Social media isn’t the only media that can come back to haunt you

It seems that every day, there is another example of an employee who got in trouble for something posted on Facebook, or Twitter, or one of the myriad other social media websites. This week’s story—via The Word on Employment Law with John Phillips—concerns an Ohio teacher busted for messaging on Facebook with a student about having sex. These issues, though are not new. They have just become more prominent because of the prevalence and pervasiveness of social media in our lives.

For example, consider the case of Christine O’Donnell. A mere five days after she won the Delaware Republican senatorial primary, comedian-cum-pundit Bill Maher ran on his current TV show an 11-year-old clip from Mr. Maher’s old TV show of Ms. O’Donnell discussing her trifling with witchcraft as a teenager. CNN.com has the details (and the video):

“I dabbled into witchcraft - I never joined a coven. But I did, I did…. I dabbled into witchcraft,” O’Donnell said during a 1999 appearance on the show, which ran on ABC. “I hung around people who were doing these things. I'm not making this stuff up. I know what they told me they do.”

She then described one of her first dates—with a witch “on a satanic altar.”

“I didn't know it,” she said. “I mean, there's little blood there and stuff like that. We went to a movie and then had a midnight picnic on a satanic altar.”

Stories like these will become more prevalent as social media continues to pervade every aspect of our lives. The question for employers to answer is to what extent revelations like those surrounding Christine O’Donnell will play (and should play) in decisions affecting the hiring of new employees and the retention of existing employees. Should a decades-old youthful indiscretion disqualify someone from employment? We all have things in our past that we hope do not get discovered in our present. Social media, however, makes our pasts that much harder to distance ourselves from.

I offer no answers, but merely raise the issue for consideration as we continue our metamorphosis into a society that favors public disclosure over personal privacy.

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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.

Paycheck Fairness Act poised for passage - This is a huge deal for employers

The Washington DC Employment Law Update is reporting that the Senate is set to start debate on the Paycheck Fairness Act, perhaps as early as this week. Employers, this news is huge. The Paycheck Fairness Act has the potential to revolutionize (and not in a good way) companies' payroll practices. For more on why you should be very concerned about this legislation, please take a few moments and read my summary from a few months ago -- What is the Paycheck Fairness Act and why should employers be concerned? Then, take a few more moments and call or email your Senator to express your opinion that this legislation should not pass:

• Senator Sherrod Brown: 888-896-6446, or brown.senate.gov/contact
• Senator George Voinovich: 202-224-3553, or voinovich.senate.gov/public/index.cfm?FuseAction=Contact.ContactForm

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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? Men are entitled to protection from sexually hostile work environments too

The typical sexual harassment case involves a man harassing a woman. Harassment, however, isn’t limited to just man-on-woman. The umbrella of sexual harassment also includes man-on-man, woman-on-woman, and, as recently discussed by the 9th Circuit, women-on-men. In EEOC v. Prospect Airport Services (9th Cir. 9/3/10) [pdf], the 9th Circuit held that that a female co-worker’s “relentless” pursuit of a male employee—which included six months of constant sexual pressure and humiliation—could form the basis of a sexually hostile work environment. In ruling, the court rejected any stereotypes that man would welcome harassment from a female co-worker:

It cannot be assumed that because a man receives sexual advances from a woman that those advances are welcome…. [T]hat is a stereotype…. Title VII is not a beauty contest, and even if Munoz looks like Marilyn Monroe, Lamas might not want to have sex with her, for all sorts of possible reasons. He might feel that fornication is wrong, and that adultery is wrong as is supported by his remark about being a Christian. He might fear her husband. He might fear a sexual harassment complaint or other accusation if her feelings about him changed. He might fear complication in his workday. He might fear that his preoccupation with his deceased wife would take any pleasure out of it. He might just not be attracted to her. He may fear eighteen years of child support payments. He might feel that something was mentally off about a woman that sexually aggressive toward him. Some men might feel that chivalry obligates a man to say yes, but the law does not….

This case serves as a good reminder to review your harassment policy for completeness. Does it cover all kinds of unlawful harassment? Not just the reverse sexual harassment discussed in Prospect Airport Services, but harassment based on race, national origin, religion, age, disability, military status, genetic information, and (where applicable) sexual orientation? If not, it’s time to call your lawyer, update your policy, and re-train your employees on their non-harassment responsibilities.

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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.

More on cancer as a disability

Last week I wrote how businesses would likely see more employees claim cancer as a protected disability under the Americans with Disabilities Act. The EEOC proves my point. The agency recently announced that it has sued a Michigan company for failing to accommodate an employee who needed a reduced work schedule while undergoing cancer treatments:

According to the agency’s pre-suit investigation, Derek Nelson, who had been employed by IPC as a machinist for over ten years, went on medical leave in 2008 in order to undergo chemotherapy. The EEOC’s suit alleges that in January 2009, when Nelson sought to continue working part-time while he completed his treatment, IPC discharged Nelson for exceeding the maximum hours of leave allowed under company policy. That decision, the agency contends, violated IPC’s obligation to reasonably accommodate Nelson’s disability.

Meanwhile, in Boca Raton, Florida, a federal jury awarded Kara Jorud $8.1 million for her claim that Michael’s Arts and Crafts terminated her because of her cancer.   Ms. Jorud, suffering from breast cancer, had a double mastectomy and was ill from the follow-up chemotherapy. She claimed that her manager forced her back to work early following her surgery, required her to work while ill, and harassed her. The Palm Beach Post recounts Jorud’s manager telling her, “How often do you have to do this? You will be here on Monday after chemo.” LawyersandSettlements.com fills in the rest of the details:

In her lawsuit, Jorud said she had taken a six-week medical leave following her surgery, but within days the cancer patient began taking calls from her District Manager inquiring as to her return. Jorud was originally tasked to turn around the store’s reportedly failing operations.

Jorud returned to work less than a month after surgery because, she testified, she feared for her job.

At one point, the plaintiff brought her fiancé and his son into the store to help her shift inventory ahead of a pending delivery because she was weak from the aftereffects of chemotherapy. The cancer patient was fired three days later, reportedly one day before her next scheduled chemotherapy treatment.

The plaintiff was also accused of theft prior to her firing, a charge that Jorud later disproved and the district manager later admitted to be false, according to the newspaper account.

These cases should serve as a warning sign for employers dealing with employees with serious treatable illnesses. It is no longer enough to provide an employee the statutorily mandated 12 weeks of FMLA leave, or to merely follow one’s own leave of absence policy. Instead, as these cases illustrate, employers should consider reasonable accommodations such as part-time or modified work schedules.

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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 #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.