BREAKING NEWS: Supreme Court agrees to hear appeal in Dukes v. Wal-Mart

This morning, the Supreme Court agreed to hear the appeal of the class certification of the largest employment discrimination lawsuit ever filed in this country, Dukes v. Wal-Mart. Greg Stohr at Bloomberg News provides details. You can also read my previous thoughts on this historic appeal.

This appeal will not only impact the more than 1.5 million potential class members who seek billions of dollars in damages, but it also has the potential to shape the future of employment class action litigation for years to come. Keep watching this blog for future updates on the landmark Dukes case as it continues to wind its way through the Supreme Court.

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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.

Ohio democrats look to go down swinging

In boxing its called a puncher’s chance. As long as you’re on your feet, you always have a chance to knock out the other guy. You might get knocked around for 11 rounds, but as long as you can throw a solid punch in the 12th, you can always win the fight.

This is what the democrats in the Ohio House are trying to do. In last month’s election, the republican tide swept away their control of Ohio’s House. Next month, their half of Ohio’s legislature, along with the Governor’s mansion, will join Ohio’s Senate as republican-controlled. On their way out, the current House majority is going down swinging.

Tomorrow, the Ohio House will hear testimony, and possibly vote, on three long-standing pieces of legislation:

• HB 470 – which would create a new protected class for people who smoke tobacco. For my prior thoughts on this bill, see Bill seeks to snuff out discrimination against smokers.

• HB 488 – which would create a new protected class for women who are lactating, in addition to requiring that employers provide lactating employees reasonable, unpaid time each day to permit the expression of breast milk. I’ve also previously written about this legislation. Because of the recent federal mandate for workplace lactation breaks, this legislation is irrelevant.

• HB 523 – which would create a uniform definition of “employee” in Ohio’s minimum wage, wage payment, and workers’ compensation laws. This statute would broadly define an “employee” as “an individual who performs services for compensation for an employer.” Critically, it presumes anyone who falls under this broad definition is an “employee” and would require the employer to prove otherwise. It also creates a stringent enforcement scheme, which includes a private cause of action, civil penalties, and criminal penalties for misclassifications. Of these three pieces of legislation up for consideration, this is the most significant and has the widest implications for Ohio businesses.

Unlike the weary, late-round boxer, the Ohio democrats have no chance of winning any of these battles. They could win the round by passing one or more these bills, but each would certainly die in the republican-controlled Senate.

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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 #155 (the two-drink-maximum edition)

I was not the only one this week commenting on the legal risks of office holiday parties:

• The Office Holiday Party - Alcohol-Induced Stupidity Can Lead to Serious Sexual Harassment Claims – from Daniel Schwartz’s Connecticut Employment Law Blog

• How To Avoid Holiday Party Pitfalls (and Liability) – from World of Work

• Your Career: Surviving the office holiday party – from msnbc.com

• Time to Get Your “Drink On” at the Office Holiday Party! – from Fistful of Talent

• Behave at Office Holiday Parties – from Lawyerist

If you’re planning on voting for me at the ABA’s Blawg 100, please do so before you indulge too much at your office party and forget to vote at all.

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

Discrimination

• The FMLA, the ADA and retaliation – from Michael Maslanka’s Work Matters

• 3d Circuit: Untimely Failure-to-Promote Claim Is Not Saved by Ledbetter Fair Pay Act – from Molly DiBianca’s Delaware Employment Law Blog

• Supreme Court May Clarify Use Of “Me Too” Evidence Of Employment Discrimination – from Hunton Employment & Labor Law Perspectives™

• A Room with a View – The Costly Consequences of Ignoring a Small Request for Accommodation – from Wyatt Employment Law Report

• Employers and the newly expanded ADA – from Overlawyered

• Record Gender Discrimination Class Action Settlement And Fee Award Given Final Approval – from Workplace Class Action Litigation

• I’m Harassed By Your Affairs With Others: A New Legal Threat Emerges (Gender Plus)... – from Kris Dunn, The HR Capitalist

• Lawsuit Alleges Hiring Discrimination Due to Credit Background Checks – from employeescreenIQ Blog

• 10 Tips For Avoiding GINA Violations – from Workplace Privacy Counsel

• Disparate Impact Suit - Credit Checks – from Michael Fox’s Jottings By An Employer’s Lawyer

• Documentation is Key to Surviving OFCCP Audit – from New York Labor and Employment Law Report

• BIG LIES: “The check's in the mail,” and “I can fire you for a good, bad, or no reason” – from Employment and Labor Insider

• Job Descriptions and the ADA: Are Those ‘Essential Functions’ Really Essential? – from Case In Point

• Combining Romance and Work, Can Lead to Demotion or Even Termination From Employment – from Minnesota Labor & Employment Law Blog

Wage & Hour

• Wal-Mart Stores v. Dukes: Will SCOTUS grant certiorari? – from LawMemo Employment Law Blog

• Workplace Flexibility and the Military – from Workplace Prof Blog

• Verizon FMLA settlement may exceed $6 million – from The FMLA Blog

• Steeped-Up Independent Contractor Enforcement Initiatives Coming Down The Pike Full Steam – from Wage & Hour - Development & Highlights

• ESPN Zone Closure Prompts Lawsuit by Laid Off Workers – from Maryland Employment Law Developments

• You Be The Judge: Did the boss or the worker close FMLA door? – from HR Cafe

• Leon Rodriguez to Be Nominated for the Top Job at the Wage and Hour Division – from Wage & Hour Counsel

DOL/ABA Partnership

• The DOL’s Holiday Gift for the Plaintiff’s Bar – from FMLA Insights

• DOL/ABA Lawyer-Referral Program Threatens More FLSA Litigation – from Wage and Hour Laws Blog

• USDOL + ABA = Trouble? – from HR Observations

• DOL-Private Bar Collaboration for Workers with Employment Complaints – from EFCA & Labor Law Reform Blog

• The DOL’s Lawyer Referral Arrangement with ABA Not Likely to Help Employers or Employees – from Iowa Employment Law Blog

• White House Task Force Announces DOL-ABA Partnership to Facilitate Wage and Hour Challenges – from Washington D.C. Employment Law Update

Social Networking & Technology

• When the iPad Is the Only Computer Your Employees Need—or Want – from BusinessWeek

• When It Comes To Smartphones, Employers Better Watch Out – from Workplace Diva

• Blackberries, iPhones and Androids: Do SmartPhones Belong in Meetings? – from Suzanne Lucas, “The Evil HR Lady,” writing at bNet

• “Cyber Monday”: Myth Or Must-Day For Online Shopping? – from NPR

• Managing the Workplace in the Age of Social Media – from CPEhr

• How Grinchy Should Employers Be About Online Shopping? – from Manpower Employment Blawg

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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.

A few thoughts on background checks

The New York Times’s You’re the Boss blog ran a piece yesterday discussing background checks of prospective employees. It focuses on a case study of one company that recently decided to run a background check on every new employee after accepting a conditional job offer. I thought I’d share a few thoughts I took away from the article.

1. It is not practical or cost-effective to run a background check on every applicant you are considering hiring. Because of information that could be revealed and the risk of a taint of discrimination, it is also not advisable to use a background check as part of the selection process. The best practice is to use background checks like medical exams and drug screens—as a final vetting after a conditional job offer is made. In a perfect world, no employee should be allowed to start working until after the background screen clears, although the needs of a particular business to have an employee start immediately may win out.

2. The need to screen employees will vary from company to company based on the nature of the business. Not every company will have to screen every employee. If you are not going to screen every employee, though, you should at least screen all employees in the same job. Consistency will eliminate any perception that you are selectively screening candidates based on a protected class.

3. Businesses should be very careful with the use of publically available information on the Internet (e.g., Google and Facebook) to conduct informal background searches. For one thing, the information is difficult to verify and may not be truthful. Also, an Internet search could reveal protected information—such as an employee’s membership in a cancer survivors’ group—that you, as an employer, do not and should not want to know. Internet searches of job candidates, however, do have value, but should only be used as one part of a background screening protocol, and with measures in place to limit the discovery of protected information.

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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.

Have we reached the end of civility?

A recent column in the New York Times had an interesting take about the decreased level of civility in our society and its effect on the workplace. The author’s thesis is that technology has caused a decline in civility over the last 10 years, which has impacted the workplace:

[A]s we’re all aware, the 21st century has brought with it new variations on rudeness. Answering texts during a luncheon. Tapping on BlackBerrys instead of listening to a speaker—or a child’s recital. Shooting off hostile e-mail anonymously. But is this decline in manners real? And when considering this, should we separate the outward symbols of politeness from general civility? It’s a complicated but important issue that has a surprising economic impact. Christine Pearson, a professor of management at Thunderbird School of Global Management in Arizona, said her research over the last decade had shown that many workers left jobs because of continuing incivility but rarely reported that as the reason.

Professor Pearson researched 9,000 managers and workers for her book, The Cost of Bad Behavior: How Incivility Is Damaging Your Business and What to Do About It. She concluded that incivility is rampant on the job. She cited examples such as rudeness, ignoring requests for help, ignoring a colleague passing in the hall, gossiping behind colleagues’ backs, and borrowing supplies without asking.

I’ve written about courtesy and civility before, and will leave you with two additional thoughts:

1. Whether this is a real workplace problem or not, it cannot hurt to try to be a little nicer to each other. Behavior models start at the top. If an organization is run by intimidation and scare tactics, then it should come as no surprise when managers and supervisors think they need to motivate their teams by yelling, harassing, sniping, and snubbing. It should also come as no surprise when employees respond with the incivility of litigation.

2. Social media has downgraded the level of discourse in our society. If recent statistics cited by Mashable are to be believed, 1 out of every 4 U.S. Internet pageviews occurs on Facebook. It is not a stretch to concluded that this increased connectedness and familiarity with each other has led to more informality and less civility. The ability communicate in 140 character bursts does not require truncated discourse. (You can find me on twitter @jonhyman).

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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? EEOC reports record charge filings for 2010

The EEOC recently published its fiscal year 2010 FY 2010 Performance and Accountability Report. Given the state of the economy, its findings are not all that surprising. The EEOC reported a record number of discrimination charge filings, 99,922, its highest total in the agency’s 45-year history. What is surprising, however, is what the EEOC is doing with all these charges—it’s closing files.

Despite the record number of filings, the EEOC resolved 104,999 charges, leaving it with an inventory of 86,338 at the end of its fiscal year. While that number seems high, it’s less than a 1% increase from the end of FY 2009. By way of contrast, the EEOC’s pending inventory increased nearly 16% from FY 2008 to FY 2009. In other words, the EEOC is resolving cases—whether by mediation and settlement, litigation, or dismissals and right to sue letters.

Here’s what the EEOC has to say about the cause of this record number of filings:

This surge in charge receipts is due in part to the expanded statutory authorities that EEOC has been given with the ADA Amendments Act (ADAAA) of 2008; the Genetic Information Nondiscrimination Act (GINA) of 2008; and the Lilly Ledbetter Fair Pay Act of 2009 (the Ledbetter Act). We also attribute the rise in charge receipts to EEOC becoming more accessible, making charge filing easier and providing better, more responsive customer service. Our internal Intake Information Group expanded the agency’s availability by phone and e-mail. Additionally, in the last four years, the EEOC has concentrated on revamping its charge intake services, expanding walk-in hours, and issuing a plain language brochure to assist potential charging parties in understanding their rights and the EEOC charge process. Individuals can now contact the agency by phone, by mail, by e-mail, by going to the EEOC website, or by visiting EEOC field offices.

These record filings have resulted in record recoveries. In FY 2010, the EEOC secured more than $319.3 million for more than 18,898 people through administrative enforcement activities—mediation, settlements, conciliations, and withdrawals with benefits. This figure represents the highest level of monetary relief ever obtained by the Commission, and a $25.2 million increase from FY 2009. Of this record recovery, $85 million came from the resolution of 285 lawsuits brought by the EEOC.

What does all this mean for employers? The EEOC is no longer an agency where charges go to die. Employers can expect more thorough investigations, quicker resolutions, and more aggressive enforcement. If you are charged with discrimination with the EEOC, you should take it seriously; the EEOC is.

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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.

Announcing the ABA Blawg 100 – and a shameless request for your vote

Today, the ABA Journal announced that it has selected the Ohio Employer’s Law Blog as one of the top 100 legal blogs for 2010. I am truly humbled. The ABA’s blog directory has more than 3,000 registered blogs. To have been selected as one of the 100 “best and brightest law bloggers” by the American Bar Association leaves me speechless.

Here’s my Oscar moment. It really is an honor just to have been nominated. You can, however, navigate over to the ABA’s website and vote for me as the top Labor & Employment blog of 2010. You need to be registered at abajournal.com to vote. Congratulations to the other 99 honorees, and especially the other four selected in the “In Labor” category, all of whom are deserving.

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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.