Friday, January 14, 2011

WIRTW #160 (the bad economy = good EEOC numbers edition)


Earlier this week, the EEOC released its FY 2010 charge filing statistics, which, to no surprise, reveal that in a bad economy employees file more claims. I’m leaving any additional recap and analysis to my blogging brethren who have already covered this story:

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

Discrimination

Social Media & Workplace Technology

HR & Employee Relations

Wage & Hour

Labor Relations


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.

Thursday, January 13, 2011

DOL’s “Right to Know,” or right to sue?


This April, the Department of Labor intends to publish a proposed rule updating the Fair Labor Standards Act’s recordkeeping regulations. The DOL refers to this program as “Right to Know.” The stated goals for these regulations include strengthening protections for workers by protecting their entitlement to earned wages, bringing greater transparency and openness to the workplace, and increasing wage and hour compliance. According to the DOL, the proposed rule will likely:

  • Require the notification of workers’ status as employees or independent contractors.
  • Require that any employers that seek to exclude workers from the FLSA’s coverage perform a classification analysis, disclose that analysis to the worker, and retain that analysis to give to DOL enforcement personnel on request.
  • Require that employers provide a wage statement, including hours worked and a wage computation, each pay period to each employee.

The subtext of these regulations, however, is frightening. The DOL is pursuing an aggressive agenda of wage and hour compliance for low wage workers. While it has swelled its ranks with the hiring of 250 new investigators, it still lacks the budget and manpower to locate or remedy every wage and hour violation in every business. These “Right to Know” regulations will informally deputize every employee, transforming our nation’s workforce into a nation of DOL investigators. Do you still think you can afford to put off that wage and hour audit?


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.

Wednesday, January 12, 2011

Employees aren’t the only ones who have to watch what they post: Social media as retaliation


If you do a search of my archives you’ll find a slew of posts about employees whose posts on social media sites came back to bite them—either in recruiting, terminations, or litigation. A story in yesterday’s Pittsburgh Tribune-Review illustrates that employers are also at risk for the reckless use of social media. The article discusses an EEOC complaint alleging that a manager used the company’s Facebook page to post threatening messages in retaliation for a prior harassment complaint.

It is becoming increasingly clear that communication is communication, whether spoken, in writing, in a email, in a text message, or posted on a social media website such as Facebook. Fairly consistently, courts are ignoring the vessel used to communicate the message. If a message is retaliatory, it will be treated the same, whether told to an employee or posted on a Facebook page.

Other than retaliation, what are some of the other legal risks should employers be aware of concerning social media?

  • Harassment
  • Defamation
  • Disclosure of confidential or proprietary information
  • Commentary on on-going litigation

How can employers guard against these risks? Proactive training. Businesses that fail to properly train all employees about the risks of the reckless use of social media are acting recklessly themselves.


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.

Tuesday, January 11, 2011

Announcing KJK’s Next Employment Law Breakfast Briefing: Managing Employee Medical Issues Under the ADA


You are invited join KJK’s employment lawyers for our next Breakfast Briefing: Managing Employee Medical Issues Under the Amended Americans With Disabilities Act.

Perhaps no issue confounds and confuses employers more than employee medical issues. The 2009 amendments to the Americans With Disabilities Act have only served to complicate matters for businesses. Now, the ADA covers most employees with medical issues. As a result, it is incumbent upon employers to stay up to date on their obligations to accommodate this unique class of employees. Join KJK’s employment lawyers for a free breakfast to discuss the following issues and learn how to proactively avoid ADA claims from increasingly litigious workforces:

  1. What qualifies as a “disability” under the current ADA?
  2. What are employers’ obligations to reasonably accommodate disabled employees?
  3. How does the ADA interact with the other key laws that concern employee medical issues: the FMLA and workers’ compensation laws?
  4. What does it mean to “regard” an employee as disabled, and why is this subset of the ADA so dangerous?

Date: Tuesday, April 12, 2011

Time: 8:00-8:30 Continental Breakfast / 8:30-9:30 Presentation / 9:30-10:00 Q&As

Place: The Club at Key Center, 127 Public Square, Cleveland

Cost: Free (including parking)

If you are interested in attending this free seminar, or for more information, please contact Andrea Hill, (216) 736-7234 or ach@kjk.com, by April 7, 2011.


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.

Rash action could lead to false conclusions in dealing with employee problems


The mall was packed Saturday afternoon. The fact that we had a few inches of snow on the ground did not help the parking situation. I drove around for more than 10 minutes looking for a close parking space so the cold walk wouldn’t impact my two-year-old son’s asthma. I finally eyed a great spot, only to have it stolen by a woman who ignored my turn signal while she zoomed up the aisle the wrong way. I’d normally curse loudly from the safety of my car and move on, but on that day I took a stand. I parked behind her car, waited for her to get out, rolled down my window, and confronted her over her lack of parking lot etiquette. Surprisingly, she apologized, asked me to pull forward so she could back out, and surrendered the assholespot. We exchanged courtesies and went about our ways. When I came out from the mall, I found a note tucked under my wiper blade. It read, “ASSHOLE.” I can only assume that the note was left by someone in the line of traffic behind me who, not having witnessed the entire transaction, assumed that I had stolen their space.

There is a good lesson in this story for employers. Don’t act rashly when dealing with employee complaints or problems. Employers should only take action after a full investigation into all of the facts and circumstances. When an employee complains about something, you only are getting half of the story (at best). If you act based on that half, you are jumping to a conclusion, the correctness of which might as well be a coin flip. You cannot have any confidence in the ultimate conclusion until you conduct a complete and unbiased investigation, which includes interviewing all witnesses, reviewing all documents, and considering all versions of events.

There was an asshole in the parking lot on Saturday, but it wasn’t me. It was the person who left the note without knowing how I ended up taking that spot. Don’t make the same mistake and shortchange your employees by jumping to rash decisions and failing in your duty to fully and completely investigate all employee complaints.


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.

Monday, January 10, 2011

Unstable employees, direct threats, and the ADA


I opened my email this morning to find the following question from fellow blogger The Evil HR Lady:

As you probably know, I’m an avid reader, even though I’ve never lived in Ohio, although I have been to two weddings there, so that must count for something.

I've been reading about Jared Lee Loughner--the Arizona shooter and came across the e-mails written by a class member who thought Loughner was dangerous here: http://voices.washingtonpost.com/44/2011/01/jared-loughners-behavior-recor.html?hpid=topnews

My question for you, the employment lawyer, is given ADA protections, if I notice an employee becoming increasingly unstable, what can I do about it?

I’d love to read your thoughts on this.

Instead of responding directly, I thought I’d share my thoughts with everyone.

The ADA contains a specific exception for employees who pose a “direct threat.” The statute defines “direct threat” as “a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation.” The ADA’s regulations require that the determination that an individual poses a direct threat must be “based on an individualized assessment of the individual’s present ability to safely perform the essential functions of the job.” Employers must base this assessment on either “a reasonable medical judgment that relies on the most current medical knowledge” or “on the best available objective evidence.” In making this determination, employers should rely on the following four factors:

  1. The duration of the risk;
  2. The nature and severity of the potential harm;
  3. The likelihood that the potential harm will occur; and
  4. The imminence of the potential harm.

Palmer v. Circuit Court of Cook County (7th Cir. 1997) succinctly explains the Hobson’s choice employers face when deciding whether to retain a potentially violent employee. Since I can’t say it any better, I’ll just quote from the opinion:

The [ADA] does not require an employer to retain a potentially violent employee. Such a requirement would place the employer on a razor’s edge—in jeopardy of violating the Act if it fired such an employee, yet in jeopardy of being deemed negligent if it retained him and he hurt someone. The Act protects only “qualified” employees, that is, employees qualified to do the job for which they were hired; and threatening other employees disqualifies one….

It is true that an employer has a statutory duty to make a “reasonable accommodation” to an employee’s disability, that is, an adjustment in working conditions to enable the employee to overcome his disability, if the employer can do this without “undue hardship.” … But we cannot believe that this duty runs in favor of employees who commit or threaten to commit violent acts…. The retention of such an employee would cause justifiable anxiety to coworkers and supervisors. It would be unreasonable to demand of the employer either that it force its employees to put up with this or that it station guards to prevent the mentally disturbed employee from getting out of hand.

To sum up and answer the question posed, employers faced with a legitimate and potentially dangerous employee need not wait for the powder keg to explode. Instead, employers can treat the employee as a “direct threat” and separate the individual from employment.

A few additional practical points to consider:

  1. Prior to the termination, obtain written statements from co-workers, supervisors, and managers documenting all threatening behavior.

  2. The severity of threat is proportional to the duration of the risk. In other words, the more real the risk the less amount of time you have to allow it in your workplace.

  3. Typically, I’m opposed to security escorts of terminated employees. The termination of an employee who poses a direct threat for violence is the exception.

  4. Consider carrying out the termination as late in the work day, and work week, as possible. This timing will create and artificial cooling-off period and help limit the risk that the employee returns to do harm.

  5. Put the local police department on notice. Also consider a private security detail for a period of time until you are reasonably certain the employee is not going to return to cause harm.

Finally, my thought and prayers are with everyone in Tucson as they mourn, fight for their lives, cope with what happened, and start the healing process.

Friday, January 7, 2011

WIRTW #159 (the welcome to the party edition)


While it gets harder each week to keep up with the goings-on in the blogosphere, I’m always happy to welcome another to the table. This week, Philadelphia attorney Eric Meyer launched The Employer Handbook, which he promises will provide “clear and concise summaries of the employment-law landscape in PA, NJ and DE.” Eric, welcome, I look forward to reading and sharing links on future Fridays.

Here’s the rest of what I read this week (and last week):

2011 Predictions & Thoughts

HR & Employee Relations

Social Media & Technology

Discrimination

Wage & Hour

Trade Secrets & Employee Competition


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.