WIRTW #164 (the you give love a bad name edition)

In honor of Valentine’s Day, Vault.com published the results of its annual office romance survey. The highlights:

• 59% have participated in an office romance
• 11% think office romances are never acceptable
• 20% think any office romance is acceptable
• 34% think employees of different levels should not engage in office romances
• 26% have dated a subordinate, while 18% have dated a superior
• 33% have had a tryst in the office, while only 4% admit to having been caught in the act (those poor 4%)

For more on the risks and dangers of office romances, I recommend Employers: Think Your Competition is Tough? Watch Out for the Valentine’s Day Card (from Daniel Schwartz’s Connecticut Employment Law Blog) and Do You Love Love Contracts? (from Manpower Employment Blawg).

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

Discrimination

• Some Practical Facts About the Americans with Disabilities Act (ADA) and the ADA Amendments Act (ADAAA) – from Employment Essentials

• What to do when a disabled employee requests an accommodation at work – from The Employer Handbook Blog

• 500,000 reasons to worry about retaliation claims – from Jay Shepherd’s Gruntled Employees

• Gay Man Fired For Complaining Of Harassment Can Bring Retaliation Claim – from Atlanta Employment Lawyer Blog

• Can They Ask That? Your Rights In Job Applications – from Screw You Guys, I’m Going Home

• Stupid Manager Tricks: Pregnancy Discrimination – from HR Cafe

• Using prospective employee’s credit reports in hiring – from Employment Law Bits

• Sexual Harassment Training: A Must-Do for Employers – from CPEhr

• Failure To Hire Was Not Racially Discriminatory Where Employer Had Established Policy Against Applicants With Theft Convictions – from California Public Agency Labor & Employment Blog

• Family Responsibilities Discrimination Quiz – from George’s Employment Blawg

Social Media & Workplace Technology

• NLRB Regional Director Discusses “Facebook Firing” Case With Morning Show – from Labor Relations Today

• The NLRB-Facebook Firing Case: Four Things Employers Need To Know – from TLNT

• Influence in Social Media: How to Find the Top Bloggers – from Social Media Today

• Egypt, Twitter and your Employment Screening Program – from employeescreenIQ Blog

• Your Employees Think They Are Smarter Than You – from The HR Capitalist, Kris Dunn

• Facebook user had standing to challenge subpoena seeking his profile information – from Evan Brown’s Internet Cases

• Nothing Says “Bad Faith” Like Throwing a Laptop off a Building – from Bow Tie Law’s Blog

• Are electronic gadgets promoting or undercutting work-life balance? – from David Yamada’s Minding the Workplace

Labor Law

• New NLRB Website – from Workplace Prof Blog

• NLRB Majority Announces New Theory of Employer Liability: the “Preemptive Firing” – from Labor Relations Counsel

• NLRB Actions to be Reviewed by Congressional Committee – from EFCA & Labor Law Reform Blog

• At will and the NLRB: Filling a void? – from Michigan Employment Law Connection

• NLRB Upholds Practice of “Bannering” – from Washington Labor & Employment Wire

HR & Employee Relations

• Holding Back Your Star’s Hair While They Puke: HR Lessons from The Social Network – from Fistful of Talent

• The Do’s and Don’ts of Employee Handbooks – from World of Work

• Arguing Is Pointless – from Harvard Business Review

• Wield the axe wisely – from Work Matters

• Workplace Violence Is Not Part of the Job - A Nursing Phenomenon – from Workplace Fairness

• Employee Performance Evaluations: The Do’s and Dont’s – from Minnesota Labor & Employment Law Blog

Competition & Trade Secrets

• Putting the Computer Fraud and Abuse Act to Work for Employers – from Molly DiBianca’s Delaware Employment Law Blog

• District Court Holds That Computer Forensic Investigation Costs Satisfy “Loss” Requirement of Computer Fraud and Abuse Act – from Trading Secret

• Enforce that Non-Compete! – from Rob Radcliff’s Smooth Transitions

• Why You Need a Non-Compete, Non-Solicitation, or Confidentiality Agreement for EVERY Key Employee – from Bottom Line Business Insights

• Trade Secret Theft: The China Syndrome – from Fair Competition Law

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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 asshole defense to harassment claims

Fortunately or unfortunately, not all upsetting or even mean-spirited conduct in the workplace is actionable. In the absence of an employee’s membership in a protected class, participation in a protected activity, or a clear public policy that prohibits the employer’s conduct, an employee cannot maintain a claim for harassment merely because his employment has become unpleasant or undesirable.

In other words, as an Ohio appellate court recently pointed out in Kimmel v. Lowe’s Inc. (quoted above), there is no law against general incivility in the workplace. Merely because the law does not provide a remedy against someone for being an asshole does not mean that you, as an employer, need to tolerate it. That decision, though, is an organizational one, not a legal one.

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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.

Would you rather?

Career Overview’s list of the 25 most difficult jobs in the world caught my eye. So, to you, my readers, I pose the following question: Would you rather clean sewers in Calcutta (#6), or work as a porn theater janitor (#24)?

I love being an attorney. Even though it’s hard work, I am grateful everyday that I am able to earn a living this way.

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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.

Avoid “kitchen sink” pleading to maintain credibility

Ramadan v. MetroHealth Med. Ctr. (Ohio Ct. App. 1/13/11) is a medical malpractice case, which is an odd fit for a blog about employment law. It teaches, though, a universal lesson about the importance of selective pleading, and not merely throwing everything against the wall and seeing what sticks.

Briefly, Mai Ramadan’s husband died in the operating room during surgery for injuries he suffered while setting his wife on fire. She then sued for the hospital for medical malpractice and loss of consortium. On appeal, she argued that the trial court wrongly admitted evidence about the arson. The court of appeals ruled that because she brought a claim for loss of consortium, the jury was entitled to hear evidence about the quality of her marriage and the events that led to the injuries:

In the instant case, plaintiff argues that evidence of the circumstances that caused the fire and resulting injuries is irrelevant to plaintiff’s medical malpractice claim…. [P]laintiff did not limit her case to a claim of medical negligence. Plaintiff chose to also pursue a claim for loss of consortium, which required proof of damages.... Accordingly, evidence regarding plaintiff’s relationship with Ramadan is relevant to rebut her claim for loss of his “companionship, cooperation, aid, and affection.” Tragically, this evidence included that Ramadan abused plaintiff, ultimately setting her on fire.

To bring this full circle to the world in which we live – employment law – consider these words of caution from Moore v. Avon Prods. (N.D. Calif. No. C 06-03425 10/4/07) about how scattershot litigation undermines one’s credibility:

Simply put, Moore has failed to come forward with any evidence that Avon’s stated reasons for firing him are pretextual. Indeed, Moore’s kitchen-sink approach to his discrimination claims only serves to highlight the extent to which his claims are mutually inconsistent and unsupported by the facts. Was he discriminated against because he was disabled? Because of his age? Because of his sex? Because of his race? Or because of his religion? While Moore urges the Court to answer “all of the above,” on the basis of the evidence before the Court, it appears the correct answer is “none of the above.”

Many take the approach that when litigation in concerned, the more the merrier. As these examples show, sometimes what you don’t argue is more important than what you do argue.

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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.

Despite yesterday’s NLRB settlement, employees do not get a free pass on social media posts

The NLRB announced yesterday that it has reached a settlement in a case involving a Connecticut employee fired for posting negative comments about a supervisor on her Facebook page. According to the NLRB’s press release [pdf]:

Under the terms of the settlement approved today by Hartford Regional Director Jonathan Kreisberg, the company agreed to revise its overly-broad rules to ensure that they do not improperly restrict employees from discussing their wages, hours and working conditions with co-workers and others while not at work, and that they would not discipline or discharge employees for engaging in such discussions.

You can read my earlier thoughts on the filing of this charge for more background. Seth Borden’s Labor Relations Today also has details on yesterday’s settlement, including news of another charge on the horizon that may lead the NLRB to resolve this issue.

What troubles me about this story is how it is being portrayed by the news media. Our local NBC affiliate teased this story with the following: “Tune in at 11 to find out what you’re allowed to say about your boss on Facebook.” Neither this case, nor any other case, will give employees carte blanche to trash their employers on Facebook, Twitter, in the press, or at a Saturday night cocktail party. Employees have the right to discuss their wages, hours, and working conditions; they do not have a license to defame, disparage, or otherwise trash their company, management, product, or co-workers.

Don’t read too much into this recent foray by the Board into the brave new world of social media. Until the NLRB says otherwise, employers shouldn’t treat social media any differently than any other form of employee communications.

For more coverage in the blogosphere, I recommend Daniel Schwartz’s Connecticut Employment Law Blog, Philip Miles’s Lawffice Space, Eric Meyer’s The Employer’s Handbook, Defending the Digital Workplace, Workplace Prof Blog, Kashmir Hill’s The Not-So Private Parts, Hawaii Labor and Employment Law, and Wisconsin Labor & Employment 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.

The most significant penny in the history of American jurisprudence? 6th Circuit remands case over one cent

What caused the court in Freeland v. Liberty Mutual Fire Insurance Co. (6th Cir. 2/4/11) [pdf] to write so eloquently about the fate of the penny?  

The penny is easily the most neglected piece of U.S. currency. Pennies tend to sit at the bottom of change jars or vanish into the cracks between couch cushions. Vending machines and parking meters will not accept them. Many people refuse to bend down to pick up a penny off the ground, deeming the reward not worth the effort. And a member of Congress even introduced legislation that would effectively eliminate the penny by requiring merchants to round their prices to the nearest nickel. See Currency Overhaul for an Industrious Nation (COIN) Act, H.R. 5818, 109th Cong. § 3(a) (2006). In this case, however, the penny gets a rare moment in the spotlight. The amount in controversy in this declaratory judgment action is exactly one penny short of the jurisdictional minimum of the federal courts.

A civil case arrives in federal court in one of two ways: the plaintiff files it, or the defendant removes it from state court. Either way, the federal court must have subject matter jurisdiction over the case—that is, the case either must arise under a federal statute, or all plaintiffs must hail from different states than all defendants and the amount at stake must exceed $75,000.

Make no mistake, these courts take their limited jurisdiction seriously. Need proof? Freeland v. Liberty Mutual Fire Insurance Co. dismissed a case over one cent. The case involved a $100,000 insurance policy, over which the parties did not dispute the first $25,000 in coverage. Therefore, the court concluded that the amount in controversy was $75,000, not $100,000, which fell one penny short of the key necessary to open the gates to the federal courthouse. 

Imagine litigating a case for more than two years, only to learn that the entire case was litigated in the wrong court. The court was sympathetic (to a point), but remanded the case nevertheless:

The Court recognizes that vacating the district court’s judgment and remanding this case is painfully inefficient. This is especially so in light of the substantial resources that been spent litigating the merits of this case and the infinitesimal amount by which the amount in controversy falls short. But the Court simply has no choice in the matter.… The district court lacked the authority to grant Liberty Mutual’s motion for summary judgment. The only proper course is to remand this case back to state court for lack of federal jurisdiction.

In litigation, the little things really do matter.

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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 #163 (the all good things must come to and end edition)

I’m sorry to leave you all alone
you’re sitting silent by the phone
but we’d always known there would come a day
the bus is warm and softly lit
and a hundred people ride in it
I guess I’m just another running away 

I’m gonna pick it up
I’m gonna pick it up today
I’m bound pack it up
I’m bound pack it up and go away 

—I’m Bound to Pack It Up, The White Stripes

Don’t get scared. This blog lives on. But, from this point forward, February 2nd will no longer be know as Groundhog Day, but as the day The White Stripes broke up.


As for me, I’ll always have the memory of the first time I heard the opening chords of Dead Leaves and the Dirty Ground, and was hooked for life.
Here’s the rest of what I read this week:

Discrimination

• Protip: Do Not Buy A Vibrator For Any Lady At Your Office – from Above the Law
  
• There’s That Word Again - Bully – from Michael Fox’s Jottings By An Employer’s Lawyer
  
• Trouble ensues over office artwork with Bible reference – from Work Matters
  
• Is age discrimination running rampant, or is there another explanation? – from Employment and Labor Insider
  

Social Media & Technology

• What Is Facebook, Really? – from Harvard Business Review
  
• An employee filed a complaint? Facebook probably isn't an appropriate place to vent – from HR HQ
  
• Pew Research Center Study Finds Older Americans are Becoming More Active on the Internet Through Social Networking and Blogging – from the Digital Workplace Blog
  
• A Minute to Lose It: Why Every Health Care Professional Needs to Have a Social Media Policy. Now. – from Daniel Schwartz’s Connecticut Employment Law Blog
  
• Sharing The Love On Twitter - Does Courtney Love Become Less Defamatory By Using Social Media? – from Social Media Employment Law Blog
  

Labor Law

• Senators Restate Opposition to Becker Re-Nomination – from Seth Borden’s Labor Relations Today
  
• So Much for Comity: Business Groups To Fight Becker Renomination for NLRB – from Joe’s HR and Benefits Blog
  
• Becker Nomination Redux – from The ChamberPost
  
• 47 Senators oppose Becker nomination to NLRB – from LawMemo Employment Law Blog
  
• Do the New NLRB Rules Really Help Workers Organize? – from Workplace Fairness
  
• The NLRB Is On The Offensive – from The Metropolitan Corporate Counsel
  

Employee Relations & HR

• Can I Throw Away the Paper I-9 Once It's Been Scanned and Saved? – from the Delaware Employment Law Blog
  
• It's a Snow Day! Dealing with Inclement Weather and the Proper Payment of Wages – from Colorado Employer’s Law Blog
  
• More Employees Look To Employers For Medical Advice – from Workplace Diva
  
• Getting Down to Management Basics: My 5 Postulates of Employment Law – from TLNT
  
• Nepotism in the workplace – is this illegal? – from Employment Law Bits
  
• Dealing With Workplace Bullies: “There are a Lot of Fake Tough Guys Around Here” – from The HR Capitalist, Kris Dunn
  
• “Dirty Jobs” in HR – from Michael Haberman’s Omega HR Solutions
  

Wage & Hour

• Record Keeping Requirements Under the Fair Labor Standards Act: How Employers Can Best Protect Themselves – from Wage & Hour - Development & Highlights
  
• You Just Found Out Your Coworker Is Making More Than You. Now What? – from Evil HR Lady
  
• As FMLA Absences Mount, the Employer Must Lay Down the Law – from FMLA Insights
  
• Your employees are using more FMLA – from The Employer Handbook Blog
  

Litigation

• No Triggering Event, No Duty to Preserve – from Bow Tie Law’s Blog
  
• Guess Who’s Coming to the Deposition? – from From the Sidebar
  
• E-Discovery - Litigation Hold Rule on the Way? – from Philip Miles’s Lawffice Space
  

Non-Compete Agreements

• Should You Negotiate Your Non-Compete? Yes, and Here’s 5 Reasons Why – from Legal Developments In Non-Competition Agreements
  
• Why you should negotiate your non-compete – from Rob Radcliff’s Smooth Transitions