WIRTW #105

I broken this week’s post holiday review into categories. I figured I’d make it easier for everyone to follow in their post-Turkey and pumpkin pie haze.

Technology in the Workplace

• Larry Johnson: A Twitter Termination – courtesy of Molly DiBianca at the Delaware Employment Law Blog.

• Social Networks and Employment Law: Are you Putting your Organization at Risk? [PDF] – by Peopleclick.

• Employee Privacy: What’s Your Policy? – from Sindy Warren at the Warren & Hays Blog.

• LinkedIn Recommendations - A Hot Topic Among HR Professionals, But Should It Be? – by Dan Schwartz at the Connecticut Employment Law Blog. I wrote on this issue over the summer, and have an opinion very different from Dan’s.

• Discriminatory Twist in Networking Sites Puts Recruiters in Peril – by Workforce Management.

• Fake Job Reference Services Add New Wrinkle to Screening – by Jason Morris at the IQ Blog.

Religious Discrimination

• Dress Code v. Religious Beliefs: Who wins? – via Debra Reilly’s Workplace Investigations.

• When faith collides with fashion – from Michael Maslanka’s Work Matters.

• I’ve also previously given my thoughts on this issue – Religious accommodation versus public image.

Sexual Harassment

• How Can a Sexual Harassment Investigator Tell if the Alleged Conduct was Unwelcome? and Choose Wisely When Using an Employee to Conduct Your Workplace Investigation – both from Debra Reilly’s Workplace Investigations.

• Virtual Harassment: When Online Behavior Becomes a Real-World Problem – by Brian Molinari at the Prima Facie Law Blog.

• Stare Masters: Can Co-Worker Ogling Spark a Harassment Claim? – via Mindy Chapman’s Case in Point.

Wage & Hour

• Financial Service Workers May Be Glorified “Production Workers” Who Are Entitled to Overtime -- Davis v. J.P. Morgan Chase & Co. – from Brian Van Vleck at the California Workforce Resource Blog.

• Employees Are Exempt or Non-Exempt - Not Both – by the Overtime Advisor.

• More Enforcement for Wage and Hour Violations – via Mary Keating’s Maryland Employment Law Developments.

• U.S. Department of Labor Announces (Again) Increased Wage and Hour Enforcement – via Eric Welter’s Laconic Law Blog.

Miscellaneous

• A dog eats dog world: Petsmart sues over noncompete – from Rob Radcliff’s Smooth Transitions.

• Supreme Court Looking at Taking Case to Resolve “Cat’s Paw” Issue – via the HR Lawyer’s Blog. For more on the Cat’s Paw, see EEOC settles landmark “cat’s paw” discrimination case and The “Cat’s Paw” is alive and well in the 6th Circuit -- Pro se plaintiff’s trial win affirmed by Sixth Circuit.

• Union Election Win Rate Continues Upward In 2009 - 73% Win Rate Casts Further Doubt On Need For EFCA – by Hunton Employment & Labor Perspectives.

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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.

Insurance company pulls disability benefits over Facebook photo

A Canadian woman has lost her disability benefits because of photos pasted on Facebook. Cleveland.com has the details:

A Canadian woman on sick leave for depression said Monday she would fight an insurance company's decision to cut her benefits after her agent found photos on Facebook of her vacationing, at a bar and at a party. Nathalie Blanchard said Monday she was diagnosed with major depression and was receiving monthly sick-leave benefits until payments dried up this fall. When Blanchard called her insurance provider, Manulife, to find out why, she says she was told the Facebook photos showed she was able to work.

This story raises some practical tips for employers. There is a wealth of information about employees publicly available on the internet. Having said that, such information must be accessed and used responsibly. Employers should avoid using surreptitious means to access employees’ social networking. Also, employers should guard against the use of any protected information. For example, medical information could lead to an ADA claim, regardless of whether the employee voluntarily put that information on the web for the world to see.

For more on this story, click over to the thoughts of my fellow bloggers and legal journalists:

• Lowering the Bar: Facebook Pics Prove You Aren't Disabled, Insurer Tells Depressed Woman.
• Toronto Employment Law Blog: Insurance Company to applicant; According to your Facebook photos, you don't look too depressed to work.
• Employer Law Report: Facebook Photos Prompt Termination of Long Term Disability Benefits.
• Law.com: Insurer Questions Woman’s Depression Claim After Spotting Her Party Pics on Facebook.
• ABA Journal: Depressed Woman Loses Leave Benefits After Facebook Shows Her Having Fun.

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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? H1N1 and employees’ leave rights

The Department of Labor has published two guides for employers trying to navigate H1N1 and employees’ leave and pay rights (both PDFs):

• Pandemic Flu and the Family and Medical Leave Act: Questions and Answers
• Pandemic Flu and the Fair Labor Standards Act: Questions and Answers

Neither presents earth-shattering legal information. Having said that, the Department of Labor has done a nice job compiling useful tips for employers to turn to when an employee misses work because of the H1N1. Some of the more interesting nuggets are as follows:

FMLA

• The Department of Labor urges employees who themselves have H1N1, or who have family members with H1N1, to stay home. However, the DOL takes no position on whether H1N1 is covered under the FMLA as a “serious health condition.” Employers, though, are “encouraged to support these and other community mitigation strategies and should consider flexible leave policies for their employees.”
• The FMLA does not cover leave taken by an employee to avoid exposure to the flu.
• If an employee’s child’s school is closed, the FMLA does not require leave to care for a healthy child at home.
• Federal law does not require employers to provide paid leave to employees who are absent from work because they are sick with pandemic flu, have been exposed to someone with the flu, or are caring for someone with the flu.
• An employer may require an employee who is out sick with pandemic influenza to provide a doctor’s note, submit to a medical exam, or remain symptom-free for a specified amount of time before returning to work, potentially subject to limits in the FMLA and ADA.

FLSA

• If a business temporarily closes because of H1N1, that employer is not obligated to pay non-exempt employees for any hours they do not work.
• An employer can require that an employee perform work outside of the employee’s job description to cover for an absent employee.
• An employer may encourage or require employees to telework (work from an alternative location such as home) as an infection control strategy. Employers do not have to pay the same wage for telework, unless required to do so by a collective bargaining agreement or other contract.
• Employers are not required to cover additional costs that employees may incur if they work from home (DSL line, computer, additional phone line, increased use of electricity, etc.)?

For more on H1N1 preparedness, I recommend the following earlier posts:

• Do you know? Handling employees with suspected swine flu
• Can employers require flu shots for their employees?
• EEOC chimes in on swine flu with guides on how to prepare and remain Title VII/ADA compliant

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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.

What to look for in an employment lawyer

I presented last week at a marketing group I recently joined. In briefly speaking about who I am and what I do, it got me thinking about what companies should look for when hiring employment counsel. Here are my thoughts.

1. Experience and knowledge in the area. When you need to terminate an employee, or when an employee lodges a harassment complaint, you want to be able to pick up the phone and receive immediate advice about how to handle the situation. You don’t want your employment attorney to tell you that he or she will have to look into the situation and get back to you in a week with an answer. Employment law complex, ever-changing, and difficult to dabble in. An investment in someone who knows the area is one of the the most important HR decisions you can make for your business.

2. Willingness to get to know your business. There are legal decisions and business decisions, and the latter will always influence the former. Your counsel cannot provide sound legal advice without putting in the time and effort to know your business and its operations.

3. Proactive, not reactive. There is nothing businesses like less than spending money on lawyers. Having said that, employers are often better off spending a few thousand dollars spotting issues before they become problems than spending many hundreds of thousands of dollars fixing problems later. Your lawyer should be counseling you in this direction.

4. Demonstrated track record of trying employment cases. The best way to get a fair result out of a case is to have a lawyer who has actually tried employment cases. Litigation often devolves into a high stakes game of chicken. If your attorney is not comfortable in front of a jury, it becomes increasingly difficult not to blink first.

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.