WIRTW #123

It’s impossible to cover every labor & employment story that hits every week. The most interesting news of the week that I did not yet have a chance to cover is the revelation that Department of Labor enforcement data is now available online. Right now, your search capabilities are limited to division and state. Thanks to Dan Schwartz’s Connecticut Employment Law Blog and the Workplace Prof Blog for reporting on this issue.

On to the rest of the week’s stories:

Wage & Hour

• The IRS and HR: Who is an Employee? – from Michael Haberman’s HR Observations

• PDA Use Creates Wage and Hour Issues – from Jennifer Hays at the Warren & Hays Employment Law Blog

Discrimination & Harassment

• Arroyo v. Accenture, LLP: The Potential Pitfalls of Criminal Background Checks – from Natalie Klyashtorny’s A Case of the Mondays

• Workplace Rules And Job Requirements Justify Employers’ Termination Decision In Face Of ADA Claims Based On Alcoholism – from Hunton Employment & Labor Law Perspectives™

• Credit Reports and the Hiring Process: The Value (and Risk) to HR Professionals – from Nick Fishman at the employeescreenIQ Blog

• More Men File Sex Harassment Charges: Man Gene Waning? – from The Word on Employment Law with John Phillips

• The role mistaken beliefs play in retaliation and hostile environment claims – from Work Matters

• Maternity Leave Policy – from Colorado Employment Law Blog

• Email Harassment - Jesse James Edition – from Philip Miles’s Lawffice Space

• Harassment Reporting: Who’s Your Weakest Link? – from Mindy Chapman’s Case In Point

Labor Relations

• The Supporter Side Politics of EFCA – from Michael Fox’s Jottings By An Employer’s Lawyer

• Another Attempt at EFCA Before Year’s End? – from LaborUnionReport.com

• Breaking News: Reports Say SEIU’s Andy Stern To Resign – from Labor Relations Today

Competition & Trade Secrets

• Customer Lists as Trade Secrets? Not A Per Se Rule – from Trade Secrets Blog

• How to enforce a non-compete without a non-compete – from Rob Radcliff’s Smooth Transitions

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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.

Pets in the workplace: assessing the risks and drafting a policy

Sarah’s Needleman’s Small-Business Boss column in today’s Wall Street Journal discusses pet-friendly workplaces. I spoke with Sarah earlier this week. Here’s what I had to say:

“You want to set expectations,” says Jon Hyman, a partner in the labor and employment group at Kohrman Jackson & Krantz PLL, a law firm in Cleveland. For example, he suggests that owners determine if employees can leave a pet at work while they go off-campus to a meeting and where the animal should stay during their absence.

Business owners should also consider how they would help employees who are allergic to animals avoid flare-ups if they allow pets in their workplaces. Mr. Hyman says that while rare, workers have successfully sued business owners for violating the American Disabilities Act by not taking such steps.

“If you have an employee that just cannot be in the same facility, you would have to accommodate that person,” he says. “You have to run your business first, and the core of your business is still your people.”

Are you thinking about opening up your business to employees’ pets? You will find very few resources on the Internet to help. And, you will need a written policy before you allow pets in. Here’s some considerations.

1. People come first. Despite your desire to allow pets—whether as a perk, a recruitment tool, or both—your employees still make up the core of your enterprise. If you have to choose between an employee or a pet, you should always choose the employee.

2. One of the biggest legal risk is the Americans with Disabilities Act. If an employee is allergic to animals, pet owners must understand that they may have to leave their animals at home as a reasonable accommodation. Other possible accommodations include creating sufficient separation between the allergic employee and the pet, segregating the pet to a specific part of the facility, or improving ventilation. Ignoring the pleas of an allergic employee, though, will open you up to potential ADA liability.

3. Animals must of “office broken.” Animals with any bite history should not be permitted. Moreover, any aggressive behavior, such as growling, barking, chasing, or biting, should result in the animal’s expulsion on the first complaint. Animals should also be house broken, friendly towards people and other animals, and not protective of their owners or their owners’ spaces. Finally, you should define when animals must be leashed or caged, and what is expected of employees when they have to leave the workplace during the work day.

4. Respect for property. Designate a specific area outside for animals to go to the bathroom (preferably away from the entrances), and make sure pet owners understand that it is their responsibility to clean up messes outside and accidents inside.

5. Licenses and vaccinations. Before being permitted to bring animals to work, owners should verify that vaccinations are up to date, and that the animal licensed and free of parasites and insects. 

6. Liability. Employees should verify, in writing, that they have sufficient home owners’ or renters’ insurance to cover any damage to person or property caused by the animal. You should also consider indemnification in case your business gets sued, and a paycheck deduction authorization for any damage caused.

If you are considering having a pet-friendly workplace, I recommend contacting qualified employment counsel to walk you through the risks and assist in drafting an appropriate policy.

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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.

Reasonable accommodations for an employee’s inability to commute to work

Consider the following story. An employee with a history of eye problems (glaucoma and partial blindness) presents a doctor’s note recommending that she not drive at night. That note presents a scheduling problem, since she works third shift, public transportation is not available, and she has no other way to consistently get to work. Do you have a responsibility to accommodate this employee by transferring her to a day shift so that she can commute? Here’s the answer, at least according to the 3rd Circuit in Colwell v. Rite Aid Corp. (4/8/10) [pdf]:

Rite Aid argues that it had no duty to even consider changing Colwell’s shift because Colwell’s difficulties amounted to a commuting problem unrelated to the workplace, and the ADA does not obligate employers to address such difficulties…. Instead, we hold as a matter of law that changing Colwell’s working schedule to day shifts in order to alleviate her disability-related difficulties in getting to work is a type of accommodation that the ADA contemplates … [and] that under certain circumstances the ADA can obligate an employer to accommodate an employee’s disability-related difficulties in getting to work, if reasonable…. In sum, we hold that the ADA contemplates that employers may need to make reasonable shift changes in order to accommodate a disabled employee’s disability-related difficulties in getting to work.

This decision potentially opens a can of worms for employers. How far do you have to go to accommodate an employee’s disability-related commuting difficulties? Under this case, a shift-change is one possible accommodation. What about arranging for rides by co-workers? Paying for taxis or other transportation? Exceptions to attendance policies and rules? What is reasonable will change from employee to employee and workplace to workplace. What never changes, however, is your responsibility to explore these options through the interactive process required by the ADA.

Employees with medical conditions that impede their ability to do their jobs raise a huge red flag. Before summarily denying a reasonable accommodation, you should be consulting with counsel to make sure that you are not stepping into a lawsuit.

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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? Using criminal histories and conviction records in hiring

A rejected applicant has filed a class action lawsuit against management consulting firm Accenture, claiming that it discriminates against minorities through a policy of rejecting qualified individuals with criminal histories. Judy Greenwald at Business Insurance provides the details:

According to Roberto J. Arroyo vs. Accenture L.L.P., filed … in federal district court in New York, Mr. Arroyo spent two and one-half years in prison in a 10-year-old conviction for vehicular homicide in a car accident in which he had been driving while intoxicated.

Mr. Arroyo worked for Chicago-based Accenture as a contract employee in its Murray Hill, N.J., office from November 2005 to April 2007. In April 2007, the firm offered Mr. Arroyo permanent employment subject only to the results of a background check, but withdrew the job offer and terminated his employment as a contract worker based on his conviction, according to the lawsuit.

This lawsuit illustrates an important issue—that the EEOC targets blanket policies that bar the employment of any applicant because of an arrest or conviction. According to a December 14, 2004, informal EEOC opinion letter:

Although Title VII does not, on its face, prohibit discrimination on the basis of conviction records, the EEOC and courts have concluded that a policy or practice of excluding individuals from employment on the basis of their conviction records may have an adverse impact on certain minority groups in light of statistics showing that they are convicted at a rate disproportionate to their representation in the population.

Just because a company cannot per se disqualify individuals because of criminal histories does not mean that they can never be used a factor. What are the rules for the proper use of arrest and conviction records as employment criteria?

1. If an employer collects arrest or conviction information, it must do so consistently. It is unlawful under Title VII to obtain criminal records in an inconsistent manner—based on the race, color, religion, national origin, or sex of the applicant. For example, it would be facially unlawful for an employer only to require background investigations of applicants who were born in the Middle East or are Muslims.

2. An Employers should assure applicants and employees that honestly providing criminal histories will not result in an automatic disqualification from consideration.

3. If a policy concerning arrest or conviction records disproportionately affects minorities, an employer may nevertheless maintain the policy if it can prove a business need. According to the EEOC, an employer must consider whether a particular applicant should be excluded from a particular job based on:

• The nature and gravity of the offense;
• The time since the conviction and/or completion of the sentence; and
• The nature of the job held or sought.

In other words, employers must undertake a job-by-job, employee-by-employee, check-by-check analysis of the relationship between the conviction and the ability to perform the job.

If you have a question about the use of criminal backgrounds in hiring and other employment decisions, you should contact employment counsel to guide you through this thorny issue.

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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.

This is not a late April Fools’ joke: Employees strike over right to drink beer at work

Oh to have the labor problems in this country that they have elsewhere around the world. For example, take Denmark beer company Carlsberg. More than a thousand brewery workers walked off the job after the company restricted their ability to drink beer during the work day. The New York Times has the details. Until recently warehouse workers were able to drink as much beer as they wanted to during the day – provided they did not get drunk. Under the new policy, however, beer consumption is limited to lunch breaks only. Here’s the best part. Although truck drivers are not covered by the new policy, they joined the strike in sympathy. The truck drivers already have their own limits – 3 beers per work day outside of lunch.

So as you bemoan a liberalized NLRB and Department of Labor, an amended ADA that makes almost anyone with a medical condition “disabled,” mandatory lactation breaks, and a Congress that may look to expand employment protections before the November elections, at least be thankful that you don’t have employees walking off the job over the right to drink beer.

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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 #122

May 4 is primary election day in Ohio. In Cuyahoga County, there are 5 contested Democratic judicial primaries – 2 in common pleas court, and 1 each in the court of appeals, domestic relations court, and juvenile court. Judge4Yourself.com is an online repository of 4 local bar associations’ independent and impartial ratings of the candidates. Do you need a reason why it is important to educate yourself? Of the 21 candidates running in contested elections, the Cleveland Metropolitan Bar Association rates only 6 as “Excellent,” while another third are “Not Recommended.” If you plan to vote in the primary, please click over to Judge4Yourself.com’s ratings. You will appreciate the time spent reading if you or someone you know if ever a litigant in Cuyahoga County.

Here’s the rest of what I read this week.

Wage & Hour

• Will “We Can Help” Really Help, or Hurt? from Darcy Dees at Compensation Cafe

• Five Steps to Diminish Wage & Hour Problems from Michael Haberman’s HR Observations

• Federal Court Rules Plaintiffs Seeking Class Certification May Not Rely on Employers’ Job Descriptions and Uniform Exemption Policies to Satisfy Predominance of Issues from Wage & Hour Counsel

Discrimination

• Simple strategies for avoiding employment claims from Jennifer Hays at Warren & Hays Employment Law Blog

• EEOC Warns Employment Credit Reports Could Pose Bias Risk from Nick Fishman at employeescreenIQ Blog

• Desperate Housewife Sues Abusive Boss For Hostile Work Environment from UndercoverLawyer

• Are Tea & Coffee Parties Happening in Your Office? from Brian Molinari at Prima Facie Law Blog

• Is the EEOC Getting Interested in Disparate Impact Claims? from Texas Employment Law Update

• San Francisco Chronicle Op-Ed: Data Espionage A Major Issue Facing U.S. from Trade Secrets Blog

• Downsizing & Data Loss - The Alarming Connection from Hunton Employment & Labor Law Perspectives™

• Credit, Education and EEOC — Tip of the Week from The Word on Employment Law with John Phillips

• Medical intern unable to perform the essential functions of a first-year resident could not support ADA claim from Employment Law Matters

Social Media

• Repository of Model Jury Instructions re: Social Media from Molly DiBianca’s Going Paperless

• You Really Need A Social Media Policy For Your Workplace! from Minnesota Labor & Employment Law Blog

• A caution about recruiting through social media from HR Cafe

• Employers Incur Risk if they Pursue Action Against an Employee for Off-Duty Web Comments from Tom Crane’s San Antonio Employment Law Blog

Litigation

• Finesse the Impasse by Changing the Deal: Advice from a Former Disney GC from Victoria Pynchon’s Settle It Now Negotiation Blog

• How to Keep People Like Me Out of Your Workplace, Part 1 and Part 2 from HR Daily Advisor

Labor Law

• Union Salts vs. Union Moles: IBEW Updates Members on ‘Union Salting Possibilities’ from LaborUnionReport.com

• With a new NLRB, wholesale reversals? from PointOfLaw Forum

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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.

Department of Labor targets enforcement of rules against unpaid internships

More than a year ago, I cautioned employers about the legal risks of unpaid internships. At the time, I wrote that the Department of Labor uses a six-factor test to determine whether an intern is an employee in disguise, who must be paid. All six of the following factors must be met before an employer can legally refuse pay to an intern:

1. Is the training similar to what would be given in a vocational school or academic educational instruction?
   
2. Is the training for the benefit of the trainees or students?
   
3. Do the trainees or students work under their close observation of regular employees without displacing them?
   
4. Does the employer derive no immediate advantage from the activities of the trainees or students, and on occasion are the employer’s operations actually impeded?
   
5. Are the trainees or students not necessarily entitled to a job at the conclusion of the training period?
   
6. Do the employer and the trainees or students understand that the trainees or students are not entitled to wages for the time spent in training?
   

Last week, Steven Greenhouse wrote in the New York Times that state and federal agencies are beginning to use these factors to crack down on for-profit businesses that use the services of unpaid interns:

The Labor Department says it is cracking down on firms that fail to pay interns properly and expanding efforts to educate companies, colleges and students on the law regarding internships. 

“If you’re a for-profit employer or you want to pursue an internship with a for-profit employer, there aren’t going to be many circumstances where you can have an internship and not be paid and still be in compliance with the law,” said Nancy J. Leppink, the acting director of the department’s wage and hour division.

Employers that use unpaid interns should pay careful attention to this issue. Better to scrutinize your interns under these six factors before the Department of Labor swoops in and does it for you. Even better to formalize the relationship in a written Internship Agreement that formally spells out how each of these six questions are answered in your favor.

I also recommend you have a look at what others have said on this important wage and hour compliance issue: Overlawyered, ABA Journal Daily News, Lawffice Space, The Word on Employment Law with John Phillips, Manpower Employment Blawg, The HR Capitalist, Abovethelaw.com, Warren & Hays Employment Law Blog, Workplace Prof Blog, Minding the Workplace, and The Business of Management.