Do you know? Post-employment retaliation

The typical retaliation scenario involves an employer firing an employee who complained about discrimination or engaged in some other protected activity. What happens, however, if the employer retaliates after the end of the employment relationship? Do the anti-retaliation laws reach these allegations of post-employment misconduct? The short answer is yes.

The logical place to start in deciphering this “yes” is with the statues themselves. Ohio’s anti-retaliation provision, O.R.C. 4112.02(I), makes it illegal

for any person to discriminate in any manner against any other person because that person has opposed any unlawful discriminatory practice defined in this section or because that person has made a charge, testified, assisted, or participated in any manner in any investigation, proceeding, or hearing under sections 4112.01 to 4112.07 of the Revised Code.

All of the federal anti-discrimination laws (Title VII, the ADEA, the ADA, and GINA) contain similar prohibitions. In Robinson v. Shell Oil Co. (1997), the U.S. Supreme Court concluded that the term “employees” in Title VII’s retaliation provision “includes former employees,” allowing an employee to “bring suit against his former employer for postemployment actions allegedly taken in retaliation.” Because of the similarity in language across the federal and state statutes, it’s safe to assume this result applies across the board.

What does this mean for employers? It means that retaliation does not stop on the last day of employment. It means that employers must treat ex-employees who have engaged in protected activity with the same kid gloves as current employees. And, it means that ex-employees can sue you for post-employment adverse actions such as:

• A negative job reference
• The filing of a lawsuit or counterclaim (with a large caveat)
• The denial of pension credits or other benefits to which the employee was entitled
• The filing of a law enforcement complaint
• Threats and ostracism

Just one more concept to build into your EEO training for your managers and supervisors.

What dryer drums have to do with unpaid wages (or, a scathing judicial indictment of class action lawsuits as extortion)

Thorogood v. Sears, Roebuck & Company (7th Cir. 11/2/10) [pdf] involves the attempted litigation of multiple class action lawsuits in different states over the issue of whether the advertising of a stainless steel dryer drum was deceptive. In brief, after a district court dismissed a class action lawsuit brought by Thorogood against Sears in Tennessee, the same lawyers filed a similar claim in California on behalf of a different plaintiff, Murray. The case caught my attention because of judge’s scathing indictment of class action lawsuits (I apologize for the long quote, but it is worth reading):

The class action is a worthwhile device for economizing on the expense of litigation and enabling small claims, illustrated by Thorogood’s claim, capped at $3,000, to be litigated at all (though when the claim is deceptive advertising, a proceeding before the Federal Trade Commission is a more economical alternative to a class action suit). But the device also lends itself to abuse. [C]lass members are interested in relief for the class but the lawyers are primarily interested in their fees, and the class members’ stakes in the litigation are ordinarily (and in the present case or cases) too small to motivate them to supervise the lawyers in an effort to align the lawyers’ incentives with their own…. Defendants, wanting to minimize the sum of the damages they pay the class and the fees they pay the class counsel, are willing to trade small damages for high attorneys’ fees…. These convergent incentives forge a community of interest between class counsel, who control the plaintiff’s side of the case, and the defendants, but may leave the class members out in the cold….

An additional asymmetry, also adverse to defendants, involves the cost of pretrial discovery in class actions. One purpose of discovery—improper and rarely acknowledged but pervasive—is: “it makes one’s opponent spend money.” … In most class action suits, including this one, there is far more evidence that plaintiffs may be able to discover in defendants’ records (including emails, the vast and ever-expanding volume of which has made the cost of discovery soar) than vice versa. For usually the defendants’ conduct is the focus of the litigation and it is in their records, generally much more extensive than the plaintiffs’ (especially when as in a consumer class action the plaintiffs are individuals rather than corporations or other institutions), that the plaintiffs will want to rummage in quest for smoking guns.

The merit of Murray’s case, like Thorogood’s, of which it is a close copy, is slight. But the pressure on Sears to settle on terms advantageous to its opponent will mount up if class counsel’s ambitious program of discovery is allowed to continue. A letter from Mark Boling, Murray’s co-counsel, to Sears’s counsel, printed at the end of this opinion, illustrates the point. The letter reminds Sears that discovery is proceeding and “will involve Plaintiff’s counsel delving into the full extent of Defendants’ alleged wrongdoing” in order to justify not only equitable relief but also punitive damages—which are potentially very large given the size of the class and the possible preclusive use of any judgments favorable to the plaintiffs in suits brought in other states. The letter continues: “as we progress through the various stages of this litigation, the cost of settlement will necessarily increase…. At this point, we may want to consider whether an appropriate olive branch for resolution can be mutually created on a class wide basis commensurate with the status of the case. If interested, please pick up the telephone and call me. In the meantime, Plaintiff will continue to diligently and timely prosecute this case to an appropriate result.” In other words, unless Sears settles now (implicitly for modest relief for the class and an agreement with class counsel to recommend to the judge generous fees for Krislov and Boling), it will incur the considerable cost of responding to class counsel’s distended project of “delving” and assume the risk of a very large adverse judgment. And as Boling’s letter also points out, “if plaintiff is successful on a motion for class certification, the court as the gate keeper will demand a more significant recovery for resolution.”

This scenario is not all that much more different than the standard wage and hour class action.

• Like the Sears example, employers in wage and hour class actions bear a disproportionately large share of time and expense in discovery. Employers have most, if not all, of the wage and hour records, many of which are archived and expensive to recover. Discovery of email exponentially adds to the discovery expense. These high costs bear heavily on an employer’s decision whether to settle or litigate a case.

• Like Sears, employers feel an inordinate pressure to settle these claims. The exposure in wage and hour lawsuits can be large (sometimes, even “bet the company” like exposure). The risk of high attorneys’ fees award only serves to exacerbate that pressure to settle. It is not a secret that claimants use that exposure to their advantage to leverage early resolutions.

• And, like the Federal Trade Commission in a consumer case, there exists a federal agency that can economically litigate a meritorious claim, the Department of Labor.

Now that we all know what dryer drums have in common with wages and hours, we can get back to defending class action lawsuits.

[Hat tip: PointofLaw.com]

WIRTW #152 (the Facebook firing edition)

Last week, I wrote about the NLRB’s complaint against a Connecticut company claiming that its social networking policy violated federal labor law. Since then, the story has exploded across the Internet, being picked up by the New York Times, the Wall Street Journal, Law.com, the ABA, CNN, ABC News, MSNBC, Fox News, NPR, and cnet, to name a few. The NLRB itself has even gotten in on the act, updating its own Facebook page to publicly discuss the issue (not to pre-decide the case or anything). It’s also been a popular topic across the blogosphere:

• Are Employee’s Facebook Posts Protected Activity? – from Delaware Employment Law Blog

• NLRB Alleges that Connecticut Company Illegally Fired Employee Over Comments on Facebook – from Connecticut Employment Law Blog

• How does the NLRB’s Facebook firing complaint relate to the struggle against workplace bullying? – from Minding the Workplace

• NLRB Files Complaint Against CT Employer for Firing Employee Over Facebook Postings – from Wisconsin Labor & Employment Law Blog

• More On American Medical Response -- a/k/a The “Facebook Firing” Case – from Labor Relations Today

• Is Bashing your Boss on Facebook Protected Activity? – from HR Lawyer’s Blog

• Employee Fired for Disparaging Her Boss on Facebook – from San Antonio Employment Law Blog

• When Are Facebook Updates a Firing Offense? – from HBR.org

• NLRB: Facebook Discussions Between Co-Workers are Protected Speech – from Work in Progress

• NLRB Issues Complaint Over Employee’s Posting on Facebook – from Wyatt Employment Law Report

• Case To Watch: NLRB Challenges Employer’s Termination of Employee Based on Violation of Social Media Policy – from Digital Workplace Blog

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

Discrimination

• Update: Teacher who allegedly branded cross onto student’s arm drops suit – from Walter Olson’s Overlawyered

• Non-sexual acts can support a sexual harassment claim – from Sindy Warren at the Warren & Hays Employment Law Blog

• Combating Stereotypes of Workers with Disabilities – from DOL’s Work in Progress

• Third Circuit Holds Ledbetter Fair Pay Act Does Not Save Untimely Failure-to-Promote Claims – from Pennsylvania Labor and Employment Blog

• Work-Life Balance: Men Want It, Too – from Work and Family Blog

• The role of incorrect perception in retaliation, hostile environment claims – from Work Matters

• ‘Zip It’ Doesn't Work When Firing Employees – from Case In Point

HR and Employee Relations

• Ethics Policies: You Got ‘Em – Now Flaunt ‘Em! – from Employment Essentials

• Maybe You Should Just Offer Reasonable Bereavement – from Evil HR Lady

• Telecommuting and HR – from Michael Haberman’s HR Observations

• 10 Things You Probably Don’t Want To Post On Facebook If You’re Looking For A Job – from fyiscreening.com

• HR Plays Too Much Defense – from Fistful of Talent

Litigation

• Satan No Obstacle to Settlement – from Philip Miles’s Lawffice Space

• Supreme Court Hears Arguments in Arbitration Preemption Case – from Washington D.C. Employment Law Update

• Workplace Prof Blog: Sternlight on theSCOTUS Class-Action Arbitration Case – from Workplace Prof Blog

• Court of Appeal: No Attorney Present at Plaintiff’s Mental Examination – from What’s New in Employment Law?

• Garbage Objections = Sanctions – from Resolving Discovery Disputes

• Twelve Ways To Alienate The Trial Judge – from Litigation, Evaluation and Trial Strategy Blog

Technology

• The Future of Human Resources and Social Media – from Mashable

• U.S. Loses Argument that the Computer Fraud & Abuse Act Applies to Employees Who Access Work Computers – from Trade Secrets & Non-Compete Blog

• Firesheep: A Wolf in Sheep's Clothing - Beware! – from Sharon Nelson’s Ride The Lightning

• What is the ABA Commission on Ethics 20/20 considering re law blogs? – from Real Lawyers Have Blogs

Wage & Hour

• GINA Rules Require New Disclosures In Requests For FMLA Certification – from FMLA Insights

• Sixth Circuit’s FMLA Reminders to Employers, Part Three: It Ain’t Over ‘Til It’s Over – from Iowa Employer Law Blog

• Overtime: It’s the Work, Not the Title That Matters – from The Word on Employment Law with John Phillips

• Another Interesting Development from Last Tuesday - $4 MDV for FLSA Retaliation – from Michael Fox’s Jottings By An Employer’s Lawyer

• Second Circuit Affirms Denial of Class Certification for Hertz Station Managers and Provides Guidance on FLSA Certification Standard – from Employment Class Action 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.

Court makes clear that an ADA reasonable accommodation does not require preferential treatment in filling open positions

In Garcia v. Whirlpool Corp. (N.D. Ohio 11/5/10) [pdf], the trial court dismissed a disability discrimination claim because the plaintiff agreed that the individuals hired into the open position for which she sought reassignment as a reasonable accommodation were more qualified.

Here are the facts. Garcia had a 10-year history of shoulder problems relating to workplace injuries suffered on a Whirlpool assembly line. After her third shoulder surgery, which did not correct the problem, her doctor informed her that she had reached maximum medical improvement. Accordingly, she could not return to her assembly line position.

Whirlpool had a job bidding procedure, in which hourly employees, like Garcia, could bid on open positions. Whirlpool’s policy and practice was to hire the most qualified candidate, which it generally considered to be the qualified employee with the most seniority. Garcia expressed interest in and applied for several administrative, salaried, or supervisory positions. Ultimately, all of her applications were unsuccessful. Whirlpool awarded the jobs to employees with prior management experience, prior job-specific experience, or a college degree.

Ultimately, Whirlpool fired Garcia pursuant to its medical leave policy, which allowed for a maximum of two years of leave.

The district court disagreed with Garcia that Whirlpool owed her a transfer to one of the open positions as a reasonable accommodation. While the ADA requires an employer to consider reassignment to a vacant position if the disabled employee cannot be reasonably accommodated in his or her current job, it does not require a promotion as a reasonable accommodation. Thus, because none of the jobs for which Garcia applied were comparable to her assembly line job, and many would have been promotions, she could not prove that she was qualified to work with a reasonable accommodation.

Additionally, Whirlpool was entitled to fill the vacancies by following its internal policy and bidding procedure to hire the most qualified candidates. The court made it clear —at least in the 6th circuit and majority of other circuits—that the ADA does not mandate preferential treatment:

[T]he ADA does not impose a mandatory obligation to reassign the disabled employee where the employer has a policy of awarding the transfer position to the most qualified candidate, and the employer would be required to turn away a superior candidate.

Because Garcia could not contest that the individuals Whirlpool hired were more qualified, her ADA claim failed.

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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.

The 5 most interesting things about GINA

To have Gina, Gina all for my very own
It’s much too wonderful, so very wonderful
To know that Gina is mine alone
 – Gina, Johnny Mathis

Yesterday, the EEOC published the long-awaited regulations to the employment provisions of GINA [pdf], the Genetic Information Nondiscrimination Act. According to the EEOC, GINA has 4 stated purposes:

1. To prohibit the use of genetic information in employment decisions;
2. To restrict employers and others from requesting, requiring, or purchasing genetic information;
3. To require that employers maintain genetic information as a confidential medical record, with strict limits on disclosure; and
4. To provide remedies for individuals whose genetic information is acquired, used, or disclosed in violation of the Act. 

After taking a day to digest these regulations, here’s what I found to be the 5 most interesting things the regulations provide:

1. GINA does not just cover employees’ genetic information. It also covers the genetic information of relations as attenuated as great-great-grandparents, great-great-grandchildren, and first cousins once-removed (the children of first cousins).

2. GINA is intended to be a broad anti-discrimination statute. It not only prohibits discrimination against employees on the basis of genetic information in hiring, firing, compensation, terms, conditions, or privileges of employment, but also harassment on the basis of genetic information, and retaliation where an individual opposes any act made unlawful by GINA, files a charge of discrimination or assists another in doing so, or gives testimony in connection with a charge.

3. GINA’s prohibition against the request of genetic information about an employee or family member includes Internet searches in a way that is likely to result in obtaining genetic information, even if the information is publicly available. However, if an employer “inadvertently learns genetic information from a social media platform which he or she was given permission to access by the creator of the profile at issue” (such as an employee who posts family medical history on his Facebook wall, and his supervisor, with whom he is a Facebook friend, sees it), GINA has not been violated. Employers are similarly protected for genetic information employees inadvertently disclose during casual “water cooler” conversations.

4. GINA permits employers to obtain genetic information as part of employer-provided health or genetic services, such as voluntary wellness programs. While the regulation do not define “voluntary,” they do provide that employers can offer certain financial incentives to employees without stripping the wellness program of its voluntariness.

5. GINA requires that employers keep all genetic information confidential, stored in separately maintained confidential medical files, consistent with the medical information storage obligations of the ADA. There is, however, a grandfather provision for genetic information obtained before November 21, 2009. Employers need not strip that information from non-confidential files.

As I noted above, there has been a lot of coverage around the blawgs about these regulations. If you are looking for more information and analysis on GINA’s regulations, I recommend the following:

• EEOC Issues Final GINA Regulations – from Washington D.C. Employment Law Update (the most comprehensive summary I’ve seen)
• Social Media and GINA – from Philip Miles’s Lawffice Space
• Final GINA Regulations (Finally!) Published: Addresses Treatment of Acquisition of Genetic Information Via Social Media – from the Social Networking Law Blog
• Finally, EEOC Issues Final GINA Regs – from Kiernan’s Corner: Preventive Law for Employers
• EEOC Issues Final GINA Regulations – from the Iowa Employer Law Blog
• EEOC Issues Final GINA Regulations for Employers – from the Delaware Employment Law Blog
• EEOC Issues Final GINA Regulations – from Human Resources News
• Final GINA Regulations Address Online Searches, Wellness Programs, and More – from Nolo’s Employment Law Blog
• Final GINA Regulations Published: Impact in Connecticut Still Unclear – from Dan Schwartz’s Connecticut Employment Law Blog

In the face of these regulations, expect to see genetic discrimination claims as a growing trend in 2011.

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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? FMLA & bereavement leave (or, what to do when a supervisors calls an unauthorized leave request “cool”)

The FMLA covers a lot of family emergencies. Death, however, is not one of them. There is no situation in which the FMLA, on its face, provides for a leave of absence for bereavement. Lots of employers allow for bereavement leave for lots of situations, but it is not required by the FMLA.

That is, it is not required by the FMLA unless you promise otherwise. In Murphy v. FedEx National (8th Cir. 8/26/10), an employee sought and received FMLA leave to care for her hospitalized husband. When he died a week later, she took three days’ bereavement leave. Thereafter, she told her supervisor she needed 30 more days to “take care of things.” The supervisor responded, “OK, cool, not a problem, I’ll let HR know.” As it turns out, the extra 30 days was a problem for HR, which denied the request and terminated the employee, who had not returned to work.

The 8th Circuit was not all that sympathetic to FedEx’s claim that Murphy didn’t qualify for FMLA leave. The court focused on the supervisor’s statement, “OK, cool, not a problem, I’ll let HR know.” It concluded that one could easily interpret that statement to be an approval of the request for leave.

This is known as coverage by estoppel. While the FMLA does not cover bereavement leave, an employer’s representation, on which an employee reasonably relies to his or her detriment, will create coverage under the statute. In other words, if an employee, based on all the facts the circumstances, reasonably believes that the employer approved the FMLA leave, the employer cannot deny the leave request.

How do you avoid situations like these from cropping up in your workplace? You cannot require all leave requests be in writing, but there are certain steps you can take.

1. Train all managers and supervisors on the minutia of your leave policies. Anyone with any authority of any kind over employees must know what leave is authorized and what is not.
2. Require that all leave requests of any kind go through a designated central person or persons, like an HR manager.
3. Place a statement in your handbook that only leave granted by that central person or persons is authorized, and that no one else within the company has the authority or discretion to grant a leave of absence of any kind. That way, even if a supervisor tells an employee that leave is “cool,” it will not be reasonable for her to rely on that statement.

Do you want to read more on coverage by estoppel?

• Court adopts no-harm, no-foul approach to employer misstatements about FMLA coverage
• Don’t estop yourself into coverage
• Mind your (mis)representations
• Sixth Circuit holds that estoppel can bind a small employer to provide COBRA coverage

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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.

Are businesses cracking down on bandwidth?

I cannot work in silence. I never could, and I likely never will be able to. In high school, I did all my homework with the stereo blaring in my bedroom. In college, I studied in the common area of my dorm, with activity buzzing all around. And in law school, the student lounge was my study area. So, it comes as no surprise to me that I’ve never been able to practice law in silence either. These days, it’s either my iPod, or XM radio streaming through my desktop. The latter, however, is a bandwidth hog. Do the math. If you multiply me times a few dozen employees (or a few hundred, or a few thousand, depending on the size of the organization), it’s no surprise that corporate networks are being strained.

It’s also no surprise that employers are starting to fight back. According to the Silicon Valley Mercury News, Lockheed Martin Aeronautics announced to its employees that it would begin blocking music-streaming sites, online radio stations and gaming sites, and sites that stream sports and entertainment audio or video. Lockheed estimates that these recreational uses consumed up to 10% of its Internet bandwidth.

Decisions such as those taken by Lockheed are difficult ones. It’s often a struggle to balance corporate resources and employee morale. There is no right or wrong answer. You could frame the dilemma simply as “more bandwidth costs more money, ergo, bandwidth restrictions.” Or, you believe that happy employees are more productive employees, and determine that what you spend in extra bandwidth you will recoup in added productivity. Or, you can act like the HR manager in Dilbert and reward serious offenders by promoting them.

Bottom line – businesses need to make decisions about the appropriate allocation and use of bandwidth, and incorporate that decision into a workplace technology policy that sets out the dos and don’ts of workplace Internet use.

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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.