7. Genetic Information Discrimination. On November 21, it became illegal for employers to discriminate on the basis of genetic information, creating the first new federally protected class in nearly two decades.
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.
10. Ohio Supreme Court punts on Employees’ Lactation Rights. In Allen v. totes/Isotoner Corp., the Ohio Supreme Court dodged the issue of whether alleged discrimination due to lactation is included within the scope of Ohio’s employment-discrimination statute as sex discrimination. Before you think that you can deny a female employee’s lactation request, consider that two of the Court’s more conservative justices wrote a separate opinion in which they unequivocally concluded that lactation is covered by Ohio’s proscriptions against employment discrimination on the basis of sex/pregnancy.
9. New FMLA Regulations and ADA Amendments Take Effect. Both are holdovers from the last year of the Bush administration, and both greatly impact how employers handle employees’ medical issues. The FMLA regulations greatly increase employers’ access to medical information. The paradigm-changing ADA amendments shift the focus in ADA lawsuits from whether an employee meets the definition of “disability” to what accommodations will enable an employee to perform the essential functions of the job.
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.
President Obama has enacted legislation that both expands and extends the original federal COBRA subsidy created by the American Recovery and Reinvestment Act of 2009. If you recall, employees who were involuntarily terminated prior to December 31, 2009, received a 65% subsidy of their COBRA premiums for up to nine months. The new legislation:
Expands the total allowable time an individual can claim the COBRA subsidy by six months (from nine to 15 months); and
Extends the subsidy to individuals who are involuntarily terminated between January 1, 2010, and February 28, 2010.
The legislation also includes two new notification requirements for plan administrators within 60 days:
To any individual who was eligible for the COBRA subsidy or who becomes eligible for COBRA at any time on or after October 31, 2009, notice of the expanded benefits.
To any individuals who lost their subsidy because they reached the 9-month limit and failed to make timely payments of COBRA premiums thereafter, notice regarding the expanded benefits, including information on the ability to make retroactive premium payments.
Employers will have to amend their current COBRA paperwork to reflect these changes. Dan Schwartz at Connecticut Employment Law lists 5 steps employers should be taking now, in light of these changes:
Compile a list of individuals who are currently receiving the COBRA subsidy. Those individuals are going to need to be informed that the period is going to be extended by 15 months and that to receive the subsidy they will need to continue to pay the premium as they have.
Compile a list of individuals who were receiving the COBRA subsidy but whose nine months of eligibility had expired. For those individuals, they will need to be informed that they can "re-start" COBRA. Sample notices from the DOL should be available for this purpose in the next few days.
Compile a list of individuals are COBRA eligible, but who were not going to receive the COBRA subsidy because the time period was going to expire beforehand. This will typically include those who were terminated within the last month, who were likely continuing on the employer's health plan until December 31, 2009. Those individuals will now need to receive new notices that they will be eligible for the COBRA subsidy; again, the DOL should be preparing sample notices in the next few days.
In the interim, employers may want to send out a letter to all such individuals informing them that changes are on the way and that you will be providing them with updates as they become available. This might keep your HR staff a little less busy answering phone calls and give them some more time to comply with this law.
Going forward for the next 75 days or so, employers will need to inform those who are laid off that they may be eligible for this COBRA subsidy. Again, those terminated by 2/28/10 will be eligible regardless of when the actual COBRA period is scheduled to begin.
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.
Does your business have an electronic communications policy? Last week, Bowman v. Butler Township provided a gentle reminder of why your business should have one. Here are some points to consider when putting a technology policy in place in your workplace.
Is your technology limited to work-related use only, or will you permit some personal non-work use? For example, can email be used for personal reasons? What websites (YouTube, Amazon, eBay, CNN, ESPN?) are off-limits?
Account for the handling of your business’s trade secrets, confidential, and proprietary information.
Remind employees of their non-harassment obligations. Offensive, demeaning, or disruptive messages should always be prohibited, as should offensive racist, discriminatory, or sexual content.
Advise employees that what is transmitted over the company’s system belongs to the company and employee do not have any expectation of privacy.
Whatever degree of monitoring you are going to undertake, let employees know and obtain their consent.
For how long are you going to store electronic content and how often is it deleted? Tie together your communications policy and records retention policy.
Are employees allowed to remove electronic data from the workplace?
Provide for virus protection.
As with all employment policies, account for discipline for violations.
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.
The facts of Weimer v. Honda of Am. (6th Cir. 12/14/09) [pdf] are straight forward. James Weimer requested FMLA leave from Honda after injuring his head at work, which Honda approved. After Weimer returned to work, two of his neighbors reported to Honda that it had seen Weimer build a new front porch on his home while on leave. Honda conducted an investigation, which included surveillance video. During the investigation, Weimer admitted \to working on his porch during his FMLA leave. Honda terminated him for misrepresenting his need for medical leave.
The 6th Circuit held that the jury, which found in Honda’s favor, was properly instructed that Honda could prevail if it was wrong as to its stated reason for discharge, but its belief was honestly held:
Weimer asserts that the only way the jury should have been able to decide against him was to conclude that he had deliberately lied to the physicians to go on FMLA leave, and he did not actually have a serious health condition. If Weimer engaged in personal behavior at home that was beyond the job-related restrictions given to him by his physicians, he argues he could do so at his own risk….
When considering whether Honda terminated Weimer for a legitimate reason, the jury was instructed that the issue was not so much whether Weimer actually lied, but rather whether Honda reasonably and honestly believed that Weimer lied….
Honda presented evidence of its investigation into Weimer’s alleged misrepresentations, including the video surveillance tape, interviews with eye-witnesses who saw Weimer working on his porch, and who reported that Weimer admitted that he came back to work because he realized he had been “busted,” and interviews with Weimer himself. Weimer’s own testimony at trial included contradictory statements about his activities that would lead a reasonable fact finder to question his credibility. There was sufficient evidence for the jury to conclude that Honda reasonably relied on the facts before it at the time its decision to terminate Weimer was made.
The takeaway for employers from the Weimer case is to make sure that all reasons in support of a termination are documented. Because Honda could prove that Weimer violated its conduct standards, it became irrelevant whether he had actually lied about his need for FMLA leave. All that matter is that Honda could back-up its conclusion by its investigation. If you can verify the legitimacy of a termination rationale, a court is unlikely to second-guess you, even if your judgment turns out to be incorrect after the fact.
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.
The big news of the week is the U.S. Supreme Court’s decision to hear the appeal in Quon v. Arch Wireless. The issue in that case is whether a police officer had an expectation of privacy in text messages sent from his employer-owned mobile device. The court of appeals ruled for the employee earlier this year. While this case involves the constitutional privacy rights of public employees, I hold out a glimmer of hope that the Supremes will give broader insight into the rights of all employers to keep tabs on how employees are using their technology while on-the-clock. My fellow bloggers share their thoughts on this very interesting case:
Dennis Westlind at World of Work: Supreme Court to Review Text Message Case; Primarily of Interest to Public Employers.
Michael Fox’s Jottings By An Employer’s Lawyer: Labor and Employment Comes (Slowly?) Into the Electronic World.
Washington DC Employment Law Update: Supreme Court Review of Quon May Provide Important Guidance for Private Employers.
Philip Miles’s Lawffice Space: Text Message Privacy Hits SCOTUS.
Workplace Privacy Counsel: Supreme Court Review of Quon May Provide Important Guidance for Private Employers.
Colorado Employment Law: Supreme Court to Review Employee Privacy in Text Messages.
Ross Runkel’s LawMemo: Text message privacy at the Supreme Court.
Jeffrey Hirsch at the Workplace Prof Blog: Supreme Court Grants Cert in Quon Privacy Case.
On to other news of the week.
Employee Terminations
How NOT to Call in Sick – via Mark Toth’s Manpower Employment Blawg.
It’s NOT Just a Fantasy: Company Fires Employees for Running Fantasy Football League, For Real – from Dan Schwartz’s Connecticut Employment Law.
Wage & Hour
Lawyers See Easy Money in Wage-and-Hour Litigation – at the HR Daily Advisor.
Just Because an Employee is Exempt Doesn't Mean They Can't Be Paid Extra – via Overtime Advisor.
US DOL Finds 4000 Nurses at SSM Health Center Owed One Million Dollars Over Missed Lunches – from Wage & Hour – Developments & Highlights.
House-Approved Omnibus Spending Bill Would Significantly Boost Funding for DOL, NLRB, EEOC – by Washington DC Employment Law Update.
Discrimination
Fight over passage of the ENDA (Employment Non-Discrimination Act) delayed until 2010 – via Sindy Warren at the Warren & Hays Blog.
Attendance at work is an essential function of the job in most instances – from Employment Law Matters.
EEOC Continues to Attack "No-Rehire" Policies – by New York Labor and Employment Law Report.
Social Media
Harassment
An Employer Cannot be an Ostrich in Response to Complaints – by Tom Crane’s San Antonio Employment Law Blog.
$1,260,000 settles harassment claims – via Ross Runkel’s LawMemo.
Weird Sexual Harassment Cases In the News – by Teresa Cheek at the Delaware Employment Law Blog.
Harassment Is All About the Threshold – from Kris Dunn, The HR Capitalist.
Why we should put filters on our work computers – via the Evil HR Lady.
Top 10…
…Worst phrases to use at the office – from CNN.com.
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.
MSNBC reports that multiple class actions have been filed against AT&T claiming that it misclassified as exempt all of its first-level managers and unlawfully deprived them of overtime pay. The lawsuits seek $1 BILLION (that’s nine zeros) in damages.
Rush Nigut’s Rush on Business has done an excellent job spotlighting the critical issues raised by these types of claims:
Naturally that kind of pie in the sky number might leave one to think, “It’s never going to happen to me, my business is much smaller and I won’t be a target.” But when you look at the fact that experts believe approximately 70 percent of businesses are out of compliance with wage and hour laws, you shouldn't be quick to shrug off the prospects of a process server knocking on your door. All it takes is one disgruntled employee … and you could find yourself in the middle of a wage and hour dispute.
Click on through to Rush’s post to read his six tips to avoid wage and hour lawsuits.
I’ve also written extensively on the dangers wage and hour compliance poses for employers:
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.