Let your actions speak louder than your employees’ harassing words

Perhaps no single act can more quickly alter the conditions of employment and create an abusive working environment than the use of an unambiguously racial epithet such as “nigger” by a supervisor in the presence of his subordinates.

So said the 7th Circuit in Rodgers v. Western-Southern Life Ins. Co. Harassments works on a sliding scale. To be actionable, the offensive conduct creating the hostile work environment has to either be severe or pervasive. Isolated incidents are not pervasive, but can be severe, depending on the language used. A white employee dripping an “N-bomb” on a black employee can certainly satisfy severity.

How then, did the employer escape liability for workplace “N-bombs” in Hargrette v. RMI Titanium Co. (Trumbull App. 2/5/10) [pdf]? It took swift remedial action.

In 2002, Kearns allegedly called McKinnon a “nigger.” … [T]he inappropriate comment occurred during an argument between Kearns and McKinnon. The argument resulted in both Kearns and McKinnon being suspended for three days. In his deposition, McKinnon states that Kearns was not a supervisor. In addition, this remark appears to be an isolated instant. While McKinnon stated he did not get along with Kearns, it is only alleged that Kearns called McKinnon a “nigger” on this single occasion. Finally, we note that, upon being informed of the incident, management investigated the situation and reprimanded Kearns for his misconduct.

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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 have a severe weather policy?

I laugh at the east coast’s ongoing snow woes because (a) I grew up in Philadelphia, (b) my family is still there, and (c) last week notwithstanding, Philly’s winters don’t hold a candle to Cleveland’s. In fact, Forbes.com just crowned Cleveland as America’s worst winter weather city. (We’re also number 4 on the list of America’s most miserable cities – we’re nipping at your heels Chicago).

As I cleared my driveway this morning, I decided to share the following thoughts for drafting a severe weather policy for your workplace.

1. Communication. How will your business communicate to its employees whether it is open for business or closed because of the weather? Are there essential personnel that must report regardless of whether the facility closes?

2. Early closing. If a business decides to close early because of mid-day snowstorm, how will it account for the orderly shut-down of operations? Which employees will be able to leave early and which will have to remain to ensure that the facility is properly closed? Is there essential crew that must stay, or is there an equitable means to rotate who must stay and who can leave?

3. Wage and hour issues. To avoid jeopardizing exempt employees’ status, they should be be paid their full salary when a company closes because of weather. For non-exempt employees, however, it is entirely up to the company whether to pay them for a full day’s work, for part of the day, or for no hours at all. Will employees have to use vacation or other paid time off if they want to be paid for the day, or will the company consider it a freebee? If your company closes but an employee does not get word and reports to work, will the company pay that employee anything for reporting?

4. Attendance. Will the absence be counted against employees in a no-fault or other attendance policy, or defeat any perfect attendance bonuses?

5. Telecommuting. If your area has frequent bouts of severe weather, consider whether you want to allow employees to telecommute. Even if your business does not typically permit employees to work from home, exceptions for exceptional weather could potentially save you lost productivity.

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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? Why statistics are so important in reduction in force cases

For the past week, I’ve been examining the use of statistics in workforce reduction discrimination cases (6th Circuit downgrades importance of statistics in reduction-in-force cases and How small is too small? Litigating sample sizes in reduction in force cases). What’s been missing from this analysis, however, is an explanation of why raw numbers are so important in these cases, especially in age discrimination claims.

Many workforce reductions are accompanied by an offer of severance to the group of terminated employees. In fact, I don’t think any employer should pay severance without getting something in return from the employee, namely a release and waiver of liability.

The Older Workers Benefit Protection Act requires all releases and waivers of federal age discrimination claims provided as part of a severance program offered to a group of employees (such as in a reduction in force) to include a written disclosure of the job titles and ages of all eligible individuals selected for the program and all not selected for the the program. The EEOC, in its guidance on Understanding Waivers of Discrimination Claims in Employee Severance Agreements, provides the following example of what this disclosure should look like:

Job Title	Age	# Selected	# Not Selected
(1)	25	2	4
	28	1	7
	45	6	2
	63	1	0
(2)	24	3	5
	29	1	7

When the lone 63-year-old employee in Job Title 1 is going to decide whether to sign the waiver or pursue an age claim, the only fact he and his lawyer will have to go on is that within his job grouping, 7 out of the 9 oldest employees were RIFed, including the oldest employee. In other words, the raw statistics that the court discussed (and dismissed) in Schoonmaker will likely be the critical piece of information on which your employees will base their decision whether to sue or walk away. And, you have no choice but to turn this information over. Failing to do so will result in the invalidity of the age discrimination waiver.

Schoonmaker may question the relevance of raw statistics, but because the numbers must be disclosed to the terminated employees, they are nevertheless critical to any workforce reduction decision.

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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 small is too small? Litigating sample sizes in reduction in force cases

Last week’s post on the use of statistics in reduction in force cases garnered some interest from a fellow blogger, Stephanie Thomas. She argues on her blog that small sample statistics still have a place in workforce reduction litigation. After reading Stephanie’s take on this issue, we carried the conversation over to Twitter (Are you following me on Twitter @jonhyman? If not, shame on you).

My conclusion is that the Schoonmaker decision merely begs the question of how small of a sample size is too small to make pure statistics irrelevant in a RIF case. Stephanie and I agree that you will see more expert witness battles on the issue of whether a sample size is large enough to be statistically relevant.

If I’m defending a RIF, the first thing I’m doing is hiring a statistical expert to opine that the sample size is too small to be statistically significant. From there, I’ll argue that under Schoonmaker the case should be dismissed, unless the plaintiff can come forward with some “plus” evidence of discrimination.

Conversely, if a RIFed employee wants to rely on statistics alone, he or she will have to hire an expert to opine that the sample size is large enough to be statistically significant. If you have competing experts, you very well might have a factual issue over the sample size. Or, the judge could decide as a matter of law that the sample size is too small and toss out the statistics as irrelevant.

On my first read through Schoonmaker, I thought it gave concrete answers on a plaintiff’s prima facie requirements in a workforce reduction. After more deliberation, and a healthy Twitter debate with Stephanie Thomas, I’ve now concluded that Schoonmaker may create more questions than it answers.

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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 #113

The theme of this week’s review is déjà vu. In each category, I’ve linked back to at least one post I’ve written on a similar subject.

Social Media

• 5 Non-Negotiable Provisions for Your Social-Media Policy from Molly DiBianca at Delaware Employment Law. For my thoughts on drafting a social media policy, see Drafting a social networking policy: 7 considerations.

• It’s Not Just for Teenagers – More Businesses are Using Facebook to Connect from Jennifer Hays at the Warren & Hays Employment Law Blog.

• Privacy: Facebook Legal Department Hopes for Guidance from Court from Megan Erickson’s Social Networking Law Blog.

• Do You Really Want To Take on the 350 Million Pound Gorilla in the Room? from Dan Schwartz’s Connecticut Employment Law.

• Facebook and FINRA: FINRA's Social Media Guidance from Rob Radcliff’s Smooth Transitions.

• A Master’s Class in Hiring a Person With Credit Wrecked By Bad Health and Being Laid Off from Frank Roche’s KnowHR Blog.

Background Checks

• More on Resume Fraud and Fake Job References from Nick Fishman at employeescreenIQ Blog. For my thoughts on fake job references, see Do you know? Fake job references?

• Avoid A Few Common Mistakes When Conducting Background Checks from the New York Labor and Employment Law Report.

• Ring Ring or Ding Ding? Know the Legal Way to Answer Reference Calls from Mindy Chapman’s Case In Point.

Discrimination & Harassment

• Will 6th Circuit case result in cert grant, end employee-rights run at high court? from Colleen McGushins’ Work Matters. For my thoughts on the issue of associational retaliation see En banc panel of 6th Circuit reverses prior holding in Thompson v. North American Stainless and rejects associational retaliation claims.

• English Only Rules Spark Controversy from San Antonio Employment Law. For my thoughts on English-only rules, see EEOC settlement highlights red flags for English-only policies.

• When Is It Okay to Cuss Out Your Boss? from Dennis Westlind’s World of Work. For more on foul language in the workplace, see Warning – vulgar language ahead: 11th Circuit decides whether tasteless workplace behavior is actionable as sexual harassment.

• Movement on Paycheck Fairness Act? from The Word by John Phillips. For my thoughts on the Paycheck Fairness Act, see Something wicked this way comes – Congress’s 2010 employment law agenda.

• Pornography Investigation at SEC Ongoing from Debra Reilly’s Workplace Investigations Blog.

• Once Again---Avoiding the Appearance of Bias Backfires from HR Briefcase.

• Despite Assertions to Contrary, Employment Laws Do Exist from World of Work.

• A Year After Ledbetter - What's Next for Fair Pay for Women? from Workplace Fairness.

• Top 5 HR Mistakes That Small Businesses Make from Michael Haberman’s HR Observations.

• Employers Should Be Vigilant as the EEOC Anticipates Increased Charges, Funding, and Enforcement in 2010 from WorkplaceHorizons.

Courts and Litigation

• Employment Agreement Shortening Statute of Limitation Is Invalid from Labor Employment Law Blog. For the legality of these types of provisions in Ohio, see Some alternatives to arbitration of employment claims.

• Access to an Employment Case Jury Ordered from Workplace Prof Blog.

• A new look at 12(B)(6)? from Russ Bensing’s The Briefcase.

• Stripper Dances Off With $100K From Club in DUI Case from On Point.

• Stripper: getting tipsy was part of my job (update) from Overlawyered.

• What a Mess: The Tenure Appeal Meeting at Ohio University by Bob Sutton.

Labor Law

• SEIU Blog Accepts Chamber’s EFCA Polling Results; Misstates Arbitration Provision from The ChamberPost. For my earlier thoughts on public perception of the EFCA and the need for labor unions, see Employee Free Choice Act officially kicks off, but does anyone care?

• State of the Unions - EFCA-Lite and the Private Sector Decline from Philip Miles’s Lawffice Space.

• Senate Confirms Patricia Smith as Labor Solicitor from Washington D.C. Employment Law Update

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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.

6th Circuit downgrades importance of statistics in reduction-in-force cases

Yesterday, I discussed a 6th Circuit decision that provided guidance to employers on how not to RIF an employee on FMLA leave. Today, I’m going to examine another decision out of the 6th Circuit this week on the issue of RIFs, which clarifies what a laid-off employee has to prove to establish age discrimination following a reduction in force.

RIFs provide a built-in protection for employers in age discrimination cases, because the legitimate non-discrimination reason for the termination – the economic necessity for the workforce reduction – is established from the outset. Thus, employees challenging a RIF on account of age have a higher prima facie burden. When a termination arises as part of a work force reduction, the plaintiff must provide “additional direct, circumstantial, or statistical evidence tending to indicate that the employer singled out the plaintiff for discharge for impermissible reasons.”

In Schoonmaker v. Spartan Graphics Leasing (6th Cir. 2/3/10) [pdf], the plaintiff claimed that the fact that her employer retained younger employees in her position, and that her employer RIFed the two oldest employees, satisfied the “additional evidence” necessary to overcome the employer’s economic justification for the RIF. The 6th Circuit correctly rejected this assertion, and in doing so put a dagger through the heart of the use of bald statistics of small samples in RIF cases:

If the plaintiff’s case-in-chief is viewed as satisfying the requirements for a prima facie case of age discrimination, then every employer who terminates an employee between 40 and 70 years of age under any circumstances, will carry an automatic burden to justify the termination….

[S]tatistical evidence may satisfy the fourth element in a work force reduction case ... [but] such a small statistical sample is not probative of discrimination.

In other words, in RIFs with a small sample size, an employee will have to come up with evidence other than pure statistics to go forward with a discrimination claim – evidence that that RIFed employee was objectively more qualified than the younger retained employees.

Despite this case, employers act at their own peril by ignoring statistics. Before any RIF is finalized, businesses should be analyzing the numbers across all key demographics, in addition to comparing the relative qualities and qualifications of the departing versus the remaining. Performing this diligence may not prevent a lawsuit from being filed (especially if the raw numbers appear to look discriminatory), but it will give you the necessary ammunition to defend any subsequent discrimination lawsuits that are filed.

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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.

Reduction in Force vs. Leave of Absence: How not to handle the convergence

There is no rule that says that you cannot terminate an employee on FMLA leave in a reduction in force. Conventional wisdom (and the real risk of being sued), though, dictates that it must be done carefully and with every “i” dotted and “t” crossed. It is also best to keep comments about the employee’s leave of absence out of the calculus used to determine who stays and who goes. Take Cutcher v. Kmart (6th Cir. 2/2/10) (unpublished) [pdf] as an example.

Susan Cutcher worked at Kmart from 1984 until her termination as part of a workforce reduction at the end of 2005. From 2000 on, she directly reported to Barbara Borrell, who evaluated Cutcher’s performance on an annual basis. Each of Borrell’s evaluations of Borrell resulted in an overall rating of either “Exceptional” or “Exceeds Expectations,” including her final performance review, which occurred just a month before Kmart announced a nation-wide RIF and which included Cutcher. On that final performance review, Cutcher received highest marks for customer service, but lost points for teamwork.

That nation-wide RIF occurred while Cutcher was out of work on an approved FMLA leave. Cutcher’s store eliminated 6 full-time employees. Employees’ performance evaluations and scores were converted to a different scale and re-ranked for purposes of the RIF. On Cutcher’s RIF appraisal, the following comment appeared: “Poor customer and associate relations. LOA.” Kmart did not eliminate Cutcher’s position, but gave it to a coworker with a higher RIF appraisal ranking. Cutcher sued, claiming that her inclusion in the RIF violated the FMLA.

Kmart correctly pointed out that an employer need not restore an employee who would have lost her job or been laid off even if she had not taken FMLA leave. Thus, it argued for dismissal of the FMLA claims on the grounds that it would have fired Cutcher even if she had not taken FMLA leave. The 6th Circuit disagreed:

Given Cutcher’s prior annual appraisal scores, the minimal amount of time that passed between her most recent annual appraisal and the RIF appraisal, Kmart’s admission that Cutcher’s performance did not change during that short period of time, the inclusion of the “LOA” notation on the Associate Performance Recap Form, and the lack of any documented evidence demonstrating a prior concern with her job performance, a jury could infer that her leave status impacted her RIF appraisal ratings, thus leading to her termination.

The takeaway from this case is that employers planning a reduction in force must be careful in the language used to discuss employees. If you don’t want a judge or jury to infer that you took an employee’s leave of absence into consideration, don’t write “LOA” anywhere near the employee’s name on any document concerning the RIF. It may sound trite, but in litigation, everything you wrote or said can and will be used against you.

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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.