New York Times on workplace smoking bans

Last week, the New York Times reported on a growing trend in the medical profession: hospitals and other health care providers that refuse to hire smokers:

More hospitals and medical businesses in many states are adopting strict policies that make smoking a reason to turn away job applicants, saying they want to increase worker productivity, reduce health care costs and encourage healthier living. The policies reflect a frustration that softer efforts—like banning smoking on company grounds, offering cessation programs and increasing health care premiums for smokers have not been powerful-enough incentives to quit.

The Cleveland Clinic, for example, will not hire any smokers. Its website also offers a good example of a nonsmoking hiring policy [pdf]. It also has banned the sale of any non-diet sodas anywhere on its campus. It has no problem, though, selling McDonalds, doughnuts, and hubcap sized cookies (which are delicious) in its cafeteria, so explain that logic to me.

For her part, the Evil HR Lady believes that these policies make for bad human resources:

Companies should focus on offering incentives for quitting. Smokers should have to pay higher health insurance premiums. But, if they ban people who smoke entirely, they are missing out on some great people, who made a big mistake at 13.

As for me, I’m ambivalent as to whether it is good policy or bad policy to screen out smokers from your hiring pool. I’m against these policies for another reason—they may constitute unlawful disability discrimination. As I wrote more than a year ago:

[T]he “regarded as” prong of the new ADA is sufficiently broad to possibly encompass actions taken against employees pursuant to employer anti-smoking policies.... Employees can claim that anti-smoking policies violate the ADA. Addiction is a protected disability. Diseases related to or caused by smoking (cancers, lung diseases, asthma, and other respiratory conditions, for example) are also protected disabilities. Employees will claim that an adverse action taken pursuant to an anti-smoking policy is being taken because the employer regards the employee as disabled. Adverse actions taken against employees because of smoking should now be viewed as high risk, at least until courts begin weighing in on this controversial issue.

So, readers, I turn the floor over to you. A poll in Crains New York is running 54% to 46% against smoker discrimination. Does your workplace have an anti-smoking policy? Are you for them or against them, and why?

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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 special circle of hell is reserved for lawyers that don’t extend professional courtesies

I write this post to vent, not to indict. I therefore withhold the names of the guilty.

For those that do not follow me on twitter, I’ve been dealing with an ill child for the past few days. What started as a routine endoscopy turned into an extended stay at the Cleveland Clinic after he developed a hematoma of the small bowel as a rare, but possible, side effect of the biopsy. After the scariest four days of my and my wife’s lives, he appears to be on the mend, although we have another couple of weeks before he is fully healed and home. From the bottom of my heart, I thank everyone for the well wishes these past days.

I was supposed to be in court this morning on a show cause hearing in what has been a very contentious case. On Friday, I left messages for all three opposing lawyers to explain that because of a family medical emergency I could not make the hearing, and to ask for their consent to a continuance. No matter how hard-fought the case, I would never dream that any attorney could refuse such a request under these circumstances. None of them even had the common courtesy to return my call.

I’ve long believed that Dante saved a special circle of hell for lawyers that do not extend common professional courtesies. Last Friday’s experience confirmed this suspicion.

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.