WIRTW #166 (the light at the end of the tunnel edition)

You might not know what the above is a picture of, but to me it’s a picture of me sleeping in my own bed every night, and having my family together for more than a couple of hours in a hospital room every day. It’s the canister into which son’s NG tube feeds, and, if you look really closely, you will see that the goo draining into it is clear. Clear goo means the bilious goo that had been pooling in his stomach has started to go somewhere else—down through his bowel— which means that we are (hopefully) rounding the final turn towards home. We’re not home yet (still maybe as much as another week or more), but we’re the closest we’ve been in the past 16 days.

I cannot put into words how much everyone’s emails and tweets of care and support have meant to me. The compassion of strangers often outweighs that of people we’ve known for years. And for that compassion I will forever owe everyone a debt of gratitude.

Here’s what I read this week:

Social Media & Workplace Technology

• Make Sure Your Lawyer Knows How To Use Facebook – from Kashmir Hill’s The Not-So Private Parts
• The March of Technology – from LaborRelated
• Want a Job? Give us Your Facebook Password – from employeescreenIQ Blog
• Maryland’s Division of Corrections Demands Applicants Provide Facebook Usernames and Passwords During Interviews – from Shear on Social Media Law
• Blogging ain’t dying among lawyers – from Kevin O’Keefe’s Real Lawyers Have Blogs
• Facebook for Jury Selection – from Rob Radcliff’s Smooth Transitions
• Should Business Owners Take a Cue From Attorneys? – from Wall Street Journal’s In Charge Blog

Labor Relations

• Is This the Teachers Unions Alamo or a Chance for Resurgence? – from Robert Schwartz writing at the Huffington Post
• Paul Secunda’s amazing coverage of the Wisconsin public employee labor battle – from Paul’s twitter feed
• NLRB Judge Orders Company to Reinstate Striking Workers, Resume Negotiations – from Joe’s HR and Benefits Blog
• The Battle Lines Are Being Drawn – from The Ohio Labor Lawyer
• Trade Unions and Social Media Policies: An Explosive Mixture – from Social Media Today
• NLRB Continues Aggressive Campaign – from Employer Law Report
• Continued Attacks on Employer Actions and No-Solicitation Policies – from Labor Relations Counsel
• Public Sector Bargaining Rights Battle Rages – from Vorys on Labor

Discrimination

• Should I Fight Or Settle: The Strategic Business Decision – from Daniel Schwartz’s Connecticut Employment Law Blog
• Was that a request for an ADA accommodation? Or just griping? – from by Stephen Meyer’s HR Cafe
• Plaintiffs’ Merits Brief Filed In Dukes – from Workplace Class Action Litigation
• Why isn’t Sex Discrimination Disappearing? – from Philip Miles’s Lawffice Space
• Evolving Technology and “Textual Harassment” – from New York City Employment Lawyer
• Gender Discrimination Or Choice? A Tale of Two Sisters – from Stephanie Thomas’s The Proactive Employer Blog
• Reverse Race Discrimination Claim Fails Because Employee Voluntarily Resigned – from Raising the (Missouri Employment Law) Bar
• Is HR Helping Employer Skirt Discrimination Laws? We Can Do Better – from TLNT
• Age Discrimination Case Rocks the BBC, Fueling International Debate about Discrimination in TV and Film – from Employment Lawyer Blog

HR & Employee Relations

• The Words Many Managers Are Afraid To Say – from the Harvard Business Review
• An Update on Why What Happens in the World is Important to HR – from Michael Haberman’s Omega HR Solutions
• Can an employee be fired for using medicinal marijuana? – from Eric Meyer’s The Employer Handbook Blog
• How Not to Discipline an Employee for Theft – from Workplace Prof Blog
• 6 Reasons You Shouldn't Quit Without Notice – from Evil HR Lady, Suzanne Lucas
• Superior Court Recognizes Another Exception to the Pennsylvania At-Will Employment Doctrine – from Pennsylvania Labor and Employment Blog
• Bringing Laughter Back Into Your Life – from Ohio Family Law Blog
• Doctor’s note for all sick calls? Here are 5 reasons I wouldn’t – from Employment and Labor Insider

Wage & Hour

• Is Your Unpaid Internship Illegal? – from Screw You Guys, I’m Going Home
• Should pharmaceutical sales representatives be paid overtime? It depends on where they’re located (for now) – from Overtime Advisor
• Picking off FLSA Plaintiffs – from Employment Class Action Blog
• Uh-oh: “Telecommuting: The Next Wave of Wage and Hour Litigation” – from Walter Olson’s Overlawyered
• Overtime Pay Violations Occur Each Time You Receive A Paycheck Without The Pay You Deserve – from Overtime Lawyer Blog
• The Use Of Independent Contractors and Immigration – from Rush on Business
• Fog Still Shrouds The Bridge To Justice – from Wage and Hour Laws Blog
• Mishandling FMLA Leave for Alcohol Treatment Causes Employer to Fall Off the Wagon – from FMLA Insights

Competition and Trade Secrets

• What Every CEO Should Ask the General Counsel About the Company’s Trade Secrets – from Trade Secrets & Non-Compete Blog
• What Happens If a Company Does Not Enforce Its Non-Compete Agreements? – from Legal Developments In Non-Competition Agreements
• Feast Your Eyes on Koncision’s New Severability Provision – from Kenneth Adams’s Koncision

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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.

Can a boss’s abusive conduct qualify as retaliation?

Title VII does not require that one suffer a job loss to claim retaliation. Instead, Title VII’s anti-retaliation provision protects against any conduct that would dissuade a reasonable worker from engaging in protected activity. Thus, for example, the mere threat of a termination—depending on the circumstances—could constitute an actionable adverse employment action for retaliation purposes.

In denying summary judgment to an employer, the court in EEOC v. Chrysler Group, Inc. (E.D. Wis. 2/17/11), considered not only whether the employer threatened termination, but also how the employer threatened termination:

[T]he manner in which Young delivered his message to each woman matters. If he was screaming and pounding his fists on the table while threatening termination, as Zahn and Hobbs testified, this scenario paints a much more hostile and intimidating atmosphere than if Young delivered his message in a normal tone of voice, as he contends he did.

What does this mean for employers? It could mean nothing. Or it could mean that if courts are examining the tone of threats, courts are beginning to become receptive to notions of bullying as actionable under existing laws.

Because Title VII is not a general civility code for the workplace, it only protects significant, as opposed to trivial, harms. If, however, courts are beginning to recognize threats without any follow-through as actionable, we are not that far of a leap from courts protecting general workplace bullying without any legislative prodding. This possibility should cause employers to be very worried.

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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.

Repeated calls from supervisor to employee on medical leave violates FMLA

What is the line between checking on a sick employee and harassing a sick employee to return to work early? Terwilliger v. Howard Mem. Hosp. (W.D. Ark. 1/27/2011) draws that line in a case that concluded that the employee was entitled to present her FMLA interference claim to a jury.

Regina Terwilliger worked as a housekeeper for Howard Memorial Hospital. On November 14, 2008, Terwilliger completed and submitted an FMLA request for leave for necessary back surgery. After the hospital approved her request, Terwilliger took her leave, underwent surgery, and returned to work after release by her doctor. During her recovery, and before her return to work, Terwilliger claimed that her supervisor, Kim Howard, contacted her weekly to inquire when she was going to return to work. During one phone call, Terwilliger claimed that she asked Howard if her job was in jeopardy, to which Howard replied that she should return to work as soon as possible. According to Terwilliger, she felt pressured by Howard’s calls to return to work early.

Terwilliger claimed that the hospital interfered with her statutory right to 12 weeks of FMLA leave by pressuring her to return to work after only 11 weeks. The district court agreed that a jury should decide that claim.

Interference includes discouraging an employee from using FMLA leave, … as well as manipulation by a covered employer to avoid responsibilities under FMLA…. To prove interference, an employee must show that the employer denied his or her benefits to which he or she was entitled under the FMLA….

Defendants argue that, because Plaintiff returned to work after her doctor had released her to return to work without any restrictions, she cannot claim that she was denied a benefit that she was entitled to under the FMLA. Defendants, however, are overlooking the fact that an interference claim includes the “chill theory.” … Interference occurs when an employer’s action deters an employee’s exercise of FMLA rights…. Here, Plaintiff had a right not to be discouraged from taking FMLA leave…. [T]he Court finds that a reasonable jury could conclude that Defendants interfered with Plaintiff’s exercise of her FMLA rights by discouraging or chilling her exercise of those rights.

It should go without saying that employers should not harass employees into returning early from FMLA leaves. But, this case is a good excuse to remind businesses that the FMLA has specific procedures in place to check on employees during FMLA leaves.

• If the employee’s medical certification indicates that the minimum duration of the serious health condition is more than 30 days, an employer must wait until that minimum duration expires before requesting a recertification.

• In all cases, an employer may request a recertification of a medical condition once every 6 months, even if the original certification is for a longer period of time.

• Otherwise, an employer may request recertification no more often than every 30 days, and only in connection with an absence by the employee, unless the employee requests a leave extension, the circumstances described by the previous certification have changed significantly, or the employer receives information that casts doubt upon the employee’s stated reason for the absence or the continuing validity of the certification.

In all cases, employers should avoid personal contact to check on the return-to-work status of an employee on an FMLA leave, and follow these timelines if a recertification of a serious health condition is necessary.

[Hat tip: FMLA Blog and FMLA Insights]

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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 Internet is a dangerous place for human resources

The Internet is a fabulous resource for businesses. For example, I could conduct a Google search for “social media policy” and fine some wonderful results, including an online database of 164 real-world examples. Because of the Internet’s easy access to information, it creates a strong temptation for businesses to do-it-themselves when it comes to policies and forms.

Not all websites, however, are created equal. Just because you find something on the Internet does not mean that its legal. Take, for example, Pre Employment Medical Questionnaire, which has at least 8 different questions that violate the ADA:

• Do you smoke?
• Do you drink alcohol?
• Are you under any medication?
• Are you under any medical supervision?
• Have you ever suffered from an ailment that resulted in an absence from work?
• Please indicate the total number of sick days you took out in the past year?
• Have you ever been admitted in hospital?
• Do you suffer from any medical condition that could hamper your sight, hearing, coordination or other sensory ability?

(For good measure, it also asks for employees’ dates of birth, which would constitute unlawful age discrimination, and height and weight, which could have a disparate impact based on sex).

The website says, “During the recruitment process most companies require to find out the medical history of all prospective employees.” Trust me, the only companies that ask for this information from prospective employees are those that want to find themselves on the losing end of a disability discrimination lawsuit. When searching the Internet for DIY policies and forms, do yourself and your business a favor and run them by employment counsel before using them. One 15 minute consultation could save you years in court and hundreds of thousands of dollars in legal bills.

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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.

Oh my god, they're really alive!

We found this when we returned to our little guy's room after a walk. We love the peds staff at the Clinic.

Patrice O’Neal on sexual harassment (NSFW)

Today is President’s Day (no, this post is not a dated Bill Clinton joke). The courts are closed. The banks are closed. There’s no mail. And, we’re still in the hospital with our son (who has stabilized), in need of a laugh or two. I saw this over the weekend on Comedy Central. Because the topic fits and it made me laugh really hard, I thought I’d share (with tongue planted firmly in cheek).

The video is definitely NSFW, so if you are working today you might want to wait until you get home tonight to press play. And if you’re easily offended you might just want to to skip the video altogether. Patrice is about as un-PC as they come. You’ve been warned.

Enjoy. I’m back tomorrow with more serious content about the risks of using the Internet as the source for your HR policies and forms.

Jokes.com
Patrice O'Neal - Harassment Discussion
comedians.comedycentral.com
Jokes Joke of the Day Funny Jokes

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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 #165 (the medical update edition)

So we’re on day 9 at the Cleveland Clinic, the only medical facility in the world where it’s actually a good think to say you’re at the Clinic. Our little guy seems to have stabilized. The juices flowing out of his stomach are ever so slightly less in volume and lighter in color, which suggests that the very large hematoma that is blocking one-third, and maybe as much as two-thirds or even all, of his small bowel, is starting to slowly subside. This is not to say that we are headed home anytime soon. He’ll need to be off the NG tube for at least 24 hours, and able to keep drink down without vomiting before they’ll even think about discharging him. It could be anywhere from another week to three weeks before he can again sleep in his Buzz Lightyear bed. In the meantime, we continue to watch his blood counts, which have been low. There was talk of a transfusion the past couple of days, but I think we’ve dodged that bullet. And, if there’s a bright side (which I usually try to find), we’re hoping the nourishment he’s getting through his PICC line will fatten him up some, since he’s a little guy to begin with.

Thank you everyone for your thoughts and prayers this past week. It means more than I can communicate.

Here’s what I read this week (trust me, I’ve had a lot of downtime staring at the hospital room walls):

Social Media & Workplace Technology

• Small Firms, Big Lawyers: Social Media and Breast Implants – from Jay Shepherd at Above The Law

• Using Social Media in Union Organizing – from Workplace Prof Blog

• Overlawyering and Social Media – from Legal Developments In Non-Competition Agreements

• Facebook Business Etiquette: Why You Shouldn’t Friend Your Boss – from CBS MoneyWatch

• A Teachable Moment: Why Dissing Students on Your Blog Isn’t a Good Idea – from TLNT

• Employees and Social Media: Empower and Reward them, or Fear Them – from Social Media Today

• Insurance For Social Media Users? – from Social Media Employment Law Blog

• Social Media Posting Gets Firefighter Fired – from Alabama HR Law

• Yes, you CAN discipline employees who abuse social media – from The Employer Handbook Blog

• Could Your Firm’s E-Mail Policy Run Afoul of the Federal Wiretap Act? – from EDD Blog Online

• Eighth Circuit declares RAZR a computer under federal law – from Engadget Mobile

• Juror Study Shows More of a “BlackBerry Effect” Than a “CSI Effect” – from Ride The Lightning

Discrimination

• Screening Out Unemployed Job Seekers? You May Be Breaking the Law – from the Evil HR Lady, writing at BNET

• The Cases Companies Are Watching: The Cat’s Paw Cases – from Employment & the Law

• Harassment in the hot tub: even bizarre cases require a measured response – from Donna Seale’s Human Rights in the Workplace

• Supreme Court Upholds “Relative” Retaliation Claim; Avoids Setting “Bright Line” Rule — Part II, Assessing Thompson Decision’s Significance – from George's Employment Blawg

• New EEOC Budgetary Request To Congress Portends Increased Governmental Litigation In 2011/2012 – from Workplace Class Action Litigation

• Examining Questions of Disparate Impact – from Stephanie Thomas’s Proactive Employer Blog

Wage & Hour

• New Bill Would Raise Minimum Wage for Tipped Employees – from Maryland Employment Law Developments

• Did Employer's Constant Phone Calls to Employee Violate FMLA Rights? – from Wisconsin Employment & Labor Law Blog

• Did supervisor's offhand remark amount to approval of FMLA leave? – from Stephen Meyer’s HR Cafe

• The WARN Act – Ignorance of the Law is Not a Defense! – from CPEhr

• Fog Still Shrouds The Bridge To Justice – from Wage and Hour Laws Blog

• Ninth Circuit Issues Strong Rebuke to Department of Labor, Upholds Outside Sales Exemption for Pharmaceutical Sales Representatives – from Wage & Hour Counsel

• 9th Cir.: Notwithstanding DOL’s Position Otherwise, Pharmaceutical Reps (PSRs) Are “Outside Sales” Exempt – from Overtime Law Blog

• You Learn Something New Everyday – from Michael Haberman’s Omega HR Solutions

• Dick’s Sporting Goods Settles Wage And Hour Violation Case For $15 Million – from Overtime Lawyer Blog

• Wage Hour Issues For New Companies: A Puzzlement – from Wage & Hour - Development & Highlights

Labor Relations

• NFL v. Players Association - NLRB Complaint – from Philip Miles’s Lawffice Space

• NLRB Continues Aggressive Campaign – from Employer Law Report

• The Battle Over Public Sector Collective Bargaining Begins – from Vorys on Labor

• House Subcommittee Addresses Direction of the NLRB – from Washington D.C. Employment Law Update

• Amendment to Defund National Labor Relations Board Fails House Floor Vote – from Seth Borden’s Labor Relations Today

HR and Employee Relations 

• Smoke & Mirrors - Beware of the “Newest Trend” on Smoker-Free Workplaces in Connecticut – from Daniel Schwartz’s Connecticut Employment Law Blog

• More Employers Resorting to No-Nicotine Hiring Policies – from World of Work

• Health-Care Employers Who Don’t Hire Smokers – from Molly DiBianca’s Delaware Employment Law Blog

• Do You Still Hire Smokers? – from You’re the Boss Blog

• Top Ten Employment Laws You Think Exist – That Don’t – from Screw You Guys, I'm Going Home

• Fred Has a Very Bad Day (Termination Checklist and Guide) – from World of Work

• Lack of A Background Check May Leave An Employer Liable For Negligent Hiring – from Minnesota Labor & Employment Law Blog

• Employees In A Pickle Over Office Lunches – from Workplace Diva

• Alleged Rapist Case Another Black Eye for CORI Criminal Background Check – from employeescreenIQ 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.