Do you know? What to do when you get sued

When you are sued in an employment case, the absolutely first thing you should do is call your lawyer. There are steps that must be taken as soon as you receive notice of the complaint, the failure of which could put your entire defense at risk.

1. An answer or other response must be timely filed. You could waive the right to file certain counterclaims and raise certain jurisdictional and other defenses by missing this critical deadline.

2. If you want to remove a case from state court to federal court, you only have 30 days to act. This is a hard and fast deadline, with no extensions possible. Counsel needs to be involved early to analyze whether the case is removable and to prepare the necessary paperwork.

3. A litigation hold should be put in place to preserve emails, other electronic records, and paper documents that could bear on the litigation. Key documents should be gathered and secured. Your attorney can help make sure that documents aren’t deleted or destroyed, a flub that could submarine your entire case.

4. Witnesses should be identified, and told that they should not communicate with anyone other that counsel about the case. If any employee is at risk for leaving your organization, potential testimony should be memorialized in an affidavit while the employee is still on favorable terms and under your control.

5. If you have EPLI coverage, you should put your carrier on notice so that coverage is not jeopardized and any defense costs are properly credited against your deductible.

6. Depending on the size and notoriety of the case, you may want to get out of the blocks early with some public relations. That message has to be crafted and managed by counsel so that it does not hurt a successful defense.

Tripping on any one of these important early steps can have serious consequences on your overall defense. Resist the D.I.Y. urge and lawyer-up as soon as you find out you’ve been sued.

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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.

EEOC announces curious partnership as it expands community outreach

The EEOC has announced that it has partnered with Beachwood’s Maltz Museum of Jewish Heritage to help employees file discrimination complaints. The agency will set up a temporary charge intake station at the museum on the last Thursday of each month. According to EEOC Cleveland Field Office Director Dan Cabot, “It’s a good partnership for us and for the community.”

To me, it’s a weird partnership. I understand the theming – the EEOC fights intolerance in the workplace and the Maltz Museum advocates for tolerance among religions and ethnicities. But, anyone who knows Cleveland geography will understand that no one in Beachwood and its surrounding communities needs help getting to the EEOC’s main office downtown. While this staged synergy sounds like a publicity stunt, it is one that employers should pay close attention to. The EEOC is clearly empowered, and employers who ignore their EEO responsibilities in today’s political climate do so at their own risk.

[Hat tip: Warren & Hays 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.

WIRTW #112

Here’s what you missed this week if you’re only reading my blog.

Labor

• Breakfast with NLRB Regional Director - (Part 3) - What Issues Should Employers Be On the Lookout For? – from Daniel Schwartz’s Connecticut Employment law

• Installing webcams an unfair labor practice? – from the LawMemo Employment Law Blog

• WSJ: Labor Leaders Assess EFCA's Prospects After Brown Election in MA – at the EFCA Report

• DOL Argues State Wage and Hour Class Actions are Compatible with the FLSA – from the Washington D.C. Employment Law Update

Sex Discrimination & Harassment

• Pregnancy discrimination in the workplace still a very live issue – from Donna Seale’s Human Rights in the Workplace

• Adverse employment action based on gender-related non-conforming behavior and appearance is impermissible – from Employment Law Matters

• Of slacks and sex discrimination – from Colleen McGushin’s Work Matters

• Do employers have a heightened duty to protect teen workers from harassment? – by Sindy Warren at the Warren & Hays Employment Law Blog by Sindy

• Judging Credibility of Witnesses in Harassment Investigation – via Debra Reilly’s Workplace Investigations Blog

Non-Competition Agreements

• Court Orders Barring Enforcement of a Non-competition Agreement - Reverse Injunctive Relief – via the My Employment Lawyer Wiki

• Jay & Conan - Best Legal Analysis Roundup – via Teri Rasmussen’s Ohio Practical Business Law

Social Networking

• FINRA Issues Guidance on Blogs and Social Networking Web Sites – from the Social Networking Law Blog

• Q&A On Using Social Networks For Background Screening – from fyiscreening.com

Miscellaneous

• State of the Union — Employment Law – from The Word by John Phillips

• “Zubulake Revisited: Six Years Later” Judge Shira Scheindlin Issues her Latest e-Discovery Opinion – from Electronic Discovery Law

• Sorry Fido, You Won't Qualify Your Owner for FMLA Leave – at the Prima Facie Law Blog

• The Aftermath of a Supreme Court Decision: Another MDV – from Michael Fox’s Jottings By An Employer's Lawyer

• Importance of Litigation Avoidance and Proactive Practices – by Stephanie R. Thomas, Ph.D.

• Shabby Treatment at Termination Begs for a Lawsuit – from HR Daily Advisor

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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.

Don’t forget about the retaliation

According to a story on NJ.com, a jury has ordered an adult novelty company to pay $500,000 to a fired saleswoman. She had sued for harassment and retaliation following her termination, claiming that she was fired after complaining about harassment by a co-worker. According to her attorney, “The president of the company yelled and screamed at her and disciplined her for the first time in the four years she’d worked there. He accused her of saying bad things about the company.”

We can debate whether someone who chooses sell adult products can be sexually harassed. What should not be open to debate, though, is that a company cannot berate, discipline, or terminate an employee following a harassment or discrimination complaint. Allegations of retaliation often turn a defensible EEO lawsuit into a huge liability risk. Unfortunately, this lesson is one that many companies do not learn until it’s too late.

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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.

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.