Follow these 6 easy steps to avoid harassment and retaliation liability

Do you want to avoid harassment and retaliation liability at your company? Here are six easy steps to follow:

1. Have a sexual harassment policy, which includes procedures for employees to complain about harassment.
2. Train all employees on the harassment policy.
3. Make sure your human resources manager knows the definition of sexual harassment.
4. Do not let a manager expose his genitals to female employees, and force one to place her hand on his private parts.
5. Do not require women to participate in a “kissing” or “smooching” club to receive the sales leads and accounts necessary to earn commissions.
6. Do not fire women who reject managers’ sexual advances and complain about them.

According to the EEOC, a Memphis company failed in each of these steps. The result—a $1.5 million verdict.

---

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 #167 (the fable-ulous edition)

Earlier this week, the Supreme Court issued what I believe will end up being one the most significant employment decisions of the last decade—Staub v. Proctor Hospital. This case has to ability to gut summary judgment in any discrimination case (except age) in which a supervisor is accused of having a discriminatory animus. (And are there any discrimination cases in which a supervisor does not have some role in the adverse action?) Many of my blogging brethren have chimed in on this case. Here’s a survey of the 10 best I’ve read:

• With a Friend Like Justice Scalia ... Cat’s Paw Decision Not Very Employer Friendly – from Michael Fox’s Jottings By An Employer’s Lawyer
• US Supreme Court Holds Employers May Be Liable Under “Cat's Paw” Theory – from California Workforce Resource Blog
• U.S. Supreme Court UNANIMOUSLY green-lights even MORE discrimination claims – from The Employer Handbook Blog
• U.S. Supreme Court Allows “Cat's Paw” Theory of Liability in Discrimination Cases – from Daniel Schwartz’s Connecticut Employment Law Blog
• Employers Liable for Supervisor Bias – from Tim Eavenson’s Current Employment
• Supreme Court Upholds “Cat's Paw” Theory In Employment Discrimination Cases – from World of Work
• Cat’s Paw is In: Supreme Court Issues Unanimous Pro-Employee Decision in Staub v. Proctor – from New York City Employment Lawyer
• The Effect of a Cat’s Paw on Social Media and Employment Law – from Social Media Employment Law Blog
• Supreme Court Decides Cat’s Paw Issue in Staub v. Proctor Hospital. Part I — The Decision – from George’s Employment Blawg
• Opinion recap: “Cat’s paw” theory upheld – from SCOTUSblog

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

Social Media & Workplace Technology

• Sexting and Other Bad Career Moves – from Evil HR Lady, Suzanne Lucas
• Lawyer Fired For Comment Made on Twitter – from Molly DiBianca’s Going Paperless
• Gay Teacher Terminated For Blog Post on Same-Sex Relationship – from Joe’s HR and Benefits Blog
• Facebook and employers: new ways to get information about employees – from John Holmquist’s Michigan Employment Law Connection
• Social Media and Employment Law: Six Things You Need To Know – from Monster Thinking
• Md. Agency Suspends Facebook-Password Policy – from Delaware Employment Law Blog
• Who Owns Your Contacts and Communications? – from Social Media Today
• Update, Update, Update Your Document Retention Policies! – from Social Networking Law Blog
• On the temptation to declare “email bankruptcy” – from Bob Sutton
• Cosmic Law and social media – from Jay Sherherd’s Gruntled Employees
• Posting Patient Photos—The Newest Example of Social Media Implications for the Workplace – from Digital Workplace Blog
• What is a reasonable cost that should count as loss under the Computer Fraud and Abuse Act? – from Internet Cases

Labor Law

• Private vs Public vs Federal Unions: Weighing in On Wisconsin – from Michael Haberman’s Omega HR Solutions
• NLRB Proposed Rule Draws 6500 Comments, Controversy – from Vorys on Labor
• Poll Shows Majority Support Public Employee Unions and Collective Bargaining – from George’s Employment Blawg
• White House to NLRB: Cool the Rhetoric – from Workplace Prof Blog
• Are Unions Obsolete? – from Manpower Employment Blawg

Discrimination

• Training video made things worse, cost employer $930,000 – from Stephen Meyer’s HR Cafe
• We Fought the EEOC, and We Won – from Alabama Employment Law Report
• Must “Adverse Employment Action” be Tangible? – from Wyatt Employment Law Report
• What’s Wrong With “Diversity” Preferences For Whites? – from Discriminations

HR & Employee Relations

• March Mayhem Bracket For Employers: Biggest Workplace Headaches – from Fisher & Phillips’s Labor Letter
• Let the Madness Begin – from Employment Essentials
• Professionalism and HR – from Sindy Warren at the Warren & Hays Employment Law Blog
• The Workplace Bill of Rights by Workplace Fairness – from David Yamada’s Minding the Workplace
• An Alternative to Indemnification Language for Koncision’s Confidentiality Agreement – from Koncision
• The Key to the Defendant Apology: Say What You Mean, and Mean What You Say – from Litigation PostScript. Persuasion Strategies for Litigators
• Job Descriptions: Administrative Hassle or Best Friend? – from Restaurant Law Blog
• Workplace (aka “fake”) spouses—a lot of hype, but here’s how to avoid problems. – from Employment and Labor Insider

Wage & Hour

• Not all Home Depot Assistant Managers are Created Equal … or at least Similarly Situated – from The Wage and Hour Litigation Blog
• Court of Appeal Limits Employers’ Discretion to Set the Workweek/Workday – from What’s New in Employment Law?
• SCOTUS Denies Cert in Novartis FLSA Case – from Philip Miles’s Lawffice Space
• Warehouse Workers Allege Wage Theft, Demand Pay Stubs – from Workplace Fairness
• Federal Judge Finds Two Dollar General Assistant Store Managers To Be Exempt Executives – from Wage and Hour Law Update
• City of Columbus May Require Employees Returning from Sick Leave to Provide Doctor's Note – from Employer Law Report
• ABA’s 2010 Family and Medical Leave Act Report is Out – from Wisconsin Employment & Labor Law Blog

---

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.

Are businesses really asking for age on employment applications?

I came across an article yesterday on The Huffington Post which says that many large retailers are requiring job applicants to disclose their ages as part of the application process. Are businesses really asking for age on employment applications?

While there’s nothing per se illegal about asking for age on a job application, why ask for certain information that’s illegal to consider? Simply, you should not ask for age, or for any information that suggests age: date of birth, year of high school or college graduation, or anticipated retirement age. The only age-related questions you should ask on job application is whether the applicant is age 18 or over and eligible to work. Anything more crosses the line, and will help a rejected candidate create an inference of discrimination. Why take that risk?

For more information on illegal questions during the hiring process, see Avoid hidden interviewing traps.

Do you want to know if your job application and other hiring processes are legal? Consider KJK’s proprietary (and free) HR and employment law 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.

Listen to your lawyer! (It might save you money)

Pure Energy sought an opinion from its labor and employment counsel whether its practice of paying its employees a day rate for all hours worked violated the Fair Labor Standards Act. Pure Energy, however, ignored the opinion of its attorney of the steps it needed to take for its date rate to pass muster under the FLSA. In Mumby v. Pure Energy Servs. (USA), Inc. (2/22/2011), the 10th Circuit concluded that the employer’s ignoring of its attorney’s advice constituted a willful violation of the FLSA:

Although consultation with an attorney may help prove that an employer lacked willfulness, such a consultation is, by itself, insufficient to require a finding in favor of the employer….

In fact, Pure Energy did not track its field employees' hours to ensure compliance with the FLSA or with the guidance provided… [A]ny overtime Pure Energy did pay was calculated using its erroneous “day rate” without regard for any weekly hours worked in excess of forty.

Pure Energy made no real changes to its compensation policy…. Indeed, without tracking the number of hours worked by each field employee, it was virtually impossible for Pure Energy to determine whether it was complying with [the] advice, let alone the requirements imposed under the FLSA.

Because the company sought, and then ignored, the advice of an attorney, the court concluded its violation was willful. The willful violation subjected the company to the FLSA’s three-year statute of limitations, as opposed to the non-willful two years, costing it an extra year of damages.

The moral of the story: If you hire an attorney, have the good sense to follow the advice you paid for.

[Hat tip: Overtime Law Blog]

---

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.

There’s No Place Like Home

After 19 days, 2 procedures, 2 N/G tubes, 1 PICC line, 3 x-rays, 3 ultrasounds, dozens of needle sticks and blood draws, 1 blood transfusion, 16 IV feedings, more than 50 trips back and forth to the Cleveland Clinic, 38 sleepless nights between me and my wife, and too many doctors, nurses, and other medical professionals to keep track of, we brought our son home yesterday. He is home, happy, and, most importantly, healthy.

Thank you to everyone who took the time to share a thought—here, via Twitter, Facebook, or by email. You might not think it was a big deal, but every message I received meant a lot, and taught me a lesson on compassion and caring that I will never forget and plan on repaying at every opportunity. For starters, I’ll be donating blood to pay back the anonymous donor that made my son’s transfusion possible.

Finally, keep an eye on the blog, my Twitter feed, and my new Facebook page. Once I collect all of our medical bills, I’ll be running a contest to see who comes closest, without going over, to the total, unadjusted cost of a 19-day hospital stay at the Cleveland Clinic. A prize of a yet to be determined nature awaits.

Back to regularly scheduled employment law programming tomorrow, with a post on why you should listen to the advice of your employment attorney.

---

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 “cat’s paw” lives: Supreme Court issues broad victory for employees in Staub v. Proctor Hospital

This morning, the Supreme Court issued its decision in Staub v. Proctor Hospital, which asked whether the “cat’s paw” is a valid theory of liability in discrimination cases. The “cat’s paw” seeks to hold an employer liable for the discriminatory animus of an employee who played no role in the decision, but nevertheless exerted some degree of influence over the ultimate decision maker.

Staub is a huge victory for employees. A unanimous opinion written by Justice Scalia whole-heartedly endorsed the “cat’s paw”:

We therefore hold that if a supervisor performs an act motivated by antimilitary animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable under USERRA.

The Court also declined to immunize employers who undertake their own independent investigation of the circumstances leading to the adverse employment action. Instead, the Court only excuses reliance on the biased report of a supervisor if the employer independently determines that the decision was entirely justified apart from the supervisor’s input:

Thus, if the employer’s investigation results in an adverse action for reasons unrelated to the supervisor’s original biased action (by the terms of USERRA it is the employer’s burden to establish that), then the employer will not be liable. But the supervisor’s biased report may remain a causal factor if the independent investigation takes it into account without determining that the adverse action was, apart from the supervisor’s recommendation, entirely justified.

While the Court limited its holding to USERRA, it pointed out that USERRA’s “motivating factor” causation standard is “very similar to Title VII.” It will be difficult for lower court’s to avoid this broad application of the cat’s paw in Title VII (and likely ADA) cases. The only hold-out will be ADEA cases, which, in light of Gross v. FBL Financial Services, Inc., requires “but for” causation.

I have two initial reactions to this opinion:

1. Staub is a broad, sweeping win for employees, which leaves employers with little protection against the discriminatory animus of those who play no role in the decision making process.
2. The Court’s holding hinges on ideals such as “intent” and “proximate cause,” which are almost always fact-based inquiries. Because it is very difficult for an employer to win summary judgment on these issues, the Court has turned nearly every “cat’s paw” case into a jury case—an expensive proposition for employers.

Staub v. Proctor Hospital [pdf] is available for download directly from the Supreme Court’s website via this link.

[Hat tip: Workplace Prof Blog]

Does your lawyer know Facebook?

Last week, Forbes.com’s privacy blogger, Kashmir Hill, asked her readers a very simple question, does your lawyer know how to use Facebook? Her conclusion, after scouring news stories about attorneys’ use of Facebook in jury selection: “If your lawyer isn’t Facebook and Google-search savvy, you’re at a disadvantage. So check those skills (along with doing your own online stalking) before hiring him or her.” It’s not only jury selection that clients should be concerned about, but also witness investigations, other informal background searches, and formal subpoenas and discovery requests.

Similarly last week, Gruntled Employees discussed the need for businesses looking for a social medial policy to hire lawyers who understand social media:

But more often than not, [employment lawyers] don’t know much about social media. Which is a problem. When I see an announcement for a lawyer seminar on social media, I check out the bios of the lawyers presenting to see what their social-media creds are. I look to see what their blogs are called, how many Twitter followers they have, and how active they are on LinkedIn…. And if they’re not active in social media, they're much less likely to understand what makes social media the human phenomenon that it’s become. Which means that they’re more likely to tell their corporate clients that they should fear social media, and that they need prohibitive policies….

In other words, just like you wouldn’t ask a dermatologist to perform heart surgery, you shouldn’t hire a non-tweeting lawyer to draft a social media policy.

While we’re on the subject of lawyers and social media, this is as good a time as any to mention that the Ohio Employer’s Law Blog has its very own Facebook Page. Please pop on over and give me a “like.” It will enable you to receive all of the blog’s posts on your Facebook wall, as well as other contents that supplements the blog (tweets, documents available for download, and other thoughts).

---

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.