Top 10 Labor & Employment Law Stories of 2009: Numbers 2 and 1

2. The Economy. This past year brought us the worst recession this country has seen in nearly 80 years. It should not surprise anyone that as the economy sinks, the number of lawsuits brought by employees goes up. Workers considered the ethics of layoffs, while businesses thought up creative alternatives (furloughs and reduced work schedules) to reducing headcounts.

1. Social Media. 2009 was the year that social media exploded onto our cultural consciousness. Facebook has enough members to be the 4th largest country in the world, and Twitter (follow me @jonhyman) synthesized thoughts down to 140 characters. If you don’t think you’re employees are Friending each other or tweeting about your business, you are either naive or have ludites for employees. For more information about the impact of social media on your business and your employees, check out the following from this year:

• Do you know? Facebook and Twitter and blogs, oh my! What is social networking and why should you care?
• Drafting a social networking policy: 7 considerations
• Is LinkedIn a risk for employers?
• Employees’ social networking continues to confound employers
• Companies are banning social networking. Should you?
• Textual harassment
• Googling job applicants

There you have it – the top 10 labor and employment stories of the past year. Everyone have a safe and happy new year. I’ll be back on January 4 with a peak at what I think will be the 5 biggest stories to follow in 2010.

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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.

Top 10 Labor & Employment Law Stories of 2009: Numbers 4 and 3

4. The Swine Flu. Apart from the economy, no story dominated the headlines more in 2009 than H1N1. Because employees get sick, and need to be away from work when they are, H1N1 greatly impacted our workplaces:

• Swine flu: panic versus preparedness
• EEOC chimes in on swine flu with guides on how to prepare and remain Title VII/ADA compliant
• Can employers require flu shots for their employees?
• Do you know? Handling employees with suspected swine flu
• Do you know? H1N1 and employees’ leave rights

3. The Obama Administration’s DOL & EEOC. True to his word, President Obama has prioritized the plight of the working-class. One need only scan the EEOC’s press releases to see that it has significantly ramped up its prosecution of EEO violations. Meanwhile, the Justice Department announced that it is hiring an additional 50 attorneys to increase its enforcement of civil rights violations. The Department of Labor has hired 250 new investigators to step up enforcement of its Wage & Hour Division, specifically to target industries that employ vulnerable workers, such as agriculture, restaurants, janitorial, construction, and car washes.

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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.

Top 10 Labor & Employment Law Stories of 2009: Numbers 6 and 5

6. The U.S. Supreme Court’s Pro-Employee decisions. 2009 brought us two important pro-employee Supreme Court decisions. In Crawford v. Metropolitan Gov’t of Nashville, the Court held that Title VII’s anti-retaliation provision covers employees who answer questions during employers’ internal investigations. In Ricci v. DeStefano, the court found that disparate treatment of non-minorities trumps a disparate impact on minorities.

5. The Ledbetter Fair Pay Act. A mere 9 days after his inauguration, President Obama made the Ledbetter Fair Pay Act the first piece of legislation he signed into law. The Ledbetter Act reversed the Supreme Court’s eponymous decision, which had held that in Title VII pay discrimination cases the statute of limitations begins to run when the pay-setting decision is made. This law provides that a new and separate violation occurs each time a person receives a paycheck resulting from “a discriminatory compensation decision.” Thus, each paycheck that reflects an alleged discriminatory pay decision will start a new and distinct limitations period. Unfortunately for employers, courts have been applying this law broadly by extending statutes of limitations for all sorts of employment decisions – promotions and demotions, for example.

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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.

Top 10 Labor & Employment Law Stories of 2009: Numbers 8 and 7

8. Associational Retaliation. In Thompson v. North Am. Stainless, the 6th Circuit reversed itself and held that retaliation is only actionable in a suit by a primary actor who engaged in protected activity, and not by a passive bystander. This decision, which rejected a retaliation claim by the fiancée of an employee who had engaged in protected activity, has been appealed to the U.S. Supreme Court. The Supremes have asked for the view of the federal government before it decides whether to hear this case. Expect more on this issue in 2010.

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.

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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.

Top 10 Labor & Employment Law Stories of 2009: Numbers 10 and 9

Today, I continue a tradition that I started last year – using the week between Christmas and New Year’s to count down the top 10 Labor & Employment Law stories of the past year. We start today, with numbers 10 and 9. We’ll wrap up on Dec. 31 with the top two, and fill in the rest in between.

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.

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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.

Expansion and extension of COBRA subsidy

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:

1. 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.

2. 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.

3. 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.

4. 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.

5. 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.

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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? 10 tips for drafting a workplace electronic communications policy

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.

1. 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?

2. Account for the handling of your business’s trade secrets, confidential, and proprietary information.

3. Remind employees of their non-harassment obligations. Offensive, demeaning, or disruptive messages should always be prohibited, as should offensive racist, discriminatory, or sexual content.

4. Advise employees that what is transmitted over the company’s system belongs to the company and employee do not have any expectation of privacy.

5. Whatever degree of monitoring you are going to undertake, let employees know and obtain their consent.

6. 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.

7. Are employees allowed to remove electronic data from the workplace?

8. Provide for virus protection.

9. Don’t forget social media.

10. As with all employment policies, account for discipline for violations.

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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.