Time to play Medical Costs Price is Right

As many of you know, last month my son spent 19 days in the Cleveland Clinic. Now that he is home and, most importantly, healthy, I thought we’d have a little fun, while at the same time providing an editorial on the ridiculously high cost of American medical services. It’s time to play Medical Costs Price is Right.

Here are the rules:

1. Anyone who is 18 years of age or older, a legal U.S. resident, and has a valid email address is eligible to enter.
2. Current KJK employees and their immediate family members are not eligible to enter.
3. No purchase of anything (including legal services) is required to enter.
4. Your bid will be for the total, non-insurance adjusted, cost of a 19-day inpatient stay at the Cleveland Clinic, including all procedures, doctors, tests, and labs:
   • 19 days in the pediatric ward at the Cleveland Clinic Main Campus
   • 1 endoscopy (with general anesthesia)
   • 1 PICC line insertion (with general anesthesia)
   • Professional fees for gastroenterology, surgery, cardiology, and hematology
   • Emergency room fees
   • 3 x-rays
   • 1 ultrasound
   • 2 echocardiograms
   • 16 days of intravenous feedings
   • Laboratory charges for blood work
5. The closest bid that does not go over the total cost wins.
6. Bids will be accepted until March 31 at 11:59 p.m.
7. There are 3 ways to enter:
   • Post a comment with your guess to this blog post. I will not accept any anonymous comments as an entry.
   • Send a reply with your guess to @jonhyman on Twitter, using the hashtag #MedicalCostsPriceIsRight.
   • Post your guess on the wall of the Ohio Employer’s Law Blog Facebook Page, also using the hashtag #MedicalCostsPriceIsRight.
8. Each person is only allowed one entry total, no matter how the guess is submitted. I will disqualify anyone that submits more than one guess.
9. I will reject any bids that do not follow these rules.
10. The winning bid must provide a valid address within one week of my announcing of the winner. Otherwise, I reserve the right to select the next closest bid that did not go over the total cost.
11. If no bids are submitted that do not go over the total cost, I reserve the right to select the closest overall bid to the total cost.

What will the winner get?

A box of KJK-branded Pro V1s and a KJK-branded water bottle (I never promised a car).

Good luck and happy bidding.

---

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.

Understanding the legal issues of the NFL labor problems

At 11:59 p.m. Friday night, the collective bargaining agreement between the NFL and the NFLPA expired, and the owners locked out its players. We’ve all heard about lockouts before, but what does all this mean? Gabriel Feldman, at the Huffington Post, provides the answer for those unaccustomed to the ins and outs of federal labor law:

A lockout is the “withholding of employment by an employer from its employees for the purpose of either resisting their demands or gaining a concession from them.” In other words, a lockout is when an employer refuses to let workers work, and therefore get paid, as a form of leverage. A lockout is prohibited if it is motivated primarily as an attempt to discourage union membership or interfere with employees’ organizational rights. Lockouts can occur before or after a bargaining impasse has been reached.

Mr. Feldman offers answers to 25 other labor law questions necessary to understand the NFL’s labor strife, including:

• What is decertification?
• What is the process for decertification?
• Why do the players have to break up their union to bring an antitrust suit?
• And, would the NFL owners be permitted to lock out Brett Favre, and only Brett Favre?

The article is mandatory reading for anyone looking to understand the basics of the complex issues behind the NFL’s ongoing and evolving labor woes.

---

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 #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

---

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.

---

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.

---

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.

---

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.

---

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.