WIRTW #149 (the work / family edition)

October is National Work & Family Month. In it’s honor, I bring you three posts I read this week celebrating this cause:

• European MPs Vote to Extend Maternity Leave – from Workplace Prof Blog

• The Top Five Issues Affecting Working Families Today – from Work and Family Blog

• Is There More to the Story About the New Mom Who Quit Her Job Because She Was Denied Access to a Lactation Room? – from Patrick Smith’s Iowa Employment Law Blog

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

Discrimination

• EEOC Holds Public Hearing on Use of Credit Reports for Hiring – from Dan Schwartz’s Connecticut Employment Law Blog

• Employment Credit Reports Have Value: I Hope the EEOC Listened – from employeescreenIQ Blog

• Credit Checks: Yes or No? – from Michael Haberman’s HR Observations

• Extraterrestrial Employment Law – from Stephanie Thomas’s The Proactive Employer

• ADA accommodation: How supervisors can navigate the gray zone – from Stephen Meyer’s HR Cafe

• Recent Lawsuit Reminds Employers: You May Be Liable For Non-Employee Harassment – from Hunton Employment & Labor Law Perspectives™

• Meet GINA Before You're Introduced in Court – from Employment Essentials

• Religious Discrimination Complaints On the Rise at Work – from Courtney Rubin at Inc.com

• Obesity Under the ADA - EEOC Files Suit – from Philip Miles’s Lawffice Space

Workplace Technology & Social Networking

• Controlling Workplace Language is a Real Concern – from Digital Workplace Blog

• Too Much Information: When Social Media Spills Into The Workplace – from Lance Haun at TLNT

• Legal Ethics and The Social Network – from Social Media Law Update

• Take-Aways from the Navy’s Social-Media Handbook – from Molly DiBianca at the Delaware Employment Law Blog

• Social Media Update II from Fitzpatrick on Employment Law

• Seven Steps to Managing Your Online Reputation – from You’re the Boss Blog

• Fullbright’s 7th Annual Litigation Trends Survey – from Sharon Nelson’s Ride The Lightning

• Your touchscreen phone is a petri dish – from Boy Genius Report

• New Jersey Appellate Court: Lawyers Can Google Jurors – from Molly DiBianca’s Going Paperless

• Workers hogging bandwidth for personal use – from Barry Shlachter at the Columbus Dispatch

Wage & Hour

• A Brief Refresher on the Reemployment Rights of Veterans Under USERRA – from WorkplaceHorizons

• Coffee Breaks? Meal Breaks? Smoke breaks? What Is Required By Law? – from Minnesota Labor & Employment Law Blog

• Personal Liability Under The FLSA: The Issue Of Contro – from Wage & Hour - Development & Highlights

• Happy 72nd Birthday, FLSA - Time For An Overhaul – from Jennifer Gokenbach’s Colorado Employer's Law Blog

• Argument Recap: Court seeks clarity on what counts as a “complaint” under the Fair Labor Standards Act – from SCOTUSblog

• Conflicting Fitness for Duty Reports Preclude Retaliation Claim from FMLA Insights

HR & Employee Relations

• Putting Me and Other Employer’s Lawyers Out of Work – from Michael Fox’s Jottings By An Employer’s Lawyer

• What if we applied the Golden Rule at work? – from David Yamada’s Minding the Workplace

• Poppy seed bagels and false positive drug tests – from Walter Olson’s Overlawyered

• Getting a sense of a corporation’s culture: the job of every investigator (or, ruminations during a 7 hour layover in Dallas) – from Sindy Warren at the Warren & Hays Employment Law Blog

• Evidence Employees Are MORE SATISFIED With Their Bosses: Why It May Be So – from Bob Sutton

• Suggestions and Links for Creating or Updating Employee Handbooks – from George's Employment Blawg

• Dogs at Work – from Nolo’s Employment Law Blog

• Is a Policy Still a Policy if It's Not in Writing? – from Mindy Chapman’s Case In Point

Labor Relations

• “Card Checkmate” – from The ChamberPost

• Company Needs vs. Employee Wants—Guess Who Wins? – from RJ Morris at Fistful of Talent

• Unions, Recognition and Employee Engagement – from Derek Irvine at Compensation Cafe

Non-Competes & Trade Secrets

• Reducing the Risk of Litigation When Hiring Employees with Non-Compete Agreements – from Delaware Non-Compete Law Blog

• Jasmine v. Marvell: Remember To Hang Up Your Telephone After You Leave A Voicemail Message (Oh, And Don't Admit IP Theft Over The Telephone Either) – from Trading Secrets

• Hiring From the Competition – from Trade Secret / Noncompete Blog

• Conspiracy Theory: Employees Conspire to Breach Non-Competes or Steal Trade Secrets – from Trade Secrets & Non-Compete 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.

EEOC holds public hearing on credit histories and employee selection criteria

Yesterday, the EEOC held a public hearing on the use of credit histories as selection criteria in employment. It heard testimony from representatives of the National Consumer Law Center, Lawyers’ Committee for Civil Rights Under Law, the National Council of Negro Women, the U.S. Chamber of Commerce, and the Society of Human Resources Management, in addition to lawyers and psychologists. Following the hearing, the EEOC posted a press release summarizing the testimony. It has also posted the prepared remarks of the people testifying. 
Kudos to the EEOC for presenting a balanced panel of representatives of both employee interests and business interests, even though it is trying to further an agenda against the use of credit histories in employment. Sara Murray, reporting at the Wall Street Journal, synthesizes the core debate between employee advocates the business advocates on this issue:

The underlying concern is that poor credit could become a barrier to landing a job. Employers contend credit checks help them evaluate candidates and protect against fraud. Another concern is the potential discriminatory impact on hiring…. Opponents of the practice cite studies showing that African-Americans and Latinos tend to have lower credit scores. They also dispute whether credit reports are an accurate way to measure an employee’s qualifications.
Proponents of credit checks, which include fraud examiners and credit-reporting groups as well as employers, contend the histories are an important screening tool for employers and tend to be used sparingly…. Michael Eastman, an executive director at the U.S. Chamber of Commerce, told the EEOC that employers take individuals’ circumstances into account. Many at the hearing stressed that employers look for a pattern of careless financial behavior, not one-time events. “It’s very easy for the best, well-intentioned people to have very difficult times,” he said. “Employers recognize that.” Credit checks can also be used as a tool to protect businesses against fraud, supporters argue.

Blanket prohibitions on any practice are usually not a good idea. In this area, there are good reasons to allow the use of credit checks for job candidates. Consider the following, cited during yesterday’s EEOC testimony by Christine Walters of the Society for Human Resource Management and Pamela Devata of Seyfarth Shaw:

• While 60% of employers use credit checks to vet job candidates, only 7.8% use them for all candidates.
  
• Employers generally conduct credit checks when the information is relevant to the particular position: jobs with financial or fiduciary responsibilities (91% of employers), senior executives (46%), and jobs with access to confidential employee information (34%).
  
• Employers do not use credit checks to screen out applicants before they can even get in the door. 57% of businesses only initiate credit checks after a contingent offer, and another 30% only after the job interview.
  
• Credit checks can help protect against employee theft and fraud. In 44.7% of cases of employee fraud, the perpetrators were experiencing financial difficulties, and in 44.6% of cases they were living beyond their means.
  
• According to credit report provider Experian, employers never see credit scores. However, most of the research on the disparities in credit histories between racial groups is based on those scores. It is unfair to hold employers accountable for the scores they never see.
  

Additionally, it is not as if employees are without protections when employers seek to use credit histories in employment decisions. There is an entire federal statute— the Fair Credit Reporting Act—that provides myriad hoops for employers to jump through before and after using credit information. It also requires that employees give their consent before an employer can even request a credit history. And, Title VII prohibits the discriminatory use of credit histories. To per se prohibit employers from using information that is relevant to many positions simply does not make sense from a business perspective, and HR perspective, or an EEO perspective.

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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.

I wonder if these kids will need extra harassment training when they grow up?

Seen yesterday at AT&T Park, as photographed by The700Level.com:

Better sign these kids up now for the anti-harassment power course when they enter the workforce.

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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? Litigating disputes in court does not always make business sense

I believe that litigation is the worst possible way to settle disputes. This may come as a shock, considering that I am a litigator and trial lawyer. Consider, however, that when you decide to litigate, you resolve to pay me six figures for the following: to prepare and respond to discovery requests, produce and review documents, prepare for, take, and defend depositions, draft and respond to motions, and prepare for a trial that has less than a 5% chance of ever occurring. You also resolve to have years of your life and the lives of your employees sucked up by document productions, depositions, reviews of letters, pleadings, and motions, and court appearances. All the while, I’m also dealing with obstreperous opposing counsel (which drives up your cost even more) and an over-taxed court system that likely lacks the time, resources, and manpower your case deserves. In other words, in many cases you are tossing good money after bad. It’s my job to appropriately counsel you so that does not happen.

There are lots of cases that have to be litigated to be resolved. A (small) percentage of them will even need the wisdom of a jury of our peers to conclude. When a plaintiff makes a settlement demand many times in excess of what it will cost you defend the case, litigation makes sense. When the future of your business hinges on an outcome (such as a key employee’s theft of trade secrets), litigation makes sense. When an employee did something horrifically wrong causing the termination, and you cannot in good judgment pay that employee any amount of money, litigation makes sense.

Litigating on principle, though, is not preferred. When ex-employee accuses you of bigotry by suing you for discrimination, your natural inclination is to roll up your sleeves and fight to defend your name. In many cases, that inclination is wrong. You are running a business, and litigation should be treated as a business decision, not an emotional decision. Emotional decisions cost money, and end up as headlines in your local newspaper.

Steve Strauss, writing at USAToday.com, offers businesses this advice: “Not every dispute is a litigation-worthy dispute. Even in the best of cases, you should think that your odds of winning are 50-50. The judge may say yes, or she may say no. The jury may find in your favor, or not. It's 50-50. Of course some suits are better than others, but you just never know what a judge or jury will do.” He is right when he says when you litigate “you are playing with fire and if you are not careful, you will get burned.” Keep these ideas in mind in your next employment dispute. They will lead to a reasoned business decision, not an emotional one.

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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.

Interesting data in latest litigation trends survey

Law firm Fulbright & Jaworski has released its 6th annual Litigation Trends survey (you can also read my thoughts on the 2009 survey and 2008 survey). This year's survey of 275 U.S. companies of various sizes and industries has some interesting findings:

• More than 25% of those surveyed expect the number of disputes their companies face to increase in the next 12 months, while only 6% foresee a decrease.
• 40% of U.S. respondents cite the poor economy as the reason for the expected increase in litigation next year.
• 49% of respondents had labor and employment litigation pending in 2010, up from 45% in 2009.
• Yet, employment cases of various types either increased at a slower pace in 2010 as compared to 2009.

These statistics are the opposite of what one would expect in a down economy that is trying to rebound. Race, sex, age, disability, and religious discrimination cases all slowed in 2010. Yet, most respondents expect discrimination cases to increase in 2011. 

It's hard to know what to make of these results. On the one hand, one would expect the pace of employment litigation to pick up in a down economy. On the other hand, it could simply be that the economy, and its effect on jobs, was worse last year than this year. Or, maybe 275 companies is too small of a sample to be truly predictive of what's happening in corporate America. Regardless, it is foreboding that businesses almost unanimously see the pace of litigation either quickening or staying the same in 2011. In other words, I'm sure I'll have plenty to write about in the coming year.

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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 #148 (the “people sue for the darndest things” edition

Three stories caught my eye this week: Lawsuit of the Day: Pass the Wooden Dildo, Please (via Abovethelaw.com), Gay Skydiving Instructor Sues Over Firing (via Legal Blog Watch), and “Chocolate Delicious” and Man-on-Man Harassment (via Philip Miles’s Lawffice Space). If those headlines don’t garner clicks, none will.

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

SCOTUS

• Supreme Court Watch: Part 1, Part 2, and Part 3 – from Maribeth Minella at the Delaware Employment Law Blog

• SCOTUS: Is an oral complaint protected conduct under FLSA’s anti-retaliation provision? – from LawMemo Employment Law Blog

• Argument preview: The Fair Labor Standards Act and oral complaints – from SCOTUSblog

• Supreme Court to Hear Three Employment Cases This Term – from Patrick Smith’s Iowa Employment Law Blog

• U.S. Supreme Court Refuses to Hear Donning and Doffing Case – from Wage & Hour Counsel

Family Responsibility

• Being a great dad – it’s all in the definition – from Rob Schwartz’s Fairness Matters

• Employee Entitled to Maintain Lawsuit for Interference with FMLA Rights Even though Employer Granted All FMLA Leave Requested – from The FMLA Blog

• How Employers Can Minimize the Risk of Family Responsibilities Discrimination (FRD): Developing a Prevention Plan – from George Lenard’s George’s Employment Blawg

• Family Friendly Workplace? When the Sh!t Hits The Fan – from Tanya Barham at Fistful of Talent

• FMLA FAQ - Can an employee fill out his own medical certification? – from FMLA Insights

• Deathbed Emails - Is There a “Sick Day” Double Standard? – from Wayne Turmel at bnet

Discrimination

• The “Commonsense” Bill and Its Nonsensical Implications – from Stephanie Thomas’s Compensation Cafe

• Steps an employer should take to reduce the possibility of sexual harassment occurring in their workplace – from Employment Law Bits

• Drunk — and Disabled? – from The Word on Employment Law with John Phillips

• EEOC to Hold Meeting on the Use of Credit History as Employment Screening Device from Washington D.C. Employment Law Update

• Obesity - Physical characteristic or physical impairment – from GT LE Blog

• $2 Million Jury Verdict Against a Wisconsin School District For Violating the ADAAA – from Minnesota Labor & Employment Law Blog

• Record ADA claims should wake up employers – from Jane Lewis Volk at the Pittsburgh Post-Gazette

Litigation

• Sleight of hand and litigation statistics – from Walter Olson’s Overlawyered

• 2010 Fulbright Litigation Trends Survey Shows Increase In Employment Litigation – from Laconic Law Blog

• “The onslaught of wage and hour litigation continues unabated” – how will you protect yourself? – from CPEhr’s Small Biz HR Blog

Trade Secrets & Non-Competes

• Coaches & Non-Competes – from Rob Radcliff’s Smooth Transitions

• Blog post violated nonsolicitation clause in Amway agreement – from Evan Brown’s Internet Cases

• Garden Leave as Consideration for a Non-Compete? – from Trade Secrets & Non-Compete Blog

• Bank of America Sues Ex-Programmer for Trade Secret Theft – from Trade Secrets Blog

• To Poach or Not to Poach: Now a Federal Question? – from Trade Secret / Noncompete Blog

HR

• How Not to RIF – from Workplace Prof Blog

• 20 Common HR Metrics & Their Formulas – from Where Great Workplaces Start

• Interviewing the hostile witness – from Stephen Meyer’s HR Cafe

• Low-Tech Monitoring of Employees Can Result In Employer Liability from Employer Law Report

Miscellaneous

• Social Media Now More Popular E-Mail on Mobile Devices vmashable.com

• NLRB ABCs – from Manpower Employment Blawg

• Employers should confirm their I-9 verification policies and systems are working properly – from Ryan Rivchun’s Business, Employment and Real Estate Law in Ohio

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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 FLSA’s anti-retaliation provision cover oral complaints? The Kasten v. Saint-Gobain oral argument

Yesterday, the U.S. Supreme Court heard oral argument in Kasten v. Saint-Gobain Performance Plastics (transcript available from Supreme Court’s website), which asks the following question: Is an oral complaint of a violation of the Fair Labor Standards Act protected conduct under the anti-retaliation provision, 29 U.S.C. § 215(a)(3)?

By way of background, the 7th Circuit held that the FLSA’s anti-retaliation provision—which provides that an employer cannot “discharge or in any other manner discriminate against any employee because such employee has filed any complaint”—covers intra-company complaints, but they must be in writing: “[T]he natural understanding of the phrase ‘file any complaint’ requires the submission of some writing to an employer….” In comparison to Title VII’s anti-retaliation provision—which broadly covers any employee who “opposed” any unlawful practice—the FLSA narrowly requires that employees file a complaint for coverage. Thus, Kasten will likely come down to the issue of whether making an oral complaint is considered a filing.

The plaintiffs’ bar may hold out hope that the Roberts Court, which has favored retaliation claims in the past, will extend the FLSA’s narrow language to cover oral complaints. Based on yesterday’s oral argument, I would not hold out much hope for a reversal. The liberal wing of the Court was concerned about the ability of immigrants and low-wage workers to enforce their rights through effective written complaints. But, even Justices Breyer and Sotomayor expressed concerned about an employee who, at a cocktail party, sees a supervisor and complains of a wage-and-hour violation.

The following exchange (which was the best of the argument), likely is the lynchpin to the decision:

     Justice Scalia: My problem is, I cannot decide on -- on the question of whether filing means filing only in writing or also includes verbal filing, without resolving that other question. That is to say, if indeed the complaint has to be quote, “filed” with the government, I’m inclined to think that an oral complaint pursuant to procedures established by the agency which permit an oral complaint, even a complaint by telephone that would be okay.

     But my goodness, if it applies to private employers as well including employers that have no grievance procedures, including employers who have employees who go to cocktail parties, I am -- I am very disinclined to think that it -- that it could mean an oral complaint in -- in that context….

     Justice Sotomayor: What does file -- what is the meaning of “filed”?

     A: It means to submit or lodge.

     Justice Scalia: So you are filing your argument right now. Now come on, people don't talk like that…. That -- that -- that is absurd. You are not filing an argument right now. Nobody uses the language that way….

     Justice Kennedy: I would like to go back to the question Justice Scalia filed just earlier.

Reading the tea leaves, I predict a win for the employer based on the narrow language of the FLSA’s anti-retaliation provision. I also expect a strongly-worded dissent based on the policy implications for workers incapable of making effective written complaints.

For more coverage of the Kasten oral argument, I recommend the insightful thoughts of Paul Secunda at the Workplace Prof 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.