A lesson from Columbus Day

When I took the dog out for her morning walk, I noticed a newspaper in my driveway. You might not think that is all that remarkable, but when you only have weekend delivery, a Monday newspaper means one of two things: either the delivery person screwed up, or today’s a holiday. That is how I remembered that today is Columbus Day. No banks, no mail, no courts, but a Plain Dealer in my driveway. (Apologies to my wife for not bringing the paper in – lost in my own thoughts walking back into the house).

Christopher Columbus set out for Asia, and ended up discovering the Americas. Here’s where I bring this around to employment law. Where you start a case may not be where you end up. You might think you have the greatest defense since the ‘85 Bears, until the decision maker royally screws up his deposition. Or, you could have a serendipitous moment when you discover during the plaintiff’s deposition that he lied on his job application and never even graduated from high school (yes, this once happened to me). Few employment cases end up where you think they will when you start. The ability to course-correct is the hallmark of a winning case.

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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 podcast is now available from The Proactive Employer

Last Friday, I had the privilege of participating in a roundtable discussion on disability discrimination, hosted by Stephanie Thomas as part of her weekly Proactive Employer podcast series. I appeared with 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. We had an engaging discussion about the recruiting, hiring, and employment of disabled workers.

Stephanie recorded the conversation as a special one-hour installment of her weekly podcast. It is now available for download from Stephanie’s website. If you have an iPod or iPhone, you also subscribe to the podcast (on which I’ve now been a guest three times) via iTunes.

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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 #147 (the SCOTUS preview edition)

This week marked the beginning of the Supreme Court’s October 2010 term, which has three important employment cases on its docket.

• Kasten v. Saint-Gobain Performance Plastics, which will decide whether an oral complaint of a violation of the Fair Labor Standards Act qualifies for protection under that law’s anti-retaliation provision.

• Staub v. Proctor Hospital, which will decide the viability of the “cat’s paw” in discrimination cases—when may an employer be held liable based on the unlawful intent of employees who caused or influenced, but did not make, the ultimate employment decision.

• Thompson v. North American Stainless, which will decide the legal viability of “associational retaliation”—retaliation against one who engaged in no protected activity but is closely related to one who did.

The hyperlinks will take you to my previous thoughts on each of these cases. I’ve had a lot to say about Thompson, since it was a 6th Circuit case. I’ll have more to say on all of these cases after they are argued later this fall, and again after they are decided next year.

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

Discrimination & Litigation

• Bad Math = Bad Policy – from Stephanie Thomas’s The Proactive Employer

• A SAD Story In So Many Very Different Ways – from Michael Fox’s Jottings By An Employer’s Lawyer

• Why Men Matter in the Work-Life Debate – from The Glass Hammer

• Complaints about management style are not protected activity, per Sixth Circuit – from Sindy Warren at the Warren & Hays Employment Law Blog

• EEOC sues on obesity-as-disability theory – from Walter Olson’s Overlawyered

• One-third of U.S. Workers Still Have A Problem With Their Gay Co-workers – from Workplace Diva

• Prompt Action by Employer Nixes Racial Harassment Claim – from The Word on Employment Law with John Phillips

• Failure-to-Promote Not Covered by Ledbetter FPA - New Third Circuit Decision – from Philip Miles’s Lawffice Space

• Employment Discrimination Potpourri: It’s Hard Out Here for New Mothers and Large Women – from Abovethelaw

• EEOC Must Attempt Conciliation of Class-Wide Claims Before Litigating Them – from Employment Class Action Blog

• The Many Flavors of Retaliation – from Maryland Employment Law Developments

Social Networking & Technology

• Will Facebook’s New Download Feature Change E-Discovery on Social Networks? – from Daniel Schwartz’s Connecticut Employment Law Blog

• Lawyers: Gather Ye Text Messages While Ye May – from Law.com’s Inside Opinions: Legal Blogs

• Hot Off the Press: The Sedona Conference® Commentary on Proportionality in Electronic Discovery – from Electronic Discovery Law

• Materials from Social Media Policies – from Compliance Building

• Here’s Why You Don’t Really Need A Social Media Policy – from Lance Haun at TLNT

• N.Y. Ethics Opinion re: Social Networking – from Molly DiBianca’s Going Paperless

• Discretion Is the Better Part of Valor (and Cell Phone Usage) – from Adria Martinelli at the Delaware Employment Law Blog

• LinkedIn: A Violation of Your Employee’s Non-Compete? – from Trade Secrets & Non-Compete Blog

• First Step? Hire a Computer Forensics Expert – from Trade Secret / Noncompete Blog

• HR Tech 2010: “Social” Is Now HR’s Baby (Sorry, Marketing Department!) – from Fistful of Talent

• Don’t Facebook Me: Why You Shouldn’t Google During the Recruiting Process – from Laurie Ruettimann at TLNT

Privacy

• Do You Know Your HIPAA? – from CPEhr

• U.S. Supreme Court’s Decision in NASA Case Could Have Significant Implications for Private Employers – from Workplace Privacy Counsel

• Supreme Court Set to Hear NASA Background Check Case – from employeescreenIQ Blog

Trade Secrets & Non-Competes

• Maintaining Trade Secret Status For Customer Lists: Five Steps Every Company Can Take to Protect Customer Information – from Trade Secrets & Non-Compete Blog

• Top 5 Defenses to Non-Competes – from Rob Radcliff’s Smooth Transitions

• Trade Secrets of Pharmacies Allegedly Misappropriated By CVS Caremark – from Trade Secrets Blog

Wage & Hour

• Class Certification Denied Due to Dissimilarity In Putative “Class” The Way To Go! – from Wage & Hour - Development & Highlights

• Sixth Circuit’s FMLA Employer Reminders, Part One: Send the “Rights and Responsibilities” Notice – from Iowa Employer Law Blog

• Just Because You Sent a Message Does Not Excuse Your Lateness – from Michael Haberman’s HR Observations

Labor

• Non-Union Employee Has Standing to Seek Injunction Against Employer and Union Under Labor Management Relations Act – from Hunton Employment & Labor Law Perspectives™

• Pro-Company – from hrwhiz.com

• NLRB Acting General Counsel Announces Effort to Enhance Pursuit of 10(j) Injunctions in Discharge Cases – from Labor Relations Today

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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.

Firing by voicemail isn’t illegal, but…

Joyce Gaskins sued The Mentor Network-REM following her termination. REM’s cardinal sin that led to the filing of this lawsuit was that it notified Gaskins of her termination by voicemail. In short order, the court of appeals affirmed the trial court’s dismissal of Gaskins’s claim for intentional infliction of emotional distress:

Gaskins’s intentional infliction of emotional distress claim is based on the fact that REM terminated her via voicemail, which she argues is not standard procedure. This is simply not the sort of outrageous or egregious behavior contemplated for this intentional tort.

As this opinion illustrates, there is nothing illegal about terminating an employee by voicemail, email, text message, Facebook, Twitter, or the like. But, as this case also illustrates, employers nevertheless often pay a price for not treating terminated employees with decency. No matter the ills that led to Gaskins’s termination, she deserved to be told of her fate in person. Treating an employee poorly at termination might not be illegal, but it may lead to the bad feelings that cause lawsuits to be filed. It is not unheard of for a company to pay upwards of $50,000 to have even the most meritless employment disputes dismissed. How much is it worth to you to avoid the uncomfortableness of a face-to-face termination?

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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.

Shifting reasons for terminations could leave your business all wet

It only took the U.S. Ryder Cup team a few holes in the pouring rain Friday to realize that their rain suits were not as water-tight as they had hoped. Cold and wet, they had to resort to new gear bought off the rack from the merchandise tent. Thankfully for his team, Corey Pavin was able to take a do-over.

When you terminate an employee, though, you only get one shot. The reason you provide at the time of termination—whether communicated to the employee or merely internally documented—is the only reason that will matter in a subsequent discrimination lawsuit. If you try to change that reason down the road, you will open yourself up to a claim of pretext that could doom your defense.

For a textbook example of how shifting or changing rationales can sink your defense, I’ll leave you with Cicero v. Borg-Warner Automotive, Inc. (6th Cir. 2002). In that case, the employer provided three different reasons for the plaintiff’s termination—one at the time of firing, another in answering interrogatories, and yet another in responding to Cicero’s summary judgment motion. The court concluded that the changing explanations provided sufficient evidence of pretext from which a jury could infer discrimination:

An employer’s changing rationale for making an adverse employment decision can be evidence of pretext…. Shifting justifications over time calls the credibility of those justifications into question. By showing that the defendants’ justification for firing him changed over time, Cicero shows a genuine issue of fact that the defendants’ proffered reason was not only false, but that the falsity was a pretext for discrimination….

While the Court does not question business decisions, the Court does question a defendant’s proffered justification when it shifts over time. When the justification for an adverse employment action changes during litigation, that inconsistency raises an issue whether the proffered reason truly motivated the defendants’ decision.

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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? Expanded ADA may now cover obesity discrimination

The EEOC has sued a Pennsylvania-based nonprofit, claiming that its termination of a severely obese employee violated the ADA. Traditionally, obesity, in and of itself, is not a protected disability. I've previously discussed this issue. See Is “fat” the new protected class? The ADA, however, not only protected those with actual physical or mental impairments, but also those who are “regarded as” having a physical or mental impairment. Moreover, with the ADA’s recent amendments, one can qualify under the definition of “regarded as” disabled whether or not one’s real or perceived impairment actually limits or is perceived to limit a major life activity.

This story illustrates two important points for businesses:

1. The current iteration of the EEOC is aggressively pursuing judicial expansion of the employment discrimination laws. Grooming and dress policies, criminal background and credit checks, and expansive definitions of disabilities are all on the EEOC’s hit list. HR policies and practices that tread in these dangerous waters risk drowning in a sea of EEOC enforcement actions.

2. The ADA is now so broad that a fired employee may be able to make out a claim of disability discrimination based on obesity. Indeed, I predict that five years from now, businesses will be faced with a wealth of case law recognizing a host of non-traditional disabilities under the ADA. Every physical or mental impairment that a court recognizes as an ADA-protected disability is another impairment for which businesses much provide a reasonable accommodation. I believe, though, the the broader the ADA becomes, the more watered-down its message also becomes. Expanding the ADA to cover non-traditional disabilities undermines the important policy the ADA is meant to further—leveling the employment playing field for those with with real and legitimate substantially limiting impairments.

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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.

Off to see the Chamber, the wonderful Chamber of Commerce

Today, I am traveling to Columbus for the Ohio Chamber of Commerce’s Employment Law Committee meeting. For the uninitiated, the Ohio Chamber is our state’s voice for businesses and their policy interests. The Employment Law Committee tracks, dissects, and lobbies regarding employment-related legislation pending at the Statehouse. According to the agenda for our meeting [available as a pdf] we will discuss the following legislation:

• Protect the rights of employees to decide whether to be represented by a collective bargaining unit through a private ballot process.

• Reduce inconsistencies and duplication between state and federal employment laws.

• Push for a law that allows an employer to offer the existence of an anti-discrimination policy as an affirmative defense to a discrimination claim.

• Maintain the solvency of the state’s unemployment compensation trust fund by promoting measures that return unemployed workers to the workforce.

• Advance legislation that models the federal process for claims filed at the Ohio Civil Rights Commission.

Later this week, I’ll report specific items of interest discussed at the meeting.

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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.