What’s good for the goose isn’t always good for the gander: legal fees in employment lawsuits

One of the questions clients often ask me is whether they can pursue a plaintiff for defense costs after a successful dismissal. It only seems fair to the client that if they have to pay legal fees if the employee wins a discrimination lawsuit, the employee should be held to the same standard.

The answer is that an employer can pursue a plaintiff for legal fees, but it has to prove that the lawsuit was brought frivolously, which is a tall order. Ohio law defines frivolous conduct as follows:

• It obviously serves merely to harass or maliciously injure another party to the civil action or appeal or is for another improper purpose.

• It is not warranted under existing law, cannot be supported by a good faith argument for an extension, modification, or reversal of existing law, or cannot be supported by a good faith argument for the establishment of new law.

• The conduct consists of allegations or other factual contentions that have no evidentiary support or are not likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.

• The conduct consists of denials or factual contentions that are not warranted by the evidence or are not reasonably based on a lack of information or belief.

While it is not impossible, it is very difficult to prove that a employee acted frivolously in filing an employment lawsuit. Instead of spending time and money worrying about recouping legal fees from ex-employees, employers would better served chalking up litigation expenses as a cost of doing business, or simply avoiding litigation in the first place.

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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? FMLA leave for unmarried fathers

Do you need another reason to get married? The FMLA provides husbands greater rights than unwed fathers.

The FMLA distinguishes between fathers and husbands based on the type of FMLA-leave sought:

• Fathers are entitled to FMLA leave for the birth of their child and for paternity leave to be with the healthy newborn child (i.e., bonding time) during the 12-month period beginning on the date of birth.

• However, only husbands are eligible to take leave to care for his incapacitated pregnant spouse, to care for her during her prenatal care, or to care for her following the birth of a child if she has a serious health condition.

The FMLA only grants unmarried fathers paternity leave rights. It gives no benefit to the unmarried for any leave to care for the baby’s mother, either prenatally or postnatally.

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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.

Faith healing and the FMLA

The Smart HR Manager brought to my attention a recent case out of Massachusetts which held that an employee could not use FMLA leave to care for a spouse with a serious health condition who seeks to travel abroad for faith-based healing. The opinion, however, dodges the issue of whether faith-based healing is covered by the FMLA. Instead, it dismissed the FMLA claim because more than half of the trip was spent visiting family and friends and sightseeing, and the FMLA does not permit employees to vacation with a seriously ill spouse, even in a caregiving capacity.

The case, though, got me to thinking, is a faith-healer covered under the FMLA as a “health care provider?” The most logical place to look is the FMLA’s regulations. Section 825.125 defines a “health care provider” as—

1. A doctor of medicine or osteopathy;

2. Podiatrists, dentists, clinical psychologists, optometrists, and chiropractors;

3. Nurse practitioners, nurse-midwives, clinical social workers and physician assistants;

4. Christian Science Practitioners listed with the First Church of Christ, Scientist in Boston, Massachusetts; or

5. Any health care provider from whom an employer or the employer’s group health plan’s benefits manager will accept certification of the existence of a serious health condition to substantiate a claim for benefits.

Faith-healers do not fall under any of these categories. This conclusion only resolves whether the FMLA covers leave for faith-healing. It does not address whether other laws – such as Title VII’s religious discrimination protections – protect these employees, which is a topic for another day.

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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 #111

Conan O’Brien, Jay Leno, and NBC continue to dominate the headlines this week. I’ve previously shared my thoughts. Here’s what my fellow bloggers had to say this past week:

• What Can Employer’s Learn From Conan O’Brien’s Severance Agreement? – via Molly DiBianca at Delaware Employment Law.

• What Does the Conan-Leno-NBC Debacle Mean for Entertainment Law? – from Above the Law.

• Conan, Leno, Letterman, Money – at The Word on Employment Law with John Phillips.

• Boss Basics: Real Leaders Really Take Care of Their Staffs – from The Business of Management.

• Lessons from Conan's Non-Compete Negotiations – via Rob Radcliff’s Smooth Transitions.

• Thoughts on the Conan O'Brien Debacle – by the Workplace Diva.

The other big story of the week was the election of Scott Brown to fill the late Ted Kennedy’s Senate seat. It cost the Democrats their super-majority, and will have long-lasting effects on the President’s agenda, including his ambitious slate of labor and employment reforms. Here’s what other have to say about the swing of the political tide in Washington:

• The Brown Effect: Is EFCA Dead? – from Mark Toth’s Manpower Employment Blawg.

• How Will Brown's Win Impact Labor and Employment Law? – from the Washington DC Employment Law Update.

• Another Blow to EFCA Passage – via Workplace Horizons.

• Scott Brown win spun as “victory” by Big Labor – at LaborPains.org.

• The Importance Of Scott Brown: Everyone Agrees, But… – via Discriminations.

As for other news of the week that you might have missed…

• The True Cost of Employment Litigation – via Dan Schwartz’s Connecticut Employment Law.

• Comment on ‘Go Time’ For Discrimination Claims – by Stephanie Thomas.

• A Trap for the Unwary: "Professional" Duties and the Professional Exemption – from New York Labor and Employment Law Report by Joseph Dole.

• Employment-related class actions on the rise – by Sindy Warren at the Warren & Hays Employment Law Blog.

• Discrimination on the basis of “color” – at Maryland Employment Law Developments.

• Is This Retaliation or Discrimination? – at the UndercoverLawyer.

• Less Than 15 Employees? There's Always Immigration Discrimination – from Michael Fox’s Jottings By An Employer's Lawyer.

• Non-Disabled Applicant Can Go To Trial Based on Company's Pre-Employment Medical Inquiry, Says Eleventh Circuit – from Florida Employment Law.

• Catch Fishy FMLA Requests With the 3 R's – via Mindy Chapman’s Case in Point.

• Is the job so easy a caveman could do it? – at the Wage & Hour Defense Blog.

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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.

Warning – vulgar language ahead: 11th Circuit decides whether tasteless workplace behavior is actionable as sexual harassment

We recite the profane language that allegedly permeated this workplace exactly as it was spoken in order to present and properly examine the social context in which it arose. We do not explicate this vulgar language lightly, but only because its full consideration is essential to measure whether these words and this conduct could be read as having created “an environment that a reasonable person would find hostile or abusive.”

So starts the 11th Circuit’s opinion in Reeves v. C.H. Robinson Worldwide (1/20/10) [pdf], which decides the issue of whether vulgar language to which all employees (male and female) are equally exposed is actionable as sexual harassment.

The court made a clear distinction between general vulgarities and sex-specific epithets:

While the record is replete with evidence of general, indiscriminate vulgarity, there is also ample evidence of gender-specific, derogatory comments made about women on account of their sex….

Reeves … identified a substantial corpus of gender-derogatory language addressed specifically to women as a group in the workplace. Her coworkers used such language to refer to or to insult individual females with whom they spoke on the phone or who worked in a separate area of the branch. Although not speaking to Reeves specifically, Reeves said that her male co-workers referred to individuals in the workplace as “bitch,” “fucking bitch,” “fucking whore,” “crack whore,” and “cunt.”

Thus, the court differentiated between general, gender-nonspecific swear words, such as shit and fuck, (maybe improper, but not necessarily unlawful) as compared to gender-specific epithets such as bitch, whore, and, the granddaddy of them all, cunt (unlawful harassment).

[T]he context may illuminate whether the use of an extremely vulgar, genderneutral term such as “fucking” would contribute to a hostile work environment. “Fucking” can be used as an intensifying adjective before gender-specific epithets such as “bitch.” In that context, “fucking” is used to strengthen the attack on women, and is therefore relevant to the Title VII analysis. However, the obscene word does not itself afford a gender-specific meaning. Thus, when used in context without reference to gender, “fuck” and “fucking” fall more aptly under the rubric of general vulgarity that Title VII does not regulate….

[W]ords and conduct that are sufficiently gender-specific and either severe or pervasive may state a claim of a hostile work environment, even if the words are not directed specifically at the plaintiff…. It is enough to hear co-workers on a daily basis refer to female colleagues as “bitches,” “whores” and “cunts,” to understand that they view women negatively, and in a humiliating or degrading way. The harasser need not close the circle with reference to the plaintiff specifically: “and you are a ‘bitch,’ too.”

To conclude:

• General vulgarities are not actionable as harassment.
• Severe or pervasive gender-specific words or phrases are actionable as harassment even if the words are not specifically directed at one employee, but merely generally used in the workplace.
• Severe or pervasive conduct targeting a protected group also qualifies as actionable harassment.

The takeaway for employers – words are sometimes not just words, and businesses should respond to complaints about coarse or vulgar language as they would to any other complaint of harassment. An employer cannot just assume that words are harmless and bury its head in the sand.

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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.

How much is a non-compete worth?

According to one Ohio appellate court, $500,000. Marketing Associates v. Gottlieb (1/14/10) [pdf] upheld a half-million dollar jury verdict against an employee who breached a non-compete by resigning and targeting his former employer’s largest client after opening his own shop.

Non-competition cases tend to follow a pattern. An employee resigns, the ex-employer’s attorney sends out a cease-and-desist letter if competitive activities are threatened or suspected, a lawsuit is filed, and injunctive relief is sought trying to prevent the employee from competing, soliciting customers and employees, and using trade secrets and other confidential information.

Separate from the injunctive relief, though, non-competition agreements have a value. Employees who compete against a former employer in the face of a non-compete not only run of the risk of a court entering an injunction and putting them out of work, but also that any money earned in violation of the non-compete will be paid over to the former employer as damages. And, if the employer can show that an employee breached a duty of loyalty while still employed (misappropriating files or information or diverting customers, for example), that damage figure will only go up.

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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? Do you need a moonlighting policy?

Moonlighting is when an employee works a job other than their primary job. In today’s world, for example, many people find it necessary to work second or even third jobs just to get by. Assuming you want to permit employees work a second job, it is best to have a policy in place to address how it affects your business.

Such a policy should, at a minimum, address the following issues:

1. Interference with primary job. The main purpose of most moonlighting policies is to set out your expectation that employees will treat their work at your business as their primary job and will not allow other jobs to interfere with the performance of the primary job. You should make it clear that you expect the employee to put your job first.

2. Conflict of interest. Above all else, you need to protect your business. A conflict of interest policy can help ensure that your employees don’t work for a competitor while working for you. You should also consider the potential impact – positive and negative – of an employee working for a customer or vendor. The same should also cover confidential and other proprietary information.

3. What about leaves of absence? Employees should not be able to work a second job while on a leave of absence – medical, for example – from their primary job.

4. Approval of employment. Consider including a clause that requires approval of any outside employment. In implementing such a clause, however, be sure to do it fairly and equitably across the board, and avoid any appearance of preferential or discriminatory treatment.

You do not have to permit employees to hold other jobs. If you do, however, consider putting a policy in place to set expectations up-front and to give you the protection you need should an employee’s outside work interfere with your business.

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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.