A chocolate cupcake by any other name…

The EEOC has settled a race and sex discrimination case against a local temporary agency, Area Temps. The EEOC alleged that the agency used code words to identify the race, color, and sex of candidates it placed with employers. For example, hockey player = white male, small hands = females, basketball player = African American men, and chocolate cupcake = young African American women. The EEOC alleged that Area Temps would attach note cards containing the coded phrases to job applications submitted to employers. The settlement will pay $650,000 to a nationwide class of 11,000 people.

The easy lesson from this case is that businesses should never use code words as a proxy to identify protected characteristics such as race and sex. There is also a deeper lesson to take away from this story. Claims against two of the employers who are alleged to have used the coded phrases to make job decisions remain pending in federal court. Employers are often jointly responsible with temporary agencies for acts of discrimination. In dealing with temporary agencies, businesses should be careful not to perpetuate discrimination fostered by the agency. Also, to the extent that you are able, businesses should negotiate indemnification clauses in staffing agreements with temporary agencies, so that if your business is sued for the discriminatory act of the agency, it will defend you (pay your attorneys’ fees) and hold you harmless (pay your portion of any settlement of or judgment on the claims).

Do you know? Content of FMLA medical certifications

So often we get bogged down in the minutia of an employment law issue or a specific case. I thought that today, we’d take a step back and focus on something really basic—the mechanics of FMLA medical certifications.

When an employee take an FMLA leave for his or her own serious health condition, or that of a family member, an employer may require that the employee obtain a medical certification from a health care provider to certify that the medical condition qualified under the FMLA. The certification may seek the following information:

1. The name, address, telephone number, and fax number of the health care provider and type of medical practice/specialization.

2. The approximate date on which the serious health condition began, and its probable duration.

3. A statement or description of medical facts regarding the patient’s health condition for which FMLA leave is requested. The medical facts must be sufficient to support the need for leave. Such medical facts may include information on symptoms, diagnosis, hospitalization, doctor visits, whether medication has been prescribed, any referrals for evaluation or treatment (physical therapy, for example), or any other regimen of continuing treatment.

4. If the employee is the patient, information to establish that the employee cannot perform the essential functions of the job, the nature of any other work restrictions, and the likely duration of such inability.

5. If the patient is a covered family member with a serious health condition, information to establish that the family member is in need of care, and an estimate of the frequency and duration of the leave required to care for the family member.

6. If an employee requests leave on an intermittent or reduced schedule basis for planned medical treatment of the employee’s or a covered family member’s serious health condition, information to establish the medical necessity for such intermittent or reduced schedule leave and an estimate of the dates and duration of such treatments and any periods of recovery

7. If an employee requests leave on an intermittent or reduced schedule basis for the employee’s serious health condition, including pregnancy, that may result in unforeseeable episodes of incapacity, information to establish the medical necessity for such intermittent or reduced schedule leave and an estimate of the frequency and duration of the episodes of incapacity

8. If an employee requests leave on an intermittent or reduced schedule basis to care for a covered family member with a serious health condition, a statement that such leave is medically necessary to care for the family member, which can include assisting in the family member’s recovery, and an estimate of the frequency and duration of the required leave.

The Department of Labor has published two forms for employers to use for a health care provider to certify the need for FMLA leave: WH-380-E (for an employee’s own serious health condition), and WH-380-F (for a family member’s serious health condition). While these forms are optional, the DOL approves their use, they are available for free, they cover all of the permitted information, and leave no room for over-reaching. In other words, if you’re not using these forms, you should be.

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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.

DOL provides guidance on break time for nursing moms

One of the lesser heralded provisions of the Patient Protection and Affordable Care Act (better known as the Health Care Reform Bill) is section 4207, which provides reasonable break time for nursing mothers. Unlike many provisions of the health care bill, which do not go into effect for several years, break times for nursing mothers went into effect as soon as President Obama signed the bill into law on March 23, 2010.

Last Friday, the Department of Labor’s Wage & Hour Division published Fact Sheet #73, which provides guidance to employers implementing this new break time requirement. Here’s the highlights:

• Employers must provide “reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth each time such employee has need to express the milk.” The frequency and duration of each break will likely vary from employee to employee, and employers must provide breaks as frequently as needed by the nursing mother.

• Employers must provide “a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.” A bathroom, even if private, is not allowed. The location must be functional as a space for expressing breast milk. If the space is not dedicated to the nursing mother’s use, it must be available when needed. A space temporarily created or converted into a space for expressing milk or made available when needed by the nursing mother is sufficient provided that the space is shielded from view, and free from any intrusion from co-workers and the public.

• This break time requirement only applies to non-exempt employees.

• Employers with less than 50 employees are not subject to this break time requirement if compliance would impose an undue hardship (defined as the difficulty or expense of compliance for a specific employer in comparison to the size, financial resources, nature, and structure of the employer’s business).

• Employers are not required to compensate nursing mothers for breaks taken for the purpose of expressing milk. However, where employers already provide compensated breaks, an employee who uses that break time to express milk must be compensated in the same way that other employees are compensated for break time.

Because Ohio does not have its own law that requires lactation breaks, Ohio employers should pay careful attention to this provision of the health care bill and the new requirements it imposes on all but the smallest of our state’s employers.

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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 #136

When I write I post about which I’m particularly proud, I’ll ask my wife for her opinion, which is what I did last night for my post from yesterday on assholes. Her comment—that all of my readers would think that I had an awful time at the concert, which couldn’t be further from the truth. The music was awesome, we had a great dinner beforehand, and it’s always a joy to spend some rare time with my wife without kids.

Now that I’ve clarified, here’s what I read this week:

Bullying

• When “sabotage” becomes illegal – from Michael Fox’s Jottings By An Employer’s Lawyer

• New Laws Target Workplace Bullying – from Adam Cohen at Time.com

• With Time and Parade, the workplace bullying legislative movement goes mainstream – from David Yamada’s Minding the Workplace

Wage & Hour

• Clarity In Labor Law? You MUST Be Kidding – from Hartford Business Journal Online

• Independent Contractor Safe Harbor Now a Minefield – from Michael Haberman’s HR Observations

• DOL to Conduct “FMLA survery”: Is More Regulatory Change on the Horizon? – from FMLA Insights

• When Plaintiff’s Lawyers Go Too Far – from Florida Employment Law Blog

• Proactive Analyses as Management Conundrum? – from Stephanie Thomas’s The Proactive Employer

• Children at Work: Employers May Face Stiff Fines for Employing Minors – from CPEhr

• Here Comes An Avalanche of FLSA Cases: Employers Be Aware, Be Proactive! – from Wage & Hour - Development & Highlights

Technology & Social Media

• Social Media Use in the Workplace Is on the Rise – from Forbes.com Velocity Blog

• Corporate Social Media Policies: The Good, the Mediocre, and the Ugly – from Fast Company

• It’s Like Alanis Morissette Was Using Her iPhone in her Government-Issued Cube – from Kris Dunn, The HR Capitalist

• Use Twitter, Get Fired – from Molly DiBianca at the Delaware Employment Law Blog

• Facebook hits 500 million user milestone – from Boy Genius Report

• When Everyone Has Their Own Smart Phone, What Does That Mean for the “Workplace”? – from Dan Schwartz’s Connecticut Employment Law Blog

Competition & Trade Secrets

• Compete, Solicit, Tell Secrets: Is It Legal? Is It Wise? – from Going Concern

• Motorola sues Huawei and several former employees for stealing wireless trade secrets – from Engadget Mobile

• Minimizing the Risk that a New Hire Will Lead to Trade Secret Litigation: Some Simple Preventive Steps – from Trade Secrets and Noncompete Blog

• FusionStorm and Employees Get Hit With $10 Million Trade Secret Theft Verdict – from Trade Secrets Blog

Discrimination

• After the investigation: what to do when the complainant is unhappy with the results – from Sindy Warren at the Warren & Hays Employment Law Blog

• House Rules: Sex, Cocaine, and Strip Clubs – from Philip Miles’s Lawffice Space

• A Modest Proposal for Maternity Leave – from You’re the Boss Blog

• Employers Beware: ADA Claims On The Rise Now And Into The Foreseeable Future – from Hunton Employment & Labor Law Perspectives™

Labor Relations

• ScienceBlogs.com Bloggers Go on Strike, Issue Demands to Management – from Work in Progress

• A Work Stoppage We Can All Support – from Jeffrey Hirsch at the Workplace Prof Blog

Miscellaneous

• Celebrating Junior Achievement – from The ChamberPost

• Credit Reports: The Value (and Risk) to HR Professionals – from Nick Fishman at TLNT

• Five Ways Pixar Makes Better Decisions – from Tom Davenport at the Harvard Business Review

• Dodd-Frank amends SOX; creates new whistleblower protections – from GT LE Blog

• How Would The Dalai Lama Tell Someone To Fuck-Off? – from Bob Sutton

• A classic offers lessons on firing employees – from Work Matters

• HR - Friend or Foe – from Workplace Fairness

• The Elements of Communication: Lawyerium – from KnowHR 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.

We are devolving into a society of assholes (and what it means to your workplace)

I went to a concert last night—Jack Johnson to be specific, which, by all accounts, was a low-key and mellow way to spend an evening. Or, at least the music was. But as a I sat and watched the people around me, I was surprised at how apologetically rude people have become. Smoking in clearly marked no-smoking areas, poaching a ticketed seat and scoffing when you have the nerve to ask for it back, and leaving vomit marking a breadcrumbed trail to the exit. Trust me, I’m no shrinking violet. I’m an employment lawyer, and I deal with people at their absolute worst (and often relish in it). But I look at my kids (4 and 2), who I am trying very hard to raise with manners, politeness, and respect for others, and I am starting to think that I have no chance once they get out into the world. And it makes me sad, angry, and scared.

I write this not because I think it will change anyone’s behavior. The fact is, people are who they are.

How they act at a Jack Johnson concert is likely how they will act at home, and how they will act in your workplace. Sure, they can put on a mask and try to hide it as best they can, but ultimately who they are will rise to the surface, and it will cause you a problem. Take, for example, the recent story about an altercation between two attorneys outside a courthouse (from the ABA Journal):

A 46-year-old Philadelphia area lawyer was briefly jailed and manacled last week after allegedly punching an opposing counsel who reportedly called him stupid, bald and an unprintable word.

The bottom line is that we need to adjust to the incivility in our society and make the best of it, because I don’t think it’s going to get any better. We can’t legislate niceness. Laws (like the anti-bullying movement) will not change behavior for the better, but will merely make it more difficult and more expensive for businesses to manage their workforces.

For more thoughts on assholes in the workplace, I highly recommend the thoughts of Bob Sutton, who has written extensively on the issue in his book, The No Asshole Rule.

I leave you with the (maybe) apropos music of Jack Johnson and his song, Good People:

Why employees sue

At the conclusion of a day-long plaintiff’s deposition in an FMLA and disability discrimination lawsuit, it was clear to me that my client had not only not violated any laws, but bent over backwards to do everything possible to accommodate the plaintiff. The company had treated this employee so well, I asked a question that I had never asked in another deposition—why are you suing?

It seems to me that they treated you fairly. They gave you an initial medical leave of more than 12 weeks, they provided you every accommodation you requested for your medical conditions, they provided you a second medical leave of more than 12 weeks, and you received several raises during your employment. Why are you suing this company?

The answer she gave floored me—not because it was damaging to my case, but because something that seemed so trifling caused the lawsuit. Her answer: “They started fighting my unemployment.”

Employees sue when they feel disrespected or when they perceive unfair treatment. It is not simply enough for an employer to treat employees well during their tenure. Employers should also strive to treat employees well in conjunction with their terminations and even thereafter. Sure, there are exceptions. I would never suggest that a serial harasser deserves a pass, or that the employee who stole from you should receive unemployment or a good job reference. If you don’t want to be sued, though, don’t make a terminated employee feel like a common criminal by having security escort them to the door (unless you legitimately and reasonably perceive a safety risk). It’s okay not to give a glowing recommendation to a marginal ex-employee, but resist the urge to trash him or her to a prospective employer. Don’t fight unemployment except in the most clear-cut cases. These little things could go a long way to an ex-employee reaching the decision to let bygones be bygones and not see you in court.

Do you know? What is the Paycheck Fairness Act are why should employers be concerned?

Today’s USA Today reports that the Obama Administration is going to make a renewed push for the passage of the Paycheck Fairness Act:

President Obama plans to press Congress today to pass pay-equity legislation that would make it easier for women to sue employers who pay them less than their male counterparts, the White House said Monday. “Women deserve equal pay,” White House senior adviser Valerie Jarrett said in an interview, citing government statistics that show women earn 77 cents for every dollar men earn. “It’s a very fundamental right.”

It would be hard to make an argument against this bill if all it did was guarantee equal pay for equal work. The Paycheck Fairness Act, however, goes much further by limiting the ability of businesses to defend against such claims, which should make businesses very concerned that this issue has reached the top of the President’s agenda.

The Paycheck Fairness Act (the full text of which is available here) makes 5 key changes to federal wage and hour laws:

1. Modified defense. Paycheck Fairness would impede the ability of employers to defend against sex discrimination wage payment claims. An employer can currently defend against an Equal Pay Act claim by showing that the pay difference between men and women was caused by “any factor other than sex.” Paycheck Fairness would alter this standard by requiring employers to show “a bona fide factor other than sex, such as education, training, or experience,” that is not sex-based, but is job-related to the position and consistent with business necessity. Moreover, even if an employer makes this showing, the employee could still prevail by showing that the employer refused to adopt an alternative employment practice that would serve the same business purpose without producing the same wage differential.
   
2. Enhanced damages. The current Equal Pay Act’s remedies include back pay and liquidated damages that are capped at the amount of the back pay. Paycheck Fairness would steepen the remedies for sex discrimination in wage payments by allowing for uncapped punitive and compensatory damages.
   
3. Non-retaliation. Paycheck Fairness would prohibit an employer from retaliating an employee who inquired about, discussed or disclosed the wages of the employee or another employee, unless discussing wages is part of an employee’s essential job function. While the National Labor Relations Act already covers this conduct, Paycheck Fairness’s enhanced remedies are much more extensive than those available under the NLRA.
   
4. Class actions. Paycheck Fairness would change sex discrimination wage payment class actions from “opt in” classes to “opt out” classes, making classes in these cases larger and easier for employees to join.
   
5. Reporting. Paycheck Fairness would require the EEOC to issue regulations on the collection of pay information from employers. It would also require the Office of Federal Contract Compliance Programs to use its “full range of investigatory tools” for investigation, compliance, and enforcement.
   

Employers should be very worried about the prospects for Paycheck Fairness. If it passes, employers will face increased risk and higher damages for sex discrimination wage claims. Perhaps the heavier burden, though, will be the significant compliance obligations from newly-empowered federal agencies.