Do you know? Employee witness statements

Last week I discussed opposing counsel’s ability to interview your company’s current and former employees, even during active litigation. Today, I’ll discuss how you can get your hands on those witness statements without having your counsel engage in expensive discovery fights over work product issues.

Federal Rule of Civil Procedure 26(b)(3)(C) states:

Previous Statement. Any party or other person may, on request and without the required showing, obtain the person’s own previous statement about the action or its subject matter. If the request is refused, the person may move for a court order, and Rule 37(a)(5) applies to the award of expenses. A previous statement is either:

     (i) a written statement that the person has signed or otherwise adopted or approved; or

     (ii) a contemporaneous stenographic, mechanical, electrical, or other recording – or a transcription of it – that recites substantially verbatim the person's oral statement.

The catch – you have to be in federal court. Ohio’s parallel rule is limited to statements of parties only.

If you are in federal court, anyone who previously gave a written or recorded statement to an attorney has a right to receive a copy of that statement upon request. What does this rule mean for employers? It is in your best interest to maintain good relations with all current and former employees. You cannot stop an employee from talking to a plaintiff’s attorney, but you can prod that employee to request a copy of his or her statement. What do you think the likelihood is of an employee with whom you have a bad relationship helping you out?

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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.

Golfer tests limits of ADA and performance enhancing drugs

Last month, Doug Barron became the first golfer suspended by the PGA for failing a drug test. Shortly thereafter, he sued the PGA, claiming that his suspension violated the ADA. Specifically, he claimed that the PGA failed to accommodate his use of medications –  beta blockers to treat a heart condition and synthetic male hormone to treat a low testosterone count.

According to CNN.com, a federal magistrate has preliminarily rejected Barron’s claim that his low testosterone level qualifies as a disability protected by the ADA. Under the amended ADA, major life activities include “the operation of major bodily functions, including … reproductive functions.” Likely, a low testosterone count qualifies an ADA-protected disability. Thus, I would argue that a low testosterone count actually does qualify as a protected disability.

Under the new ADA, however, the issue of what qualifies as a disability will seldom be litigated. Most physical and mental impairments will qualify as disabilities. Instead, the focus of the inquiry in disability discrimination litigation will be whether the employee is qualified – whether he or she can perform the essential functions of the job with or without reasonable accommodation.

On the issue of drug testing in professional sports, I would argue that it is essential that all athletes perform on the same level without artificial enhancement. For instance, testosterone promotes muscle mass and strength and beta blockers reduce anxiety and sharpen focus. Thus, I would argue that whether an athlete’s condition qualifies as a disability is irrelevant, because he or she cannot perform there is no accommodation that would allow the taking of performance enhancers (even if used medicinally).

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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 #106

Workplace Technology Issues

• On whether emails sent by an employee to his or her attorney using an employer’s email system is protected by the attorney client privilege – compare Howard Bashman’s How Appealing to Electronic Discovery Law.

• The $1-Million Email Suit, courtesy of Roger Matus’ Death By Email.

• Sample Social-Media Guidelines, complied by Molly DiBianca at the Delaware Employment Law Blog.

• Defeating Liability For Employees' Off-Duty Internet Activity, from Workplace Privacy Counsel.

In the News

• New GAO Report on Civil Rights Enforcement During the Prior Administration, by Marcia McCormick at the Workplace Prof Blog.

• Tiger by the Tail: Employment Lessons? – via The Word on Employment Law with John Phillips.

• Employment Law Backlash, from Philip Miles’s Lawffice Space.

Wage & Hour & Benefits

• DOL Agrees: With Intermittent Leave, Enough Is Enough, from BLR’s HR Daily Advisor.

• Wanna Know a Secret? U.S. Department of Labor Updates Free Guide on Laws for Employers, by Dan Schwartz at the Connecticut Employment Law Blog.

• COBRA Subsidy Likely To Expand - Proposed Legislation Would Extend and Expand Subsidy for Former Employees, via Hunton Employment & Labor Perspectives.

• Learned Professionals-Employers Take Care, by the Overtime Advisor.

• Does your return-to-work policy run afoul of the ADA? – from Sindy Warren at the Warren & Hays Blog.

Office Holiday Parties

• Top 5 Holiday Party Tips, crafted by Mark Toth’s Manpower Employment Blawg.

• 20 Tips for Your Workplace Holiday Non-Party, from U.S. News & World Report.

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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.

Are Christmas closings discriminatory?

HR Review, a British HR website, asks the following question: “Is closing office for  Christmas ‘indirect discrimination’?” For example, would anyone doubt the discriminatory nature of a policy that offers maternity leave to new moms but denies the same to new dads? Yet, no one bats an eye when a business shuts down, with pay, for Christmas, but requires its Jewish employees to use a vacation day if they want to be paid to stay home on Yom Kippur.

I have two thoughts:

1. This question does not compare apples to apples. Businesses offer designated paid holidays as a benefit to employees. Some are religious and some are not. If a business remained open on Christmas (a hospital, for example) and gave its Christian employees the day off with pay and without requiring the use of a vacation day, employees of other faiths would have a legitimate complaint. But, granting a paid day off to all employees as a benefit is simply not a fair comparison.

2. An employer does not have to make a religious accommodation if it imposes an undue hardship. In religious discrimination cases, undue hardship is a low standard – anything more than a de minimus cost or burden. The possible accommodation – being paid for a religious holiday without using a vacation day – would impose an undue hardship. An employee should not expect to receive what would amount to an extra paid vacation day just because of a religious affiliation.

Everyone enjoy your day off in a few weeks.

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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.

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.