WIRTW #168 (the Tiger blood … Winning … Whatever … edition)

My god, I tried to avoid Charlie Sheen this week. Yet, here’s my fourth Sheen-related post in the last four days. I guess you can’t avoid the inevitable, especially when there’s $100 million at stake. In fact, Sheen’s been a popular topic around the blawgosphere:

• Wait. Charlie Sheen Has Essential Duties? A Legal Look at His Termination Letters – from Daniel Schwartz’s Connecticut Employment Law Blog
• Charlie Sheen – from LaborRelated
• Employment Law Hits Hollywood – from the Manpower Employment Blawg
• Charlie Sheen and “Moral Turpitude” – from Koncision
• Get Ready for the Charlie Sheen Employment Litigation – from New York City Employment Lawyer
• All That’s Wrong With Social Media I Learned from Charlie Sheen – from Social Media Today
• Deadspin Publishes Charlie Sheen’s Phone Number – from The Not-So Private Parts

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

Discrimination

• Ensuring Your Wellness Programs Do Not Violate GINA – from Delaware Employment Law Blog
• Discrimination in Decisions About Near-Future and Far-Future Events – from Stephanie Thomas’s The Proactive Employer Blog
• What has the Supreme Court Done to Employer Investigations? – from Philip Miles’s Lawffice Space
• As The EEOC World Turns In 2011 – from Hunton Employment & Labor Law Perspectives™
• Supreme Court: Check before taking a supervisor’s word on discipline – from HR Cafe
• Creating A Split With the Second Circuit, The Sixth Circuit Approves Sick Leave Policies That May Reveal A Disability To A Supervisor – from Sixth Circuit Appellate Blog
• Workforce Management on sexual orientation at work – from David Yamada’s Minding the Workplace

Social Media & Workplace Technology

• OMG! Chrysler’s Twitter account drops the F-Bomb – from Eric Meyer’s The Employer Handbook Blog
• Judge Rules Facebook Won’t Be the New Frontier In Debt Collection – from Molly DiBianca’s Going Paperless
• Restrictive Social Media Policies Lead To a Better Union Case – from TLNT
• Judges use Facebook to research litigants – from Internet Cases
• Is it Really Illegal to Require an Applicant or Employee to Disclose her Password to a “Friends-Only” Facebook Page? – from Workplace Privacy Counsel
• Do You Check Facebook When Hiring? – from Nolo’s Employment Law Blog
• Why You Could Be Breaking The Law By Researching Job Candidates Online – from Business Insider
• Developing a Social Media Policy—Dos and Don’ts – from Labor & Employment Law Perspectives
• These Are The Emails Jim Tressel Sent While Being Really Serious – from Deadspin
• What the iPad 2 Means for Lawyers – from The Mac Lawyer

Labor Relations

• 10 Labor Relations Resources for HR – from The Human Race Horses
• Secretly taping the boss: Is there a problem? – from Michigan Employment Law Connection
• NLRB Explains Its Google Ads, Discontinuation of Practice – from Labor Relations Today
• National Right to Work Act Reintroduced in the Senate – from Washington DC Employment Law Update
• Is the Board Ready to Use this Union Access Case to Overturn Register Guard? – from Labor Relations Update
• The NLRB Solicits Amicus Briefs On Whether Witness NLRB invites briefs on witness statements – from LawMemo Employment Law Blog
• Union Myths – from Real Clear Politics
• Public Sector Employees Earn More than their Counterparts in the Private Sector – from LaborPains
• The Decertification Strategy for NFLPA – from Workplace Prof Blog

Wage & Hour

• Recordkeeping Under the FLSA – from Michael Haberman’s Omega HR Solutions
• Could You Be Accused of “Wage Theft”? – from Compensation Café
• The Legality Of Reducing Wage Rate To “Avoid” Overtime: The Supreme Court May Decide – from Wage & Hour - Development & Highlights
• Independent Contractor or Employee? – from HR Lawyer’s Blog

Litigation & Employee Relations

• The ins and out of tortious interference allegations after employees depart – from Work Matters
• Virginia Supreme Court Reverses Damages Award For Violation Of Nondisparagement Clause – from Laconic Law Blog
• It’s Not About the Law – from Jay Shepherd at Above the Law
• U.S. Chamber of Commerce Study Ranks States by Employment Regulations – from HR.BLR.com
• Would You Hire OJ? – from The HR Capitalist, Kris Dunn

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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.

I love it when I’m right: Charlie Sheen sues for disability discrimination

Hot off the presses, TMZ has a copy of the lawsuit Charlie Sheen filed against Chuck Lorre and Warner Brothers. And, as I discussed Tuesday, Sheen is alleging disability discrimination.

Sheen also alleges retaliation, in addition to various contractual theories. Let the fun begin!

Thanks to Eric Meyer (via twitter), for pointing me to this filing.

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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.

EEOC to review “significant regulations”; do you smell trouble?

According to the EEOC, it is “beginning a new, periodic retrospective review of its existing significant regulations to determine whether any such regulations should be modified, streamlined, expanded, or repealed, to make the EEOC’s regulatory program more effective and/or less burdensome in achieving its regulatory objectives.” Huh? Cutting through the government-speak, I think the EEOC is trying to say that it is looking to rewrite its regulations. Given the current political tenor of this agency, does this concern you? It certainly concerns me.

Do you have suggestions for the EEOC on why a regulation should be modified, streamlined, expanded, or repealed; data on the costs and benefits of a regulation; or how the EEOC could better achieve a regulation’s objective? If so, I suggest you email them to:

Public.Comments.RegulatoryReview@eeoc.gov

You can be sure that 1) employee advocates will be submitting their thoughts, and 2) the agency has its own agenda to further. Employers, make your voice heard in what may be a significant re-writing of the EEOC’s interpretation of Title VII, the ADEA, and other civil rights 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.

Charlie Sheen and the National Labor Relations Board

Do you remember Dawnmarie Souza? She was the employee on whose behalf the NLRB issued a complaint (which it later settled), claiming that the National Labor Relations Act protects a Facebook post a concerted activity. According to Time, the company fired Souza for “serious violations,” including “several incidents of allegedly rude behavior.” The company’s discovery of Souza’s Facebook post likening her boss to “various genital parts” was the last straw.

On Monday, CBS fired Charlie Sheen, in part because he made public disparaging comments about his boss. Charlie Sheen is a member of SAG. He also has his own “performance” problems. Should he file an unfair labor practice charge with the NLRB, based on his own protected, concerted activity—for example, calling his boss a “stupid, stupid little man and a pussy punk”; a “piece of  shit”; a “turd”; and a “clown”?

Or, is Charlie Sheen being able to sue his employer over these comments as ridiculous as Dawnmarie Souza being able to sue hers? Just saying.

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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.

Does CBS “regard” Charlie Sheen as disabled under the ADA?

Yesterday, CBS finally pulled the plug on Charlie Sheen. I go back and forth whether he’s legitimately off his rocker, or he’s pulling off a calculated publicity stunt. Either way, CBS had enough and officially terminated him. TMZ published CBS’s 21-page termination letter [pdf].

Sheen’s agreement provides for termination in the event of “Incapacity,” including “mental disabilities, which due to the unique nature of Performer’s Obligations, are not subject to reasonable accommodation and which render Performer unable to perform the essential duties of Performer’s position.” Here’s how CBS’s lawyers discussed the touchy issue of terminating an employee with an apparent mental illness.

The facts establish that there was a serious material change in Mr. Sheen’s attributes that rendered him unwilling or unable to perform his essential duties. As the lead actor in a successful television comedy, Mr. Sheen’s essential duties encompass more than just showing up and delivering lines. One essential duty is working cooperatively and creatively with the other persons critical to the production. Mr. Sheen went from an actor who performed those duties to an individual whose self-destructive conduct resulted in his hospitalization, his inability to work at all for a period and the rapid erosion of the cooperative and creative process necessary to produce the Show. Indeed,

Mr. Sheen’s shocking behavior has continued since production was halted, further confirming such incapacity and/or a serious health condition.

CBS disposed of the contractual argument, but has it opened itself up to a claim under the ADA?

The ADA (as amended by the ADA Amendments Act), not only covers employees with actual disabilities, but also employees that an employer “regards as” disabled. There is no doubt from reading the termination letter that CBS fired Sheen because it “regarded him” as having a mental impairment. The legality of this termination under the ADA will hinge on whether Sheen is a “qualified individual”—that is, can he perform the essential functions of his position with or without reasonable accommodation. CBS clearly believes the answer is “no.”

Given the amount of money at stake, a court or arbitrator will have the final say. I suspect, however, that given Sheen’s public tirades about his boss, coupled with his public displays of incoherence (real or calculated), he is going to have a tough row to hoe in litigation.

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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.

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.

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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 #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

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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.