EEOC settlement provides really good practice points for combating harassment

Last week, the EEOC announced the settlement of the sexual harassment claims of 21 female janitorial workers against their employer, ABM Industries. The allegations were pretty horrific:

The EEOC asserted that the 21 class members were victims of varying degrees of unwelcome touching, explicit sexual comments and requests for sex by 14 male co-workers and supervisors, one of whom was a registered sex offender. Some of the harassers allegedly often exposed themselves, groped female employees’ private parts from behind, and even raped at least one of the victims, the EEOC said.

Worse yet, the lawsuit “charged that ABM failed to respond to the employees’ repeated complaints of harassment.” According to the EEOC, “Employers must implement strict policies and procedures to safeguard against such harassment, and take employee complaints seriously so that they not rise to the level of severity we saw in this case.”

The employer agreed to pay the class $5.8M, in addition to changes in how it handles workplace harassment. The agreed-to policy changes offer all employers some good lessons in how to proactively handle harassment:

• Designate an outside equal employment opportunity monitor to ensure the effectiveness of investigations, complaint policies and procedures, and assist in anti-harassment training to employees.
• Ensure that investigators of harassment complaints are trained thoroughly to investigate internal complaints of discrimination, harassment and retaliation 
• Establish a toll-free telephone hotline to receive complaints of harassment and retaliation.
• Provide anti-harassment training to employees in both English and Spanish to include a video message from the chief executive officer emphasizing zero tolerance for harassment and retaliation. 
• Conduct internal compliance audits at worksites.

Depending on the size of your organization, these specifics may not make sense. All businesses, though, should take the general lesson to heart. An anti-harassment policy is not worth the paper it’s printed on unless the company has a culture that not only abhors harassment, but takes all complaints seriously. Taking complaints seriously includes ensuring that all employees (no matter their native language or level of education) understand the harassment policy, that employees have more than one avenue to make complaints, that investigators are properly trained, and that the company regularly reviews its policies and procedures for compliance and effectiveness. No anti-harassment program is perfect, but designing one around these guidelines will greatly help in keeping you away from multi-million dollar lawsuits.

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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 medical certifications: if you don't ask, then you can't deny

In Branham v. Gannett Satellite Information (9/2/10) [pdf], the Sixth Circuit faced the issue of whether a negative medical certification (that is, one that says an employee is not limited in performing the essential functions of the job) bars FMLA leave if the employee presents an opposite certification during the same certification period. Under the FMLA's regulations, an employer must give an employee 15 days to prevent a medical certification for an unforeseeable leave. During that 15 day period, Deborah Branham presented Gannett an initial form from her doctor which stated that she could perform the essential functions of her job, and a second form which stated that she could not. While the latter would have qualified her for FMLA leave, Gannett took the position that the initial negative certification disposed of the issue for the entire leave, and it could ignore the second certification. The Sixth Circuit skirted this interesting issue, but in the process made an important point about employers' obligations in following the rules and asking for medical certifications.

The rules on medical certifications under the FMLA are fairly straight-forward. After an employee asks for FMLA leave, an employer may require that the employee support the request with a certification issued by the employee's health care provider. This request by the employer must be in writing and must detail the employee’s specific obligation to provide the certification and the consequences of failing to do so (such as the denial of leave). The request may be oral only if (1) the employee handbook or other written FMLA policy clearly provided that medical certification would be required, and (2) the employee sought FMLA leave some time in the previous six months and received written notice of the medical-certification requirement at that time. If an employer uses the FMLA forms drafted by the DOL, the written notice will take care of itself in most instances. Based on these rules, the court denied concluded that Gannett's denial of Branham's leave request violated the FMLA.

Branham satisfied her notification requirement on November 13, 2006, when she asked Buhler “about taking leave, because [she] still wasn’t feeling well and had numerous doctors’ appointments scheduled for November and December.” But Gannett never properly triggered the additional duty to provide a medical certification supporting her claim. The district court found that Gannett requested certification on November 13, the day on which Buhler told Branham over the phone to come to the office and sign a short-term-disability form to “see if she qualified for anything.” In her deposition, however, Buhler testified that “Michele and I never at any time discussed FMLA leave.” It is true that Gannett’s short-term-disability form doubled as its FMLA leave form, but it is clear that Buhler communicated to Branham no information about the FMLA certification requirement, the fact that such certification was due within fifteen days, or the consequences of failing to return an adequate certification.... We therefore must conclude that Gannett was not entitled to delay or deny leave to Branham on the basis of the certification requirement. 

In this case, Gannett's biggest mistake was using its own form (the short term disability form) for FMLA purposes. It should have used the DOL's suggested forms. Part B of form WH-381, entitled "Notice of Eligibility and Rights & Responsibilities" [pdf], states:

As explained in Part A, you meet the eligibility requirements for taking FMLA leave and still have FMLA leave available in the applicable 12-month period. However, in order for us to determine whether your absence qualifies as FMLA leave, you must return the following information to us by _________________. (If a certification is requested, employers must allow at least 15 calendar days from receipt of this notice; additional time may be required in some circumstances.) If sufficient information is not provided in a timely manner, your leave may be denied.

The form then has this check-box: "Sufficient certification to support your request for FMLA leave. A certification form that sets forth the information necessary to support your request ____is/____ is not enclosed." All an employer needs to do to satisfy its requirement to ask for the certification in writing is use this form, fill in the date by which certification must be returned, check the box asking for the certification, and provide a copy of form WH-380-E, Certification of Health Care Provider for Employee’s Serious Health Condition [pdf]. The rules are not complicated, but, as Branham v. Gannett Satellite Information illustrates, the penalties for not following them are punitive.

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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.

Happy Labor Day

http://www.gocomics.com/reallifeadventures/2010/09/06/

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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 #142 (“It’s the bitches that’ll get yas” edition)

Earlier this month, the Second Circuit, in Pucino v. Verizon Communications, held that repeated use of the word “bitch” could create a hostile work environment. I decided Dan Schwartz’s (of the Connecticut Employment Law Blog) blog post was worthy of the following tweet:

Misinterpreting my tweet, @CarlosDuranLive responded with the following:

Yikes. I share this little back-and-forth for two reasons: 1) words can often be misunderstood or taken out of context, and 2) your duty as an employer is to take seriously and investigate every complaint by every employee about words, no matter how silly the interpretation of events might be.

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

Discrimination

• HR’s uneven response to graffiti and swastikas: “Close” counts in horseshoes … not harassment – from Mindy Chapman’s Case in Point

• Is It Okay for Women to Breastfeed at Work? – from Margaret Heffernan at bnet

• Can Employers Prohibit Employees From Expressing Their Religious Views in the Workplace? – from New York Labor and Employment Law Report

• How Sex Hurts the Workplace – from Manpower Employment Blawg

• Hypnosis and Sex Harassment – from The Word on Employment Law with John Phillips

• Harassment by Hypnosis – from Philip Miles’s Lawffice Space

• Posner - “Nebulous suspicions voiced by a busybody” not protected under Title VII – from GT LE Blog

• Diabetic Distinctions: THE ADA AND THE ADAAA – from Employment Essentials

• No good deed goes unpunished – from Work Matters

• “The Company You Keep”: Association Discrimination under the ADA – from George Lenard’s George's Employment Blawg

• 5 Women Sue Toy Company Claiming Sexual Harassment – from Christopher McKinney at the HR Lawyer’s Blog

• “Same Actor” Defense – from The Labor and Employment Law Blog

Wage & Hour

• DOL’s Trojan horse: “We’re from the DOL and We Can Help” – from Dean LeDoux at The HR Specialist

• Latest DOL Opinion On Donning and Doffing, Not So Fast - 6th Circuit Says – from Michael Fox’s Jottings by an Employer’s Lawyer

• Eleventh Circuit Rules for Employees on FLSA Enterprise Coverage – from Florida Employment Law Blog

• “The onslaught of wage and hour litigation continues unabated” – how will you protect yourself? – from CPEhr

• Health Care Industry: DOL Intensified Focus Mandates More Awareness – from Wage & Hour - Development & Highlights

• A looming issue under the FLSA: overtime and technology – from Sindy Warren at the Warren & Hays Employment Law Blog

• Walt Disney World Owes Cast Members Almost $450K Says U.S. Labor Department – from StitchKingdom.com

FMLA

• FMLA FAQ - Is a cold or the flu a serious health condition? – from FMLA Insights

• When Can an Employer Ask for a Second Opinion for FMLA Leave? – from Southwest Florida HR Law & Solutions

• FMLA condition or insubordination? – from Stephen Meyer’s HR Cafe

• Preventive Fitness for Duty Exams – from San Antonio Employment Law Blog

Litigation

• What Was the Most Memorable Deposition You Have Been a Part Of? – from ABA Journal Daily News

• Do You Have a Discovery Plan? – from Katherine Gallo’s Resolving Discovery Disputes

• Sixth Circuit Applies Arbitrability Presumption to Question of Who May Arbitrate – from Sixth Circuit Appellate Blog

• Litigators Losing Love of Arbitration Argue for Trials – from Law.com

Trade Secrets / Non-Competes

• Caution Required: Severability Clauses in Non-Compete Agreements – from Trade Secrets & Non-Compete Blog

• Controlling The Message - The First Step – from Trade Secret / Noncompete Blog

• India and Trade Secrets: Former Board Member of Bombay Company Enjoined as to Some Information, But Not All, He Learned – from Trade Secrets Blog

• Computer Misuse Statutes Playing Bigger Role In Non-Compete and Trade Secret Cases – from Delaware Non-Compete Law Blog

Labor

• The Obama NLRB Starts Flexing Its Muscles – from Jeff Hirsch at the Workplace Prof Blog

• NLRB to Reconsider Cases Involving Voluntary Recognition Agreements, Successor Employers – from Washington D.C. Employment Law Update

• NLRB to Revisit Key Bush-Era Union Recognition Precedents – from Washington Labor & Employment Wire

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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 re-defines walking time as working time under the FLSA

In June, the DOL’s Wage & Hour Division issued an Administrator’s Interpretation finding that that the time spent by employees donning and doffing (that is, putting on and taking off) protective equipment required by law is compensable and must be paid. It also means that an employee’s work day begins with the donning of required protective equipment and ends with its doffing, and all of the time in-between is payable work-time. On Tuesday, the 6th Circuit, addressed the same issue in an opinion that is binding on all Ohio employers.

In Franklin v. Kellogg Company [pdf], the Court concluded that the time spent walking between the locker room and the time clock after donning and before doffing protective gear is compensable working time.

The Court started with restating some general principles. Federal wage and hour laws define the “workday” as “the period between the commencement and completion on the same workday of an employee’s principal activity or activities.” Generally, time spent walking to and from a time clock is not compensable. During a “continuous workday,” however, the FLSA covers “any walking time that occurs after the beginning of the employee’s first principal activity and before the end of the employee’s last principal activity … must be compensated.” Principal activities are those that are an integral and indispensable part of the activities which the employee is employed to perform.

Kellogg required all hourly employees to wear company-provided uniforms (pants, snap-front shirts bearing the Kellogg logo and employee’s name, and slip-resistant shoes, and safety equipment (hair and beard nets, safety glasses, ear plugs, and bump caps). Kellogg mandated that employees change into their uniform and safety equipment upon arriving at the plant, and to change back into their regular clothes before leaving the plant, so that the uniform and safety equipment could be washed and cleaned. Kellogg claimed that changing into and out of the uniform and safety equipment is not “integral and indispensable” (and is therefore not compensable) under the FLSA.

The 6th Circuit disagreed, applying a broad interpretation of what is necessary for an employee to perform his or her job. The court evaluated these three factors—(1) whether the activity is required by the employer; (2) whether the activity is necessary for the employee to perform his or her duties; and (3) whether the activity primarily benefits the employer—and concluded:

[D]onning and doffing the uniform and equipment is both integral and indispensable. First, the activity is required by Kellogg. Second, wearing the uniform and equipment primarily benefits Kellogg. Certainly, the employees receive protection from physical harm by wearing the equipment. However, the benefit is primarily for Kellogg, because the uniform and equipment ensures sanitary working conditions and untainted products. Because Franklin would be able to physically complete her job without donning the uniform and equipment, … it is difficult to say that donning the items are necessary for her to perform her duties. Nonetheless, … we conclude that donning and doffing the uniform and standard equipment at issue here is a principal activity. Accordingly, under the continuous workday rule, Franklin may be entitled to payment for her post-donning and pre-doffing walking time.

This opinion has significant implications for any Ohio, Michigan, Kentucky, or Tennessee employer that requires its employees to change into protective gear or mandatory uniforms. After Kellogg, it is clear that the 6th Circuit is going to apply a very broad definition of “integral and indispensable,” even where uniforms or safety gear are not necessary for an employee to perform the job. As long as the donning and doffing is mandatory and provides some benefit to the employer (here, a sanitary workplace), it is compensable working time.

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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.

You are what you wear—at least according to the 6th Circuit and “donning and doffing”

Section 203(o) of the Fair Labor Standards Act allows an employer to refuse to pay employees for time spent changing clothes if it has been excluded by custom or practice under a bona fide collective bargaining agreement:

Hours Worked.—In determining for the purposes of sections 206 and 207 of this title the hours for which an employee is employed, there shall be excluded any time spent in changing clothes or washing at the beginning or end of each workday which was excluded from measured working time during the week involved by the express terms of or by custom or practice under a bona fide collective-bargaining agreement applicable to the particular employee.

Yesterday, in Franklin v. Kellogg Company [pdf], the 6th Circuit was presented with the question of whether the donning and doffing of safety equipment constitutes “changing clothes” under section 203(o). At issue was Kellogg’s long-standing policy, adopted by its union contract, of not paying employees for time spent putting on and taking off company-provided uniforms (pants, snap-front shirts bearing the
Kellogg logo and employee’s name, and slip-resistant shoes) and standard safety equipment (hair and beard nets, safety glasses, ear plugs, and bump caps).

After noting that the Department of Labor has changed its mind at least three times on whether safety equipment qualifies as “clothes” under 203(o), the 6th Circuit applied a common sense, dictionary definition to settle the dispute:

A leading dictionary defines “clothes” as “clothing,” which itself is defined as “covering for the human body or garments in general: all the garments and accessories worn by a person at one time.” … Thus, the plain meaning of the word “clothes” is quite expansive. However, because the statute indicates that § 203(o) applies to changing into clothes worn during the workday, Congress was referring to clothes worn for the workday and not simply “ordinary” clothes. … Accordingly, there is no reason to limit the definition of clothes to uniforms, which are made up of pants and shirts…. Instead, “clothes” within the meaning of § 203(o) refers to any “covering for the human body or garments in general,” particularly those worn for work….

Given the context of the workday, § 203(o) clearly applies to the uniform at issue in the case at hand. The remaining items—hair and beard nets, goggles, ear plugs, nonslip shoes, and a bump cap—are also properly construed as clothes within the meaning of § 203(o). Each of these items provides covering for the body. Although they also provide protection to the body, we see no reason to distinguish between protective and non-protective clothes. It is arguable that even the uniform, which is clearly clothing, provides protection to the body. We recognize that there may be some heavier protective equipment than what is at issue here that is not clothing within the meaning of § 203(o). However, the items at issue here are simply “standard safety equipment.”

In other words, because the safety equipment serves as a covering for the body, it qualifies as “clothes” under section 203(o).

Unless you are a unionized employer with a contract that codifies a custom or practice of nonpayment for time spent changing clothes, this opinion is of little practical import. It serves, however, as a good example of a court cutting to the chaff and applying its common sense to arrive at a practical result.

Tomorrow, I’ll be back with an analysis of the second part of this opinion (which will be of greater interest to many more employers)—whether Kellogg’s employees are entitled to be paid for time spent walking between the locker room and the time clock.

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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? Challenging non-competition agreements

While my practice is heavily slanted towards the representation of management in employment disputes, from time to time I represent employees. Usually, it’s in an advisory role with non-compete agreements, when someone leaves one position for another.

Employees faced with a non-compete when leaving a job to work for a competitor or quasi-competitor have three choices:

1. Approach the old employer—either as part of severance negotiations or otherwise—and attempt to negotiate or buy your way out of the non-compete.
2. Work for the competitor and wait to get sued.
3. Preemptively sue your old employer seeking a declaration that the non-compete is invalid.

In all likelihood, if you ignore option number 1, or negotiations fail, you, and maybe your new employer, will get sued. The latter option, though, has some great upside for employees with specious non-competes. It lets you control the timing and venue of the lawsuit. It also lets you play offense instead of defense in trying to void or modify an overly broad agreement. For a good example of where this strategy worked well, see Jacono v. Invacare Corp. The downside, of course, is the expense. Something to consider if you are faced with a new job and a non-compete of dubious enforceability.

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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.