WIRTW #153 (the redux edition)

Except for two huge stories (the failure of the Paycheck Fairness Act and on-going coverage of the NLRB’s complaint challenging a Connecticut company’s social media policy), it’s been a pretty quiet week.

For more on the Senatorial sinking of Paycheck Fairness, see Maryland Employment Law Developments, The Proactive Employer, Washington Labor & Employment Wire, Connecticut Employment Law Blog, Washington D.C. Employment Law Update, HR HQ, Colorado Employer's Law Blog, and the DOL’s Work in Progress blog (for a pro-employee viewpoint).

For more on the future legality of workplace social media policies, see The ChamberPost, Philip Miles’s Lawffice Space, HR Observations, New York Labor and Employment Law Report, The Labor and Employment Law Blog, Nolo’s Employment Law Blog, Delaware Employment Law Blog, Joe’s HR and Benefits Blog, Minnesota Labor & Employment Law Blog, TLNT, and Today's Workplace (for a pro-employee viewpoint).

Also this week, the EEOC issued a Q&A for small businesses on its GINA regulations, in addition to some background information on the regulations.

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

Social Networking

• Facebook Unfriending as Workplace Retaliation? – from Molly DiBianca at the Delaware Employment Law Blog

• Paula Berg: Turning Lemons into Lemonade: 11 Components of a Social Media Crisis Plan – from Huffington Post

• What You Can and Can’t Say - Room for Debate – from the New York Times

• IndustryWeek : Has Email Become a Dinosaur? Workforce Prefers Twittering – from industryweek.com

• Facebook account protected from disclosure in discovery, for now – from Internet Cases

Discrimination

• Is It Sexual Harassment to Require Employees to Submit to Pat-Down Searches that Involve Inappropriate Touching? – from Workplace Prof Blog

• Stray Remarks May Bolster Discrimination Claims In California – from Hunton Employment & Labor Law Perspectives™

• The Gender Wage Gap: If Employment Discrimination Isn’t the Reason, What Is? – from Daniel Schwartz’s Connecticut Employment Law Blog

• Stupid Manager Tricks: Sexual Harassment Edition – from Stephen Meyer’s HR Cafe

• Do you need insurance against employee lawsuits? – from dailyherald.com

• Ergonomics and Reasonable Accommodations – Part 1 – from Kiernan’s Corner: Preventive Law for Employers

Trade Secrets and Non-Compete Agreements

• How Non-Competes for Execs and Lebron James Are Linked – from Kris Dunn, The HR Capitalist

• Who Should Investigate Leaks of Proprietary Information? – from Trade Secret / Noncompete Blog

• Litigation Budgets in Non-Compete Cases – from Trade Secrets & Non-Compete Blog

Labor Relations

• Board to Revisit Dana Corp., Voluntary Recognition Bar – from Seth Borden’s Labor Relations Today

• New NLRB General Counsel Nips at Employers’ Heels Without EFCA – from EFCA & Labor Law Reform Blog

Employee Relations and HR

• Is it time for retailers to adopt a crowd management plan before Black Friday? from Business, Employment and Real Estate Law in Ohio

• Things Not to Say at Work – from Tom Crane’s San Antonio Employment Law Blog

• Expecting the unexpected – from Michigan Employment Law Connection

Wage & Hour

• FMLA FAQ - How do I calculate FMLA leave around the holidays? – from FMLA Insights

• Happy Thanksgiving! Turkey Processing Plant Workers Sue For Overtime – from Wage & Hour - Development & Highlights

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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 failure of the Paycheck Fairness Act ends the golden age of employment law

The Democrats swept into office in January 2009 with promises of paradigm-shifting labor and employment law reforms: card check union recognition, Title VII coverage for sexual orientation and gender identity, expanded FMLA coverage, the end of arbitration agreements, and paid sick leave are but a few of the campaign issues on which the Democrats won the the White House and substantial majorities in both halves of Congress.

Yesterday, the Senate failed to vote to close debate on the Paycheck Fairness Act. That vote, coupled with the incoming Republican majority in the House, means that we likely have seen the end of any significant employment law reforms by the Obama administration’s first (only?) term. The scorecard is stunning. The lone significant employment law legislation to become law under Obama’s watch is the Lilly Ledbetter Fair Pay Act, which, in and of itself, is not all that significant. It affects the timeliness of discrimination claims, and potentially exposes businesses to more lawsuits. Yet, if you ranked the various pieces of legislation discussed and debated over the last two years, Ledbetter would rank pretty low in terms of societal impact.

In comparison, President Bush passed three key pieces of employment legislation during his last year in office: the FMLA military leave amendments, the ADA amendments, and the Genetic Information Nondiscrimination Act. The significance of these three laws will be felt for years to come.

In early 2009, I joined the chorus of employment lawyers who believed that President Obama would change the landscape of labor and employment law. No one ever likes to be wrong. For the sake of American businesses, many of which are still trying to climb out of the worse recession in 80 years, I have never been so happy to have been off the mark.

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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.

Three steps to avoid a discriminatory hiring claim

Bartlett v. Gates (6th Cir. 11/16/10) [pdf] involved a plaintiff who claimed that he was passed over for a promotion because of his age and sex. The 6th Circuit Court of Appeals reversed a district court’s dismissal of the discrimination claims for the following three reasons:

1. The plaintiff was objectively as qualified as, if not more qualified than, the successful candidate. He had 24 years of experience as compared to eight. In addition, he possessed superior educational credentials, including a bachelor’s degree, whereas the successful candidate had not graduated from college. There was also some evidence of superior communication skills and job-specific work experience.

2. The hiring manager had not conducted any job interviews and lacked basic knowledge about the successful candidate. Despite the employer’s explanation that it had hired the best-qualified candidate for the position, the hiring manager was unable to describe her credentials. The hiring manager testified that she was able to making a hiring decision without holding any interviews because of her personal knowledge and familiarity with the job applicants’ experience, backgrounds, and competency. Yet, she did not know whether the successful candidate even had a prior experience related to the core functions of the job.

3. There was some direct evidence of discriminatory animus. The plaintiff’s supervisor and hiring manager made comments to and about the plaintiff such as informing him that his 34 years on the job were “enough,” joking about whether he had taken up “antiquing or traveling or something like that,” and suggesting that the plaintiff should retire.

What lessons can employers take away from this case to avoid a discriminatory hiring claim? Here’s three:

1. If you are not going to hire the most qualified person, at least know what you are getting yourself into. Perform a comparison of candidates, including their qualifications, relevant experience, and key demographics. Have objectively supportable reasons why you chose the 29-year-old over the 53-year-old.

2. Meet the candidates. When you whittle the field down to the final few, meet and interview them. Do not rely solely on paper. If you know the candidates, do not rely solely on past experience. Talk to them, avoid illegal questions, and form reasoned, objectively supportable pros and cons for each.

3. Finally, if you feel the need to make racial, sexist, or ageist comments in the months before and after a hiring decision, wait until you get home, make sure all your doors and windows are closed, and yell them into a pillow.

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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? 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.