WIRTW #144 (the shameless plug edition)

For the last three years, the ABA has published its Blawg 100—a list of the best legal blogs as judged the the editors of the ABA Journal. The ABA will publish its 2010 list in December. This year, however, the ABA is soliciting recommendations:

Use the form below to tell us about a blawg—not your own—that you read regularly and think other lawyers should know about. If there is more than one blawg you want to support, feel free to send us more amici through the form. We’ll be including some of the best comments in our Blawg 100 coverage. But keep your remarks pithy—you have a 500-character limit…. Friend-of-the-blawg briefs are due no later than Friday, Oct. 1.

I’ve already made my votes (which I’m keeping to myself).

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

Discrimination

• Friends – Rachel promotes rites of mothers? – from Rob Schwartz’s Fairness Matters

• Discrimination against Muslims and the “Ground Zero mosque” – from Sindy Warren at the Warren & Hays Employment Law Blog

• All Eyes On Ines Sainz Sexual Harassment Controversy – from Caroline Howard’s Social Medea

• Stop Asking Me About Inez Sainz – from Tim Eavenson’s Current Employment

• EEOC Steps Up Enforcement of ADA Amendments Act of 2008 – from Southwest Florida HR Law & Solutions

• New ADA Regulations for Titles II and III – from Workplace Prof Blog

• Vacant Position: Reasonable Accommodation for Disability – from The Word on Employment Law with John Phillips

• EEOC Weighs in on Employment Background Checks – from Nick Fishman at the employeescreenIQ Blog

• A Victor-y For One Employer Sends Mixed Messages On Disability Claims – from Prima Facie Law Blog

• Things Employers Can Ask in a Job Interview – from Tom Crane’s San Antonio Employment Law Blog

• Chicago-area Man Awarded $4.2 Million by Jury for Religious and Ethnic Harassment – from Chris McKinney’s HR Lawyer’s Blog

• Employee Complaint Investigations: Why you must make interviewees comfortable – from Stephen Meyer’s HR Cafe

• Stereotyping and “Reverse” Sexual Harassment – from Teresa Cheek at the Delaware Employment Law Blog

• Comment on Worker’s Cane Left CEO Limping Out of Court – from Mindy Chapman’s Case in Point

Labor Law

• NLRB Is Set to Rule in Favor of Unions Not Employees – from Michael D. Haberman’s HR Observations

• Obama Deems Chance of EFCA Passage Dim – from Washington D.C. Employment Law Update

• Why would a union favor its own decertification? – from Walter Olson’s Overlawyered

• Employee Who Opposes Unionization Can Seek Injunction, Says Eleventh Circuit from Florida Employment Law Blog

HR & Employee Relations

• $75,000: The Magic Number – from Matt Gibson’s Wills & Wealth

• And This Little Workplace Piggy Had None – from Workplace Diva

• What I Learned From Rex Ryan, or Why Workplace Bragging is a Bad Idea – from TLNT

• Why employment law is like “Survivor” – from Jay Shepherd’s Gruntled Employees

Social Media & Technology

• Social Networking and Workers’ Compensation Law at the Crossroads – from Gregory Duhl & Jaclyn Miller

• Check You Gmail: Google Engineer Accused of Being a Little Evil – from Abovethelaw.com

• The “Public” vs. “Private” Facebook Page: Thorny Issues for Employers – from Dan Schwartz’s Connecticut Employment Law Blog

• Non-solicits that address social media communications – from Rob Radcliff’s Smooth Transitions

• New Site Protects Trademarks in Social Networks – from Robert Ambrogi's LawSites

• As Germany Considers Restrictions on Use of Social Media for Recruiting, Multi-National Employers Need to Start Thinking About Social Media Policy 2.0 – from Workplace Privacy Counsel

• Major Lindsey Drops Suit After Federal Court Nixes Computer Fraud & Abuse Act Claim and Hints at RICO Dismissal – from Trade Secrets & Non-Compete Blog

• Why Facebook, Twitter and Jurors Don’t Mix – from DailyFinance:

Wage & Hour

• New Bill to Attack Worker Misclassification – from Mary Keating’s Maryland Employment Law Developments

• Employer Agrees To Forfeit $1.2 Million And Pay Fine For Conspiring To Harbor Illegal Aliens – from Eric Welter’s Laconic Law Blog

• Equal Pay for Equal Work? Not Necessarily – from You’re the Boss Blog

• Paycheck Fairness Act Reintroduced in Senate – from Washington D.C. Employment Law Update

• States Are Enhancing Enforcement of Wage Hour Laws: Revenue for The State And Wages to the Workers – from Wage & Hour - Development & Highlights

• FMLA FAQ - What's the Deal With the Poster? vFMLA Insights

• Fifth Circuit Holds Staff Leasing Company May Assert Motor Carrier Exemption – from Wage & Hour Counsel

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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.

Taking more than one bite at the apple in discrimination cases

One of the anomalies of Ohio’s employment discrimination statute is that it provides for individual liability for managers’ and supervisors’ own acts of discrimination. This peculiarity presents at least three issues for businesses to deal with:

1. By adding an in-state manager or supervisor as a defendant, Ohio employees can make it difficult for out-of-state businesses to remove discrimination cases to federal court based on diversity of citizenship.

2. A conflict of interest may prevent one attorney from defending both the business and the individual defendant, thus signaling to the plaintiff that there may be liability problems.

3. A federal court may pass on hearing the state law claims against the individual defendant, thereby giving the plaintiff two bites at the apple.

Price v. Carter Lumber Co. (Ohio Ct. App. 9/15/10) [pdf] is a poignant illustration of this third issue.

Gerald Price claimed that his former supervisor, Jim Collins, told him that Carter Lumber was not willing to work around his dialysis schedule and therefore would not rehired him. Price sued Carter Lumber and Collins in federal district court for disability discrimination. The federal court dismissed without prejudice (meaning Price was free to re-file) the state-law claims against Collins. Price then sued Carter Lumber and Collins in state court. After Carter Lumber won a jury verdict in federal court, both it and Collins moved the state court for dismissal.

The law uses a lot of Latin phrases, one of which I am about to introduce—res judicata. Ohio law uses res judicata as an umbrella term to cover both claim preclusion and issue preclusion. Claim preclusion bars subsequent actions between the same parties (or those related to them) on all claims arising out of the transaction that was the subject of a previous action. Issue preclusion bars the same parties (or those related to them) from re-litigating an issue in a subsequent action if the fact or point was directly at issue in a previous action and was ruled upon by a court. In other words, a plaintiff is only supposed to get one bite at the proverbial apple.

The court of appeals concluded that even though a federal jury concluded that Carter Lumber did not discriminate against Price, a state court jury might have the opportunity to determine the same issue as to Collins, one of its supervisors. Whether Price was able to litigate his discrimination and intentional infliction of emotional distress claims against Collins would hinge on the trial court’s review of the specific issues decided by federal jury.

It is likely that Collins will ultimately succeed and have the state court claims dismissed. Yet, that fact that he has to spend time and money litigating the issue—when a jury has already concluded that the employer did not discriminate—is reason enough for Ohio’s legislature to amend our state discrimination statute to bring it on par with its federal counterpart by eliminating individual liability. 

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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.

Card check is dead … long live card check

The NLRB is set to revisit its rules for secret ballot elections for voluntarily recognized unions. If it reverses course, it will administratively do that which Congress has been unable to do—make secret ballot elections that much harder to obtain. The process the NLRB is reconsidering—its 2007 decision in Dana Corp.—is needed to ensure that employees always have access to a secret ballot election to protect their free choice in deciding whether or not to be represented by a labor union. And, I have the anecdotal evidence to prove it. First, some background.

Generally, a union can become employees’ exclusive bargaining representative in one of two ways: a secret ballot election following a presentation of signed cards by more than 30% of the bargaining unit members, or a presentation of signed cards by more than 50%. An employer, however, does not have to recognize a union based solely on a majority of signed cards, and can require a secret-ballot vote overseen by the NLRB. Some card checks, however, are done by agreement whereby the employer recognizes the union upon the showing of a card majority and/or the employer remains neutral during the union’s organizational campaign (known as a “neutrality agreement”).

In Dana Corp., NLRB established that employees always have a right to a secret ballot election. The Board held that when an employer voluntarily recognizes a union based on a card-check, the employer must post a notice of the recognition and of employees’ opportunity to file for an election to decertify the union or in support of a rival union within 45 days of the notice. If within that 45-day window 30% of the bargaining unit members produce evidence that they support decertification, the NLRB will hold a secret ballot election. The NLRB adopted this rule “to achieve a ‘finer balance’ of interests that better protects employees’ free choice.”

Dana Corp. was decided at the height of the Bush-era, pro-management NLRB. Now, the Obama NLRB is considering overturning Dana, and going back to the prior rule that barred any election petitions for up to one year following a voluntary recognition. Following its decision in Rite Aid Store #6473 and Lamons Gasket Co., the NLRB issued a Notice and Invitation to File Briefs [pdf] on the following six issues:

1. What has been their experience under Dana and what have other parties to voluntary recognition agreements experienced under Dana?
2. In what ways has the application of Dana furthered or hindered employees’ choice of whether to be represented?
3. In what ways has the application of Dana destabilized or furthered collective bargaining?
4. What is the appropriate scope of application of the rule announced in Dana, specifically, should the rule apply in situations governed by the Board’s decision regarding after-acquired clauses in Kroger Co., 219 NLRB 388 (1975), or in mergers such as the one presented in Green-Wood Cemetery, 280 NLRB 1359 (1986)?
5. Under what circumstances should substantial compliance be sufficient to satisfy the notice-posting requirements established in Dana?
6. If the Board modifies or overrules Dana, should it do so retroactively or prospectively only?

I can provide an anecdotal answer to number one. Since the NLRB decided Dana Corp. in 2007, employers and unions have filed 1,111 requests for voluntary recognition (The NLRB has put together a spreadsheet summarizing all of these cases). Those requests resulted 85 election petitions, 15 of which the employees voted against the voluntarily recognized union. I was one of those 15 elections. The employees presented a nearly-unanimous showing of cards. After the Dana posting, 21 out of 33 employees signed a petition for a decertification election. All 33 employees voted, resulting in decertification by a vote of 17-16. In other words, the card check did not accurately represent the employees’ free choice. For this reason alone, Dana is an important rule that is needed to ensure that employees always have the opportunity to exercise and express their free choice through a secret ballot election.

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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? Discrimination against Muslims

We are now nine years post-9/11. To say that relations between Americans and Muslim-Americans are poor is an understatement. Our country has been worked into a froth over a proposed Mosque at Ground Zero. It seems that Muslims rank first in the category, “People against whom discrimination and marginalization is culturally acceptable.” Employment discrimination claims brought by Muslims have hit record numbers—higher in 2009 than even in 2002.

Discrimination against Muslims comes in two forms: national origin discrimination and religious discrimination. Both types are not that much different than a race discrimination claim. Failures to hire or promote, terminations, other unlawful employment actions, or harassment because of on one’s national origin or religion all constitute unlawful discrimination. For example, take the recent pair of cases filed by the EEOC against meatpacker JBS Swift, in which Muslim employees alleged that  blood and bones were hurled at them, bathroom walls were covered with vile graffiti and company supervisors fired many Islamic employees.

Religious discrimination, however, presents its own unique set of issues, because employers have an affirmative obligation to reasonably accommodate an employee whose sincerely held religious belief, practice, or observance conflicts with a work requirement, unless doing so would pose an undue hardship. Two recent stories illustrate the problems that these claims present for employers. Muslim employees continue to sue retailer Abercrombie & Fitch, challenging its “Look Policy” that prevents those who wear hijabs (religious head scarves) from being hired. Then, there is the Disneyland case, in which a Muslim employee, working as a hostess at a restaurant, protesting the theme park’s insistence that her costume cover her hijab so that she meets the “The Disney Look”—a 17-page document [pdf] outlining dress and grooming guidelines for all Cast Members to maintain uniformity and the suspension of disbelief, which has been used since Disneyland opened in 1955.

We all know that discrimination of all kinds is wrong. But, Muslim-Americans are practicing politics of exclusion in a time that calls for the opposite so that we, as a nation, can heal. The issue isn’t one of rights. Of course, one has a right to build a Mosque where one wants (and the law cannot stop the Ground Zero Mosque from being built). One should have the right to pray at work (as long as it doesn’t interfere with job performance or otherwise disrupt the workplace). One should have the right to wear religious garments in the workplace (although Abercrombie and Disney have the right to protect and project the public image that forms the foundation of their companies). Yet, as long as people insist on building a Mosque at Ground Zero, others will feel it’s okay to hurl meat and epithets.

There are no easy answers to these ugly problems. But, it’s not enough simply to say that employers have to cease discrimination. For the healing to begin, and for the discrimination to stop, there also has to be a showing of willingness, participation, and inclusion from the other side of the argument.

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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.

ADA Amendments redefine cancer as a disability

More than two years ago, I criticized a case that dismissed an employee’s disability discrimination claim on the basis that his cancer was limiting enough to qualify as a protectable disability:

This case leaves a bad taste in my mouth. An employee, suffering from cancer, who had a piece of his jaw replaced with a prosthesis, should be protected as having a “disability.” This case would allow a termination of female employee with breast cancer post-mastectomy. That result just doesn't sit right with me.

I think the cancer-is-not-an-ADA-disability cases are a thing of the past. Effective January 1, 2009, Congress amended the ADA to reinstate “a broad scope of protection.” Specifically, Congress found that the United States Supreme Court had narrowed the protections intended by the ADA, and rejected the holdings of Sutton v. United Air Lines, Inc. and Toyota Motor Manufacturing, Kentucky, Inc. v. Williams. The ADAAA did not change the statutory definition of “disability,” but made significant changes in how it is interpreted. Importantly, the ADAAA clarified that the operation of “major bodily functions,” including “functions of the immune system,” constitute major life activities under the ADA. Moreover, the ADAAA provides that “an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.” The “question of whether an individual’s impairment is a disability under the ADA should not demand extensive analysis.”

Hoffman v. Carefirst of Fort Wayne (N.D. Ind. 8/31/10) is one of the first cases decided under 2008’s ADA Amendments. It provides a poignant example of these new definitions in practice.

Stephen Hoffman claimed that his employer, Advanced Healthcare, terminated him because of his Stage III renal cancer (in remission at the time of his termination). In its defense, Advanced Healthcare argued that because Hoffman did not have a physical impairment which substantially limited a major life activity, he was not disabled under the ADA—the cancer was in remission, Hoffman returned to work without restrictions, he carried out his regular job duties of 40 hours a week a full year, and he did not miss any significant work-time.

The court rejected Advanced Healthcare’s argument that it “highly doubts that Congress intended all cancer survivors in remission, with no medical evidence of active disease, to be considered disabled as a matter of law for the rest of their lives.” Instead, the court concluded:

Because it clearly provides that “an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active,” and neither side disputes that Stage III Renal Cancer, when active, constitutes a disability, this Court must find that Hoffman was “disabled” under the ADAAA. In other words, under the ADAAA, because Hoffman had cancer in remission (and that cancer would have substantially limited a major life activity when it was active), Hoffman does not need to show that he was substantially limited in a major life activity at the actual time of the alleged adverse employment action.

This case not only serves as an excellent illustration of the problems addressed by the ADA Amendments, but is also shows how difficult it will be going forward for employers to prove that an employee’s medical condition does not qualify as an ADA-disability. If we assume that nearly all medical conditions are “disabilities” (and this assumption is pretty safe), then employers needs to refocus on the interactive process to reach a reasonable accommodation necessary to enable an employee to perform the essential functions of the job. Most ADA cases will now be won or lost on this issue, and it is incumbent on employers to put their best foot forward by appearing to have been as reasonable as possible with disabled employees.

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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 #143 (the “Are you ready for some football edition?”)

This weekend truly is one of the best sports weekends of the year. It’s opening Sunday for the NFL. Everyone’s 0-0 (even the Browns, who, for the record, I predict will be a very competitive 6-10 this season). For the fantasy football junkies out there, I recommend Happy New Year! Or, Happy First Day of (Fantasy) Football – from Daniel Schwartz’s Connecticut Employment Law Blog. As for my fantasy team, Adrian Peterson had a very pedestrian 19 carries for 87 yards last night. AP’s gotta pick it up if I’m going to make it back to the Superbowl this year.

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

Discrimination

• Is “The Big One” Too Big? The Wal-Mart Class Action Size – from The Proactive Employer

• Mark Hurd, HP & Oracle: Adventures in Employment Law – from Tim Eavenson’s Current Employment

• The Clash Between the “Disney Look” and Religious Customs – from The DIS Unplugged Disney Blog

• The Interactive Process Requires Employee to Consider Alternatives – from Tom Crane’s San Antonio Employment Law Blog

• The Eleventh Circuit and the Word “Boy” – from Workplace Prof Blog

• Actionable hostile work environment can be based upon a single action – from Maria Danaher at Employment Law Matters

• Can Employers Prohibit Employees From Expressing Their Religious Views in the Workplace? – from Christopher McKinney’s HR Lawyer’s Blog

Wage & Hour

• FMLA FAQ - Can We Require an Employee to See Our Doctor Before Returning to Work? – from FMLA Insights

• Renegotiating Union Contracts: I Got 99 Problems, Pay is Just One... – from Kris Dunn, The HR Capitalist

• A Closer Look at Occupation in Explaining the Gender Wage Gap – from Stephanie Thomas at Compensation Cafe

• Is PDA Use Relevant As To Exempt Employees? – from Wage and Hour Laws Blog

• Good News! The Sex Pay Gap Is Gone! – from Michael Haberman’s HR Observations

Social Media

• Appeals Court Rules Counsel May 'Google' Potential Jurors During Jury Selection – from Bruce Carton at Law.com - Inside Opinions: Legal Blogs

• Social Media in the Jury Box – from Molly DiBianca’s Going Paperless

• Trashing ex-employers – from Jen Weigel at the Chicago Tribune

• Should Employers Be Forbidden to Facebook You? – from Megan Friedman at Time Magazine

Background Screening

• Forging Criminal Background Checks Can Be Costly – from employeescreenIQ Blog

• Are felons achieving new status? – from Julie DelCour at the Tulsa World

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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.

Is organized labor finally making its resurgence?

Maybe its appropriate (or entirely a coincidence) that during the week in which we celebrate Labor Day, there have been so many stories in the news and in blogs discussing organized labor. Some proof, you ask?

• Board Decision Approves Stationary Bannering as Lawful Tactic in Secondary Boycotts – from the Washington DC Employment Law Update (discussing United Brotherhood of Carpenters and Joiners of America, Local Union No. 1506, in which the NLRB, in a partisan-line 3-2 decision, concluded that pro-union bannering, when conducted peaceably and independent of other, possibly coercive, conduct, is lawful).

• Obama NLRB Prepares To Eliminate Right to Secret Ballot for Union Organizing – from Mike Eastman at the Chamber Post (discussing the NLRB’s intent to “reconsider” Dana Corp., its 2007 decision which provided a limited window for secret-ballot decertifications following a card check recognition of a union).

• Organized Labor Targets Carwashes – from The Word on Employment Law with John Philips (discussing unions’ efforts to organize carwashes in Southern California).

• Big Labor’s Power Grab – from Mark Mix at the National Review, c/o npr.org (discussing unions’ efforts to overturn pro-management Bush-era NLRB decisions).

• Nostalgia For Unions – from E. J. Dionne at The New Republic, also c/o npr.org (yearning for labor unions in these tough economic times).

What does this all mean? Maybe nothing? More likely, organized labor has decided to stop waiting for President Obama to make good on certain campaign promises (like the Employee Free Choice Act) and take matters into its own hands by taking advantage of its majority on the NLRB. Businesses should prepare themselves for an upswing in organizing efforts, in addition to the possibility of a pro-union NLRB making decisions that reach outside of unionized workplaces to regulate the employer/employee relationship in general.

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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.