WIRTW #107

Tiger Woods

• Tiger Drives Home a Lesson: Be Careful with Voice Mails – via Mindy Chapman’s Case in Point.

• And In Celebrity News! – from Jason Morris at the EmployeeScreenIQ Blog.

• Tiger Texting – via Rob Radcliff’s Smooth Transitions.

• Tiger’s Brand Bogey – from Jonathan Littman at I Hate People...But It’s Nothing Personal.

• And now for something completely different, Shut Up Already! Tiger Woods Has Taught You Nothing – at Rehaul by Lance Haun.

Discrimination

• Christmas Decorations at Work – from The Word on Employment Law with John Phillips.

• EEOC Releases Semiannual Agenda Prioritizing GINA, Revised ADA Regulations, and a NPRM on ADEA Issues – via Washington Labor & Employment Wire.

• Is Your Organization Required to Have an Affirmative Action Plan? – answered by the New York Labor & Employment Law Report.

• The New York Times On Hiring Discrimination ... Again – via Discriminations.

• Points to ponder when filing responses to EEOC charges – from Mike Maslanka’s Work Matters.

• 9th Cir: ADAAA Is Not Retroactive – by Alaska Employment Law.

Wage & Hour & Benefits

• Working Time FLSA Class Action Hits Amazon Over Punch In/Punch Outs – by Wage & Hour Developments & Highlights.

• Perils of Having Employees Work Through Lunch – by the Overtime Advisor.

• Pharmaceutical Sales Reps Qualify for FLSA "Outside Salespeople" Exemption According to Federal Court in Arizona – by Wage & Hour Counsel.

• Questions as COBRA Assistance Comes to an End – by Jennifer Hays at the Warren & Hays Blog.

Employment Policies

• Snow Day! (Or Not) - Employers Have Flexibility on Winter Storm Policies – by Dan Schwartz at the Connecticut Employment Law Blog.

• Tips for drafting employee handbooks – via Employment Law Bits.

• Social-Media Policy Ideas – by Molly DiBianca at the Delaware Employment Law Blog.

Background Checks

• How Are Employers Using Social Networking? – answered by Mark Toth’s Manpower Employment Blawg.

• EEOC Files Discrimination Case Over Background Checks – by Nick Fishman at the EmployeeScreenIQ Blog.

• More Failures to Keep a Low Profile When Falsely Claiming Disability – via Lowering the Bar.

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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.

Ethics vs. Law: discrimination on the basis of political beliefs

Interesting article by the New York Times’s resident ethicist, Randy Cohen (from the 12/6/09 Sunday Magazine) on whether a company can ethically refuse to hire a candidate because of political views:

You may not. If candidates can do the job, bathe regularly and work well with others, you should hire them. As you note, their “politics do not affect their function.” Is it your position that only people who share your politics should be allowed to make a living?

What is unethical is not necessarily unlawful. Whether by state or federal law, Ohio employers cannot discrimination of the basis of race, color, religion, sex, military status, national origin, disability, age, ancestry, or genetic information. This list does not include political beliefs or affiliation – at least for private employers. Yet, just because something is legal does not mean it makes a good HR practice.

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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.

Department of Labor, and its Wage and Hour Division, set 2010 regulatory agenda

This week, the Department of Labor is hosting a series of live chats through its website. The goal is to outline and discuss the DOL’s regulatory agenda for 2010 [PDF]. Transcripts are available at http://www.dol.gov/regulations/index.htm#chats.

On Monday, Secretary of Labor Solis participated in her own chat. Her highlights:

• One of her priorities is ensuring that low income and minorities receive help from the DOL.
• New FLSA regulations on record keeping will be published in August 2010.
• WHD now has a Director of Training with a staff that has done a comprehensive review of the Wage and Hour training programs and materials. Specifically, they have developed a 12-week written course for WHD’s 250 new investigators.
• Secretary Solis and President Obama support the Employee Free Choice Act; the ball is in Congress’s court.

Yesterday, Wage and Hour Division Deputy Administrator Nancy Leppink conducted its chat. Here are the highlights:

• WHD’s regulatory agenda for 2010 includes proposed rules for child labor, non-displacement of qualified workers under service contracts, FMLA, records to be kept under the FLSA, and other amendments to the FLSA.
• WHD plans to provide additional guidance to employers on how to comply with the recent military leave amendments to the FMLA.
• WHD intends to publish a final rule under the FLSA that will clean up many of the out-dated regulations.
• Wage and Hour recently hired 250 new investigators to boost the division’s ability to ensure compliance with wage and hour laws. As the new staff are trained, the division will target industries in which vulnerable workers are employed and will work to respond to complaints in a timely manner.
• Industries that employ vulnerable workers include agriculture, restaurants, janitorial, construction, and car washes, among others.
• WHD is working on a new Public Service campaign, “We Can Help,”  to inform workers of their rights under wage and hour laws, to be rolled out in early 2010.

All in all, the chats were not all that revealing, but did reinforce that the next three years are going to be different for employers. Secretary Solis has an ambitious agenda to help low income employees, whom she perceives as “at risk.” Continue to follow this space in the coming year for updates on any new DOL regulations as they are released.

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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? 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.