Ohio just became a friendlier state for age discrimination plaintiffs

In Gross v. FBL Financial Servs., the U.S. Supreme Court concluded that mixed-motives do not exist in federal age discrimination claims, and for a plaintiff to succeed on an disparate treatment claim under the ADEA, he or she must prove that age was the “but-for” (that is, the only) cause of the challenged adverse employment action.

An open question left in the wake of Gross was whether state courts such as Ohio would follow Gross under parallel state court age discrimination statutes. Thomas v. Columbia Sussex Corp. (Ohio Ct. App. 1/6/11) [pdf] provided our first Ohio answer. It concluded that Gross does not apply under Ohio’s age discrimination statute. While the opinion somewhat muddles its discussion of Gross, the court approved what amounted to a mixed-motive jury instruction given to the jury. Therefore, mixed-motive age claims are alive and well under Ohio age discrimination statute, and the effect of Gross is limited to cases brought under the federal ADEA.

For employers, this opinion is not quite as bad as it seems. Yes, it will likely result in more plaintiffs eschewing a federal venue and filing their age claims under Ohio law, and in Ohio courts with state court juries. Ohio’s age discrimination statute, however, has a short six-month statute of limitations, as compared to 300 days one has to file an age claim with the EEOC to perfect one’s right to file a lawsuit under the federal statute. Because employees have a easier burden of proof under Ohio law, they will have to elect the shortened filing period. Employees who miss the initial six months will have to go the federal route, with its tightened burden of proof under Gross.

For businesses, the advice I gave after Gross holds true regardless of the burden of proof. Employers should meticulously document employees’ performance problems and other disciplinary action. A contemporaneously well-documented personnel file makes it that much more difficult for a plaintiff to prove that age was the motivating reason behind the termination or other adverse action.

Lessons from Children’s Lit, part 3: Knuffle Bunny

Lately, my son and I have been reading Mo Willems’ Knuffle Bunny, a lot.

Knuffle Bunny tells the story of Trixie, who loses her stuffed bunny (and prized possession) during a trip to the laundromat with her Daddy. When she discovers her loss, she tries to tell her Daddy, but he does not understand her baby babble. When Mommy catches on, the family rushes back to the laundromat to find Knuffle Bunny. I don’t want to spoil the end for anyone, but suffice it to say that when we finish the book, my little guy looks up at me as says, “She’s so happy.”

What lessons can employers take away from this “cautionary tale”?

1. There are no hard and fast rules about how employees must complain about harassment or discrimination. Trixie, who had not yet learned to speak, did the best she could to communicate to her Daddy that Knuffle Bunny was missing. The fact that he did not understand her did not change his fatherly responsibility to help locate Knuffle Bunny. The same holds true for employers. In a perfect world, employees would lodge complaints in typed memos, dutifully turned into designated persons in the HR department. Our world, however, is far from perfect. Employees email, text, leave voice mails, scribble hand-written notes, make off-handed comments, and even say nothing at all. Regardless of how a manager or supervisor learns about harassment or discrimination, the rules are the same—investigate, remedy, and don’t retaliate.
   


2. Leave no stone unturned. When Trixie’s family first returned to the laundromat, they could not find Knuffle Bunny. It was not until Trixie’s Daddy redoubled his efforts that he found it. The same holds true for employers’ investigations. A half-assed investigation is no better than no investigation at all. If a document is missing, you better be able to convince a court that you took all reasonable efforts to locate it. If you conclude that an employee’s harassment complaint is unfounded, you better be sure you interviewed everyone identified as a potential witness. If you are going to discipline or terminate an employee, you better double check that you considered all documents and witnesses before reaching a conclusion. Courts are loath to second-guess employers’ business judgment, but will not hesitate if it appears an employer slacked in its investigatory responsibilities.

For legal compliance, don’t jump off the bridge

When I was a child, whenever I wanted to do something popular that my parents disapproved of, they would caution me, “If everyone else jumped off a bridge, would you jump too?” I hated when they said that. Yet, now that I am a parent, I find myself saying the same thing to my kids. Today, I am also going to say it to my readers.

Just because a particular employment practice is popular or widespread does not mean it’s legal. There are lots of practices in use at lots of companies that do not pass legal muster:

• Various common wage and hour exemptions.
• Treating employees as contractors.
• Refusing to pay employees for off-the-clock work.
• Failing to pay employees who work through their lunch breaks.
• Googling job applicants as the lone background screening tool.
• Lack of technology policies and social networking policies.
• Policies that prohibit discussions about wages and benefits.
• Requiring pre-offer medical exams of all job applicants..

This list could go on and on. The point is that popular employment practices aren’t necessarily legal employment practices. You should not rely on the company-next-door for your legal compliance. Instead, invest a few dollars in a comprehensive review by a qualified attorney. Heck, some of us will even get started for free.

[Hat tip: Wage and Hour Laws]

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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.

MLK Day calls for reflection about how far race relations have come, and how far we have left to go

Today celebrates the life and message of one of our nation’s most important heroes, Martin Luther King, Jr. His remembrance suggests that we consider not only how far our race relations have come in the last half-century, but also how far we have left to go. 

To reflect upon how far we have come, consider MLK’s famous “I Have a Dream” speech, one of the greatest and most significant pieces of oration ever delivered:

To consider how far we have left to go, you need only review a few posts from my archives, each of which illustrates that bigotry still pervades our workplaces and our society:

• Sadly, racism is alive and well
• Know when to fish, know when to cut bait
• Of course racism is wrong, but at least it gives me job security
• A chocolate cupcake by any other name…
• Federal court takes on the word “nigger” in a reverse race discrimination case

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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 #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:

• Charts of EEOC Charges 1997-2010 – from Philip Miles’s Lawffice Space

• Record Number of Charges Filed With EEOC – from Joe’s HR and Benefits Blog

• EEOC Statistics Reveal Jump in Discrimination Charges – from Delaware Employment Law Blog

• EEOC Reports Record Number of Charges in 2010 – from Wyatt Employment Law Report

• EEOC Reports Job Bias Charges Hit Record High in 2010 – from Alabama HR Law

• Private Sector Workplace Discrimination Charges Hit Record in 2010 – from Southwest Florida HR Law & Solutions

• Job Bias Claims Hit New Record In 2010 – from Workplace Diva

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

Discrimination

• When Your Manager Has Been Accused of Sexual Harassment – from Daniel Schwartz’s Connecticut Employment Law Blog

• GINA Final Regulations are Effective 1/10/2011: Are You Ready? – from Michael Haberman’s Omega HR Solutions

• GINA Compliance? – from World of Employment

• GINA sleepy so far, but don’t get caught unaware – from CCH’s Employment Law Daily

• Is There More to the Story About the New Mom Who Quit Her Job Because She Was Denied Access to a Lactation Room? – from Patrick Smith’s Iowa Employment Law Blog

• Beginning The New Year With Breastfeeding – from Social Media Employment Law Blog

• Crying At Work, A Woman’s Burden – from Jenna Goudreau’s The Other Half

• The Top 5 Most Intriguing Decisions In EEOC Cases Of 2010 – from Workplace Class Action Litigation

• Interview Questions - Make them “Legal” – from Rob Radcliff’s Smooth Transitions

• First Circuit holds that Title VII does not protect employees from the “ordinary slings and arrows that suffuse the workplace every day.” – from Employment Law Matters

• Jury Awards $5.8 Million To White Supervisor In National Origin Discrimination Lawsuit – from Atlanta Employment Lawyer Blog

• Is Retaliation for Complaining About Sexual Orientation Discrimination a Violation of Title VII? – from Michael Fox’s Jottings By An Employer’s Lawyer

• ADA accommodations: Do jobs held by temps count as “vacant”? – from Stephen Meyer’s HR Cafe

Social Media & Workplace Technology

• How Facebook Can Make or Break Your Case: The Plaintiff’s Arsenal – from Eric Meyer’s The Employer Handbook Blog

• Taking a Photo with a Placenta Won’t Get You Kicked Out of Nursing School – from Kashmir Hill’s The Not-So Private Parts

• Social Media Law Predictions For 2011 – from Shear on Social Media Law

• Production of Litigation Hold Letters & Imaging Hard Drives – from Bow Tie Law’s Blog

• Computer Fraud & Abuse Act: Eleventh Circuit Finds Employer’s Policy Defines Limits of Employee's Authorized Access – from Trade Secrets & Non-Compete Blog

HR & Employee Relations

• What Can a Company Do With a Dangerous Employee? – from Suzanne Lucas at BNET

• The Arizona shootings and your workplace – from Sindy Warren at the Warren & Hays Employment Law Blog

• Brits to make it easier to hire/fire workers – from Walter Olson’s Overlawyered

• Britain to Relax Employment Laws in Effort to Increase Employment – from Workplace Prof Blog

• Will Your Company’s Non-Competition Agreement Be Enforceable When You Need It? – from Trade Secret / Noncompete Blog

Wage & Hour

• Workplace Flexibility and the Bottom Line – from Steven Greenhouse at the New York Times

• Reporting Time Pay: A Wage and Hour Winter Wonderland – from Wage & Hour Counsel

• “Heads-Up” That Employee “Might” Take FMLA Leave Insufficient to Invoke FMLA Protections – from The FMLA Blog

• The Supreme Court Identifies Medical Residents as Employees – from Maryland Employment Law Developments

Labor Relations

• State of the Unions – from James Surowiecki at The New Yorker

• Sixth Circuit Holds That Ohio Wrongful Termination Claim Pre-Empted By NLRA – from Employer Law Report

• NLRB Proposed Workplace Notice Likely to Spark Uptick in Union Activity – from EFCA & Labor Law Reform Blog

• Employer Found Liable for Damages for Accessing Former Employees’ Personal Emails – from Wisconsin Employment & Labor Law 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.

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?

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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.

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.

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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.