Cleveland bans discrimination based on gender identity and expression

Cleveland’s city ordinances already prohibit employment discrimination based on sexual orientation. As of this week, you can add “gender identity and expression” to Cleveland’s expansive list of protected classes. Violations carry a potential $1,000 fine and 30-day jail sentence.

Cleveland’s ordinance may be foreshadowing of broader state and federal legislation, both of which would grant protected status for sexual orientation and gender identity:

• Ohio House passes bill banning sexual orientation discrimination; fight moves to Senate
• Do you know? Sexual orientation and gender identity discrimination
• ENDA Now “Top Priority” for Obama Administration (courtesy of Paul Secunda at the Workplace Prof Blog)

For now, if you are an employer located in the City of Cleveland, at a minimum you should amend your EEO and anti-discrimination policies to cover gender identity.

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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? Opposing counsel may have access to your employees during litigation

Businesses often think that once litigation is filed, their employees are off limits to the other side, absent a deposition subpoena. After all, conventional wisdom teaches that it is unethical for an attorney to communicate with someone known to be represented by an attorney without the other attorney’s consent. At least in Ohio, however, such thinking is incorrect and can lead to disastrous results.

According to Advisory Opinion 2005-03 [DOC], an opposing party is only prohibited from speaking to a small fraction of a business’s current employees. 

Communications with Current Employees

• Opposing counsel is only prohibited from communicating with corporate employees who supervise, direct or regularly consult with the corporation’s lawyer concerning the matter, or has authority to obligate the corporation with respect to the matter, or whose act or omission in connection with the matter may be imputed to the corporation for purposes of civil or criminal liability.

• Opposing counsel may always communicate without the consent of a corporation’s lawyer with any other current employees.

Communications with Former Employees

• Opposing counsel may communicate with any former employees of the corporation without notification or consent of corporate counsel.

• An attorney may not, however, communicate if a former employee is represented by his or her own counsel in the matter, or if a former employee has asked the corporation’s counsel to provide representation in the matter.

Thus, the only employees to whom an opposing attorney absolutely cannot speak are current employees whose actions can bind the company or who are actively involved in the litigation decision making. All other employees – past and present – are fair game.

Further, businesses could find themselves defending an offshoot retaliation claim if they try to interfere with an employee who wants to talk to or assist the other side.

Next Tuesday we’ll look at Federal Rule of Civil Procedure 26(b)(3)(C), which gives employers some protections via the discovery of witness statements.

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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.

Court orders forensic examinations of defendant's hard drives to remedy discovery abuses

Although it's hard to tell from the opinion, it’s safe to assume that Bennett v. Martin (Ohio Ct. App. 11/24/09) [PDF] started out like any other run of the mill discrimination lawsuit. Then, the defendant started playing hide the ball in discovery, which, after lots of motions, led to the trial court ordering the forensic imaging of the employer’s hard drives to confirm or deny the existence of certain documents. Bennett is an excellent lesson in what can go wrong in litigation, and I commend it to your reading so that you can see how garden variety discovery disputes can quickly escalate and consume an entire case.

The bottom line for employers (and really any litigant) – pick your battles. If the court thinks you’re being dishonest with your opponent, it will give the other side latitude to figure it out. If the court thinks you’re being dishonest with it (as was the case in Bennett), then all bets are off.

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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 #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.