Honoring National Disability Employment Awareness Month on the Proactive Employer podcast

October is National Disability Employment Awareness Month. Tomorrow, to mark its first day, I’ll be recording on a special one-hour installment of Stephanie Thomas’s Proactive Employer podcast. For this special, Stephanie has gathered an all-star panel of guests. Appearing with me will be Cari Dominguez, the Former Chair of the U.S. Equal Employment Commission, Sheridan Walker, the president of HR consulting firm HirePotential, Kevin Bradley, the Director of Diversity for McDonald’s, and James Rodriguez, the Strategic Military Talent Manager for BAE Systems, Inc. I am very much looking forward to what should be an engaging and spirited discussion about the role of the ADA for today’s workforce.

The podcast will be available sometime next week on Stephanie’s website. You can also check out all 42 prior episodes on iTunes, or via The Proactive Employer iPhone app (Stephanie, where’s the Android love?). I always enjoy being Stephanie’s guest, and I am sure tomorrow will be no exception.

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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.

Productivity, yes; sleeping on the job, no

© Greg Hartmann

Tony Schwartz, writing at the Harvard Business Review's The Conversation Blog, thinks that employees would be more productive if they took naps everyday between 1 p.m. and 3 p.m. While I haven't studied the evidence he cites, this idea strikes me as a bad one. Even if a siesta can increase productivity and mental sharpness, think of the possible problems. Do you want to deal with the harassment complaint when you-know-who falls asleep next to oh-no-not-that-guy? Or, what about the customer relations nightmare when your largest account finds out his key contact person is sleeping at 2 p.m.? Perception often becomes reality, and the reality of that situation will be your largest customer finding a company where the employees don't nap during the work day.

Instead, let me suggest a couple of alternatives to increase employee productivity.

1. Spend an hour per day (during a non-peak time) in a technology-free zone. Turn off your phone, your PDA, and your computer. Imagine how much you could get done with no phone calls, no emails, and no Facebook.


2. Google lets its employees spend up to 20% of their time working on their own projects and ideas, a policy called Innovation Time. From this practice, Google has gotten an astounding 50% of its products (including Gmail, Google News, and AdSense). Most employers do not have the luxury of their workers spending one day per week doing whatever interests them. But, there are other things you can do to spark productivity in your workplace. For example, my firm just awarded three sets of Indians tickets to employees who submitted the best new ideas (Please, no jokes about whether going to see the Indians is a reward or a punishment). 

There is a lot your business can do to promote productivity and creativity without encouraging employees to sleep on the job. It just takes a little creativity on your own part.

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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.

Grooming and appearance policies continue to make headlines as fulcrum of religious discrimination lawsuits

Grow your dreadlocks
Don’t be afraid of the wolf-pack
A tell you, one man a walkin’
And a billion man a sparkin’
Rastaman, live up

~Bob Marley, Rastaman Live Up

The EEOC has sued a Virginia moving company that refused to hire a Rastafarian because of his dreadlocks. According to the agency:

Christopher Woodson applied for a job as a loader at Lawrence Transportation’s Waynesboro, Va., facility in May 2008. Woodson, who is Rastafarian, wears his hair in dreadlocks in accordance with his religious belief that he should refrain from cutting his hair…. Lawrence Transportation refused to hire Woodson as a mover because he would not cut his hair, even though Woodson had fourteen years of experience in the moving industry, including several years with Lawrence prior to his conversion to the Rastafarian religion. To address the company’s concerns regarding the appearance of Woodson’s hair in relation to Lawrence Transportation's grooming policy, Woodson offered to tie his hair up, wear a head wrap or wear a cap over his head. The hiring official rejected Woodson’s offers and told Woodson that the company would not hire him if he did not cut his hair.

Amanda Hess, writing at TBD.com, quotes a press statement from Lawrence Transportation, in which it defends its decision:

“Lawrence Transportation did not hire Mr. Woodson because he would not comply with our personal appearance policy,” the statement reads. According to Lawrence Transportation, employees are required to have “close personal contact” with customers, and non-standard hairstyles could affect Lawrence's ability to “provide the service expected by” these people.

“[Woodson’s] hair was down to the middle of his back and he was asked to get it cut to about shirt collar length,” the statement continues. “He refused to comply with this neutral policy.”

Personal appearance policy is a huge red flag. As I’ve discussed before, Title VII requires an employer to reasonably accommodate an employee’s sincerely held religious belief, practice, or observance that conflicts with a work requirement, unless the accommodation would create an undue hardship. The employer in this case is arguing that it does not have to accommodate Woodson because his long, dreadlocked hair will deter customers and cost it business. That argument, however, smacks of the very stereotypes Title VII protects against.

The EEOC continues to take a long, hard look at businesses that fail to accommodate religious practices that cause employees to look (or not look) a certain way. Unless your business can tie employees’ appearance to an integral part of your business (safety issues, Disney cast members, Abercrombie & Fitch’s “look”), you should think (and re-think) about any decision not to accommodate an employee’s religiously-based appearance or grooming.

[Hat tip: Overlawyered]

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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? More on the lack of privacy in social media

There are not (yet) many cases dealing with the discovery of litigants’ social networking information. Thus, whenever a court addresses the issue, it becomes newsworthy.

Romano v. Steelcase Inc. (N.Y. 9/21/10) [pdf] is a personal injury case. The defendant claimed that information the plaintiff posted on her Facebook and MySpace pages was inconsistent with her claim regarding the nature and extent of her injuries. The court disagreed with the plaintiff’s argument that she had any expectation of privacy what she posted on social networking sites:

Thus, when Plaintiff created her Facebook and MySpace accounts, she consented to the fact that her personal information would be shared with others, notwithstanding her privacy settings. Indeed, that is the very nature and purpose of these social networking sites else they would cease to exist. Since Plaintiff knew that her information may become publicly available, she cannot now claim that she had a reasonable expectation of privacy. As recently set forth by commentators regarding privacy and social networking sites, given the millions of users, “[i]n this environment, privacy is no longer grounded in reasonable expectations, but rather in some theoretical protocol better known as wishful thinking.”

It is becoming increasingly more difficult to convince courts that individuals have any privacy expectations in social networking information. Instead, these discovery disputes turn on issues of relevancy—whether the information bears on any issue in the case. In cases involving injuries (whether physical or emotional, and including employment cases), plaintiffs will have a very hard time shielding this type of information from discovery.

[Hat tip: Delaware Employment Law 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.

Silence can be golden in defending discrimination cases

Ben Franklin once said, “As we must account for every idle word, so must we account for every idle silence.” In Young v. Galion, LLC (N.D. Ohio 9/17/10) [pdf] the court latched onto the plaintiff’s silence dismissing his age discrimination claim:

[T]he major flaw in plaintiff’s case is his inability to provide any evidence of a nexus between his termination and any discriminatory motive. He made no protest to that effect to the defendant, and never mentioned it in conversations with a fellow employee with whom he had a close relationship. Plaintiff’s deposition testimony was clear as regards the fact that he had no inkling that age bias purportedly entered into the decision to discipline or terminate him prior to meeting with an attorney subsequent to his termination.

One of the things I look for in defending any discrimination case is whether the employee complained of discrimination during his or her employment. While it is not required that one complained it certainly makes the claim of discrimination appear less believable if the plaintiff never raised the issue with anyone until the filing of the 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.

WIRTW #145 (the bad legislation edition)

Earlier this week, I urged you, my readers, to take a stand against the Paycheck Fairness Act by calling or emailing your Senators and expressing your opposition to this bill. The following bloggers share my concerns (albeit some more than others):

• Read This Before You Decide on Paycheck Fairness Act – from Stephanie Thomas’s The Proactive Employer

• One last push for the misnamed Paycheck Fairness Act – from Carter Wood at PointOfLaw Forum

• Paycheck Fairness Act Poised for Passage – from Ann Bares at Compensation Force

• Paycheck Fairness Act: You Decide Is This Necessary? – from Michael Haberman’s HR Observations

• Labor Secretary and Lilly Ledbetter Push for Paycheck Fairness Act – from Shopfloor.org

• A Late Addition to the Roster: Paycheck Fairness Act Finally Appears in the Senate – from Employment Class Action Blog

• Fair Pay Isn’t Always Equal Pay – from Christina Hoff Sommers at the New York Times

• Unfair “Paycheck Fairness Act” shafts workers with dangerous jobs; equal pay for unequal work – from Hans Bader at DC SCOTUS Examiner

• “Wage Discrimination Touches Everyone,” Says Lilly Ledbetter – from BLR

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

Discrimination

• Italian-Americans choose the wrong causes – from Rob Schwartz’s Fairness Matters

• Dissecting the EEOC’s Position on Criminal Background Checks – from employeescreenIQ Blog

• Muslims Report Rising Discrimination at Work – from Steven Greenhouse at the New York Times

• McDonnell Douglas Bites the Dust in Tennessee – from Michael Fox’s Jottings By An Employer’s Lawyer

• Many Types of Evidence Help Prove a Discrimination Case – from Tom Crane’s San Antonio Employment Law Blog

• Tenth Circuit Decides Important Age Discrimination Case – from Today’s Workplace

• Should Employers Try More Cases Before Juries? – from Patrick Smith’s Iowa Employment Law Blog

• The Internet - The Next Frontier for the ADA: Will Your Website Comply? – from Pennsylvania Labor and Employment Blog

• Harassment complaints: Don’t let your corrective action be the tree falling in the woods – from Sindy Warren at the Warren & Hays Employment Law Blog

• Caution: Improper Harassment Investigations Can Result in a Hostile Work Environment Claim – from Wyatt Employment Law Report

• Employee Sues, Settles, Gets Rehired – from Workplace Prof Blog

• Plaintiff failed to show that Facebook pics supported hostile workplace claim – from Evan Brown’s Internet Cases

Wage & Hour

• The FMLA Connection (in Connecticut) to Organ Donors and How Employers Can Help – from Dan Schwartz’s Connecticut Employment Law Blog

• Tougher regulations and penalties when employing minors – from Employment Law Bits

• OSHA’s Applicability to NFL – from The Word on Employment Law with John Phillips

• NDAA 2011 to Amend USERRA to Permit 2 Weeks of Annual Leave for Family of Deployed Members of the Uniformed Service – from The FMLA Blog

• Seventh Circuit Clarifies Overtime Damages For Misclassified Employees – from Wage and Hour Laws Blog

• Failure to Follow Employer’s Leave Procedures Dooms FMLA Claim – from FMLA Insights

• Congress Proposes Additional Independent Contractor Legislation: “The Fair Playing Field Act” Receives Strong Support From White House – from Hunton Employment & Labor Law Perspectives™

Employee Relations

• B is for Bully – from Victoria Pynchon’s Settle It Now Negotiation Blog

• Why You’re More Likely Than Ever to be Held Hostage Over That Office Romance – from Kris Dunn’s The HR Capitalist

• Employee privacy: Audit uncovers on-the-job sexting – from Stephen Meyer’s HR Cafe

• Superbug Reminds Employers to Get a Pandemic Policy – from Delaware Employment Law Blog

• They Know Who You (and your employees) Are! – from Philip Miles’s Lawffice Space

Trade Secrets and Non-Compete Agreements

• Eight Reasons Small Businesses Should Use Non-Compete Agreements – from Trade Secrets & Non-Compete Blog

• Noncompete Agreements: Stopping Former Employee From Soliciting May Not Protect Business – from Rush Nigut’s Rush on Business

• Protecting your business from an employee departure - the IT response – from Rob Radcliff’s Smooth Transitions

• Why Should I Be Concerned If Only One of My Sales Managers has Signed the Company Noncompete/Confidentiality Agreement? – from Trade Secret / Noncompete 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.

Does rampant age discrimination in this job environment make sense?

Motoko Rich writes in the New York Times that older unemployed workers may never work again:

Of the 14.9 million unemployed, more than 2.2 million are 55 or older. Nearly half of them have been unemployed six months or longer, according to the Labor Department. The unemployment rate in the group—7.3 percent—is at a record, more than double what it was at the beginning of the latest recession.

After other recent downturns, older people who lost jobs fretted about how long it would take to return to the work force and worried that they might never recover their former incomes. But today, because it will take years to absorb the giant pool of unemployed at the economy’s recent pace, many of these older people may simply age out of the labor force before their luck changes.

I cannot accept an argument that businesses do not desire older workers. Conventionally, a business might choose to hire young because of a belief that a more experienced candidate would demand a higher salary. Thus, even though a younger hire would require more in the way of sunk costs (training, etc.), he or she would make up for it with lower pay.

This argument no longer holds true. Do you think for a minute that anyone, no matter the age, who finds himself or herself unemployed for an extended period of time has any leverage to make salary demands? Thus, businesses are in a position to hire more experience for less pay. Assuming starting salaries are equal, which candidate would you hire: the 25-year-old with scant experience, or the 50-year-old with decades of experience? The former will cost your business time and money in training, along with lost productivity. The latter will bring your company a skill-set that will let him or her hit the ground running with little or no training. To me, the decision is a no-brainer. For this reason, I simply cannot accept Mr. Rich’s argument that those 50 and older might find themselves unemployed in perpetuity.

[Hat tip: The Word on Employment Law with John Phillips]

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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.