

It takes a big man to admit when he’s wrong. I’m about to be a big man.

A little over a year ago I engaged in a debate with Michael Moore of the Pennsylvania Labor & Employment Blog about whether the ADA Amendments Act would protect nicotine addiction as a disability. At the time, I wrote as follows:

Whether or not something is a disability with or without remedial measures, however, is only one step in the analysis. The next step is to determine whether that disability “materially restricts” (using the language of the ADAAA) a major life activity. What major life activity does smoking or nicotine addiction materially restrict? Breathing? Maybe, but only if one’s lungs are compromised from years of smoking. At that point, a bronchial disease might qualify as a disability, but how will allowing employees to smoke reasonably accommodate that disability? If anything, an employer’s anti-smoking initiatives present a better accommodation for an employee’s breathing problems.

After reviewing the proposed regulations implementing the ADAAA, I have changed my opinion. I now believe that the ADA can protect an employee’s nicotine addiction, but for different reasons than I previously discussed.

The ADA does not just protect employees’ disabilities, but also protects employees who are “regarded as” having a physical or mental impairment. Critically, an employee is now protected under the “regarded as” prong regardless of whether or not the impairment limits or is perceived to limit a major life activity, and regardless of whether the employer believes the individual was substantially limited in any major life activity. The coverage of this protection is extremely broad. The only exception to the “regarded as” prong is when the impairment is transitory (lasting or expected to last for six months or less) and minor. Examples of such uncovered impairments include a sprained wrist, a broken limb that is expected to heal, the common cold, and the seasonal flu. Employers do not have to make reasonable accommodations for “regarded as” disabilities, but are still prohibited from taking adverse actions because of them.

At the ABA Labor & Employment Conference last week, I had the opportunity to ask Peggy Mastroianni, EEOC Associate Legal Counsel and author of the ADAAA’s proposed regulations, if the EEOC has a position on the coverage of smoking under the ADA. Her answer was that there is no formal EEOC position. The EEOC’s silence notwithstanding, the “regarded as” prong of the new ADA is sufficiently broad to possibly encompass actions taken against employees pursuant to employer anti-smoking policies.

What does all of this mean for employers? Employees can claim that anti-smoking policies violate the ADA. Addiction is a protected disability. Diseases related to or caused by smoking (cancers, lung diseases, asthma, and other respiratory conditions, for example) are also protected disabilities. Employees will claim that an adverse action taken pursuant to an anti-smoking policy is being taken because the employer regards the employee as disabled. Adverse actions taken against employees because of smoking should now be viewed as high risk, at least until courts begin weighing in on this controversial issue.

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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 #103

The Ft. Hood tragedy dominated the news and the blogs this week. The Word on Employment Law with John Phillips shares his thought on workplace violence, and Sindy Warren, at the Warren & Hays Blog, reminds employers that national origin discrimination is illegal, even when an employee fits a particular profile.

This week also brought some interesting news about age discrimination. Mary Keating’s Maryland Employment Law Developments comments on a recent New York Times op ed debating whether age claims have second-class status to other forms of discrimination. Philip Miles, on his Lawffice Space blog, is shocked that in this down economy, the EEOC is poised to release statistics that the number of age charges filed in 2009 has fallen by 7%.

Happy 40th birthday Sesame Street. Two lawyers who have done work for the Sesame Workshop and other Jim Henson entities share their memories with Zach Lowe at the American Lawyer.

Jonathan Segal, writing at BusinessWeek.com, shares his top 10 things not to say while firing an employee.

Paul Secunda, at the Workplace Prof Blog, discusses the Employment Non-Discrimination Act – banning sexual orientation discrimination – being a “top priority” for the Obama administration.

LaborPains shares how the SEIU teaches its members to talk about the Employee Free Choice Act.

The Washington DC Employment Law Update links to OSHA’s recently published H1N1 guidance website.

Workplace Investigations, on what makes an investigation thorough.

Workplace Horizons reports that Congress is considering extending COBRA coverage and the premium subsidy.

The Overtime Advisor reminds employers that private employers usually cannot use the services of unpaid volunteers. For my thoughts on the issue of when private employers can get away with not paying a volunteer, see Do you know? Unpaid internships.

Kris Dunn, The HR Capitalist, thinks that if you use profanity at work you should think twice before you file that lawsuit claiming you were offended by others’ workplace shenanigans.

Dennis Westlind, at World of Work, reports that that the EEOC’s ability to issue subpoenas after it has issued a right to sue letter has been upheld.

Bob Sutton thinks that there are 21 things that great bosses do.

The Evil HR Lady offers some advice to a retiring employee seeking severance.

Finally, the Email FAIL Blog has yet another example of why people need to be careful before clicking the send button (link is SFW, but its click-thru might not be).

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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.

Googling job applicants

According a prediction by Dan Schawbel at the Personal Branding Blog (courtesy of FYIscreening.com), by 2012 100% of companies will be conducting informal on-line background checks of job candidates. This prediction dovetails the following comment from one of the presenters during the ABA’s Labor & Employment Conference, discussing this very issue, “Would you date someone without Googling them first?” His point is a valid one. A hiring decision deserves at least the same minimum level of scrutiny and diligence as a first date.

Informal background checks are subject to a lot of debate in the background screening industry. There is a justified fear that a lot of the information on the internet is unreliable and unverifiable. I have another problem with HR departments willy-nilly performing internet searches on job applicants – the risk that such a search will disclose protected information such as age, sex, race, or medical information.

Consider the following example. Jane Doe submits a job application to ABC Corp. ABC’s HR department, before even deciding whether to interview Ms. Doe, types her name into Google. What happens if a breast cancer survivor group pops up? If ABC declines to interview Ms. Doe, do you think it would be opening itself up to a claim that it failed to hire her because it regarded her as disabled?

Despite these risks, internet searches have some real value for employers. They just have be done carefully and with certain built-in protections:

1. Consult with your employment attorney to develop policies, procedures, and guidelines for the gathering and use of internet-based information without running afoul of EEO and other laws.
2. Print a clear disclaimer on the job application that you may conduct an internet search, including sites such as Facebook, MySpace, and LinkedIn, and general searches using search engines such as Google and Bing.
3. Only conduct the search after a candidate has been made a conditional job offer.
4. Consider using a third-party to do the searching, with instructions that any sensitive, protected, or EEO information not be disclosed back to you.
5. Do not limit yourself to internet searches as the only form of background screening.

The internet holds a wealth of information about potential employees. Be careful in how your hirers and recruiters handle this tool to avoid stepping in a big EEO trap.