I swore I wasn’t going to write about Brett Favre; then he got sued

Earlier this week, two former employees of the New York Jets sued their former employer and Brett Favre for sexual harassment. The message therapists allege that Favre made unwanted sexual advances during his tenure with the Jets in 2008. The lawsuit comes on the heels on the NFL’s fine against Favre for not cooperating with its investigation of similar allegations made by former Jets television host Jenn Sterger. Because others have covered the issues of the dangers of text messaging in harassment prevention and litigation (Philip Miles’s Lawffice Space, for one), I have a different take on this story.

The timing of the lawsuit—on the heals of the NFL’s closure of the Sterger investigation and its $50,000 fine of Favre—is more than suspicious. In their complaint, the plaintiffs try to explain the nearly 2½ year gap between the alleged harassment and the lawsuit:

   30. The plaintiffs have refrained from filing suit in the misguided hope that the NFL would take some meaningful action against defendant Favre for his improper behavior with Ms. Scavo, Ms. Sterger and others.

   31. Unfortunately, instead of taking any meaningful action, the NFL, after an alleged extensive investigation, which according to the media used former FBI agents and other extensive resources, provided no meaningful report, made no findings, waited until the regular football season was basically over and Favre was retiring from football and then reached the inexplicable and rather shocking conclusion that Favre did not violate any league policies regarding conduct in the workplace but rather merely failed to cooperate.

   32. The NFL imposed what is a relatively meaningless fine of $50,000 after probably spending a hundred times that amount on its alleged investigation and public relations attempt to derail any inquiry which would determine what occurred and to institute procedures to prevent the type of behavior Favre was accused of in the future.

   33. Since the NFL took no action, the plaintiffs had no choice but to commence their own legal action to be permitted to work in their chosen profession without being harassed, to recover the damages they had suffered and hopefully, maybe someday, to deter players in the NFL from acting inappropriately with other women who are required to come into contact with football players within the scope of their work and to encourage other women who are harassed by professional athletes in the workplace to come forward without fear of retribution.

I have no idea whether Favre propositioned the plaintiffs for a three-way encounter, just like I have no idea whether the pictures of Favre’s maleness that have surfaced online are genuine. The truth lies somewhere in between the allegations and the text messages. But, it certainly doesn’t help the plaintiffs’ cause that, according to Good Morning America, they refused to cooperate with an earlier NFL investigation concerning “media reports that Favre had made passes at two massage therapists who worked for the New York Jets.” It also doesn’t help their cause that their lawsuit looks like a money grab, piggy backing off the high publicity Jenn Sterger investigation.

I am not arguing that a gap of years between harassment and a lawsuit means that the harassment did not happen. I am, however, questioning the motives of the individuals bringing it to light via a lawsuit 2½ years later. Ultimately it will be up to a jury to determine the extent to which the timing undermines the plaintiffs’ credibility. It would be a shame if that timing ends up clouding the truth.

(Photo by Lisa Yarost, available on Flickr)

---

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.

2011: A Rehiring Odyssey

According to CNN, 2011 is going to be the year that American businesses start hiring again:

After three years of economic pain, a growing number of economists think 2011 will finally bring what everyone's been hoping for: More jobs and a self-sustaining recovery.... [E]conomists forecast between 2.5 million and 3 million jobs being added to U.S. payrolls in 2011, about triple the gains likely to be recorded in 2010 and what would be the best one-year jump since the white hot labor market of 1999.

If your business is planning to contribute to these 3 million new jobs, here are some issues for you to think about as you locate and hire the best available candidates to rebuild your workforce:

• Are you going to hire anew from the outside, or rehire former employees?

• Where are you recruiting from and what is your applicant pool?

• When is the last time you read, and revised, your employment application?

• Should you conduct reference or background checks, and how will you do so non-discriminatorily?

• If you are going to check backgrounds, will you use online tools like Facebook and Google?

• Are you asking lawful and non-discriminatory interview questions?

• Will you conduct any applicant testing, such as personality tests, and if so, are they legally timed?

• Do you require medical exams or drug/alcohol tests, and if so, are they legally timed and administered?

• What are the terms and conditions of employment? Offer letters? Non-competition agreements? Confidentiality agreements?

• When is the last time you reviewed and retooled your employee handbook?

There is no magic wand that you can wave to hire the most qualified and productive workforce. How you answer these questions, however, will help ensure that the process you use in restocking your workforce exposes you to the least amount of legal risk.

---

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.

My New Year's resolution is... Patience

According to the Williston Herald, the ancient Babylonians made the first New Year's resolution more than 4,000 years ago. They believed that one should spend the first day of the new year "reflecting on personal past errors and planning to resolve them to improve the self during the following year." After spending the last 11 days with my kids (who I love dearly), I decided that my resolution for the new year would be patience. In the spirit of my own path to self-improvement, I thought I'd share a few thoughts on how employers can be more patient, and, in the process, improve relations with their employees and limit the risk of lawsuits.

1. Patience with the chronic complainer. Every workplace has that employee -- the one who, at the drop of hat, lodges a complaint about something. It might be a co-worker, it might be a boss, it might be the quality of the free coffee, or it might be the thermostat setting. Employers should exercise caution with this employee. A drop of patience might avoid the retaliation lawsuit when the chronic complaint turns into protected activity.
2. Patience with the habitually absent. Most workplaces have rules about absences. I've counseled enough employers to know that most take those rules very seriously. An employee who is habitually absent, however, might not be irresponsible. He or she might be dealing with a medial issue that is causing the absenteeism or tardiness. A modicum of patience with this employee might avoid the creating of an FMLA or ADA quagmire.
3. Patience with wage and hour laws. Anyone who reads my blog regularly knows that I take wage and hour compliance very seriously. I am reasonably confident that I could walk into any business in America and uncover at least one wage and hour violation. The laws are simply too complex for any employer to execute them perfectly, at least without careful and constant guidance from an experienced practitioner. A little patience in the area of wage and hour compliance, however, will go a long to way to avoiding a costly DOL audit or class action lawsuit.
4. Patience. Two years ago, I wrote about what I call the Golden Rule of Employee Relations: "If you treat your employees as you would want to treated (or as you would want your wife, kids, parents, etc. to be treated), most employment cases would never be filed, and most that are filed would end in the employer's favor." I think if we try to be a little more patient in all situations, we would face less strife and fewer lawsuits.

Happy New Year everyone. What's your resolution?

---

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.

Top 10 Labor & Employment Law Stories of 2010: Numbers 2 and 1

2. Social Networking. Mark Zuckerberg made the top of Time Magazine's annual list, but could only reach number two on mine. Last year’s top story fell a spot to number two this year. Nevertheless, 2010 was  huge year for social networking. In 2010, courts addressed the discovery of social media in employment disputes, the NLRB took up whether social media policies violate federal labor laws, and employers continued to harness social media as a screening tool for job applicants. Do you want to harbor a guess on whether this story will be near the top of 2011's list too?

 

1. Activist Federal Agencies. President Obama’s labor and employment legislative agenda may be a been a big dud, but that has not stopped the EEOC, the NLRB, and especially the DOL (and here, and here, and here, and here) from picking up the torch and running with it. And, as we've seen over the last couple of weeks, as big as story has been in 2011, it is poised to be even bigger in 2011. Employers, be afraid. 

 

There you have it—the top 10 labor and employment stories of the past year. Everyone have a safe and happy new year. I’ll be back on January 3 with fresh content.

 

---

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.

Top 10 Labor & Employment Law Stories of 2010: Numbers 4 and 3

Our next two stories impact women during and immediately after pregnancy.

4. Lactation Breaks. One of the lesser heralded provisions of the Patient Protection and Affordable Care Act (better known as the Health Care Reform Bill) is section 4207, which provides reasonable break time for nursing mothers. All employers with 50 or more employees (and most with less than 50 employees) are required to provide nursing mom’s as many unpaid breaks as needed, in a private space other than a bathroom, to express breast milk.

3. Pregnancy Leave Rights. In June, the Ohio Supreme Court clarified that Ohio’s pregnancy discrimination statute does not require that employer provide pregnant women greater leave rights than other employees. Two months later, the 6th Circuit likely took away part of this gift by holding that pregnancy-related impairments that are not part of a “normal” pregnancy qualify as an ADA-protected disability.

(And thank you everyone for your votes in the ABA Blawg 100 -- today is the last day for voting)

 

 

 

---

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.

Top 10 Labor & Employment Law Stories of 2010: Numbers 6 and 5

Numbers 6 and 5 on our list takes up employee privacy rights and employee disability rights.

6. The Intersection of Privacy and Technology. Quon v. Arch Wireless may not have resolved the issue of employee privacy rights in employer-owned equipment, but it at least framed the scope of the debate: “Cell phone and text message communications are so pervasive that some persons may consider them to be essential means or necessary instruments for self-expression, even self identification. That might strengthen the case for an expectation of privacy. On the other hand, the ubiquity of those devices has made them generally affordable, so one could counter that employees who need cell phones or similar devices for personal matters can purchase and pay for their own. And employer policies concerning communications will of course shape the reasonable expectations of their employees, especially to the extent that such policies are clearly communicated.”

5. Courts Begin to Apply the ADAAA, and No Employer is Safe. The ADA Amendments Act went into effect almost two years ago, on January 1, 2009. Because it is not retroactive, however, its effects are only just starting to be seen in the courts. 2010 was the year that courts began to apply the amended law’s expansive definition of “disability.” The result—virtually no medical condition is safe from being considered a disability protected by the ADA.

(Only today and tomorrow to get your votes in. Thank you to everyone who's voted in the ABA Blawg 100)

 

 

 

 

---

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.

Top 10 Labor & Employment Law Stories of 2010: Numbers 8 and 7

The next two stories on the yearly run-down both involve goings-on at the EEOC.

8. The EEOC Declares Open Season on Background Checks. Do you conduct background checks on employees before hiring them? If so, you might be in the EEOC’s crosshairs, as the agency targets credit histories and criminal histories and screening tools. Congress got in the action as well, considering legislation to ban the use of credit information in employment.

7. The EEOC Issues Its GINA Regulations. Last month, the EEOC finally published its long-awaited regulations interpreting the employment provisions of the Genetic Information Nondiscrimination Act. Given the breadth of the regulations, I expect genetic information discrimination to be a growing trend in 2011.

(Only three days left to vote - ABA Blawg 100)

 

 

 

---

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.