Thursday, March 31, 2011

Today is the final Day for Medical Costs Price is Right


Today is the last day to enter my little Medical Costs Price Is Right Contest (official rules and pictures of the fabulous prize package here). Here are the bids so far:

  • $10,000
  • $62,000
  • $64,250
  • $92,750
  • $117,684.34
  • $121,000
  • $140,000
  • $192,000
  • $234,000
  • $249,999
  • $265,000
  • $275,000
  • $386,000
  • $389,750.19

Remember, the closest to the actual, retail, non-insurance adjusted price of my son’s 19-day stay at the Cleveland Clinic wins. Those of you waiting until the last minute to underbid someone else now have your chance. The contest closes at 11:59 p.m. tonight, so enter now (but not often—one entry per person). I’ll announce the winner tomorrow.


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.

Wednesday, March 30, 2011

Reading the tea leaves: The Dukes v. Wal-Mart oral argument


Today, the Supreme Court heard oral argument in Dukes v. Wal-Mart (transcript available here). Dukes will determine the propriety the certification of the largest sex-discrimination class action ever—a nationwide class of 1.5 million employees. I've previously covered the background of this case. If you have any doubts about the potential significance of Dukes, consider that 66 uninvolved businesses and lobbying groups filed 28 different briefs with the Court advocating for one side or the other. I’m not sure of the record for these filings, but Dukes has to be close.

According to Bloomberg Businessweek, “The suit, citing what are now dated figures from 2001, contends that women are grossly underrepresented among managers, holding just 14 percent of store manager positions compared with more than 80 percent of lower-ranking supervisory jobs that are paid by the hour.” According to Wal-Mart, however, the certified class “includes too many women with too many different positions in its 3,400 stores across the country. [I]ts policies prohibit discrimination and that most management decisions are made at the store and regional levels, not at its Bentonville, Ark., headquarters.”

In pre-gaming today’s oral argument, the Los Angeles Times not only framed the issues but also the importance of this case:

The court’s ruling could be the most far-reaching decision on job bias in more than a decade, according to experts on both sides. A win for [the plaintiffs] could open the door for the broader use of statistics to prove job discrimination—and not just on behalf of women, but also for minorities or persons with disabilities.

However, a win for Wal-Mart could deal a death blow to nationwide job-bias suits by ruling that employees who work in different stores and hold different jobs do not have enough in common to be a class.

Reading the tea leaves, I predict a resounding Wal-Mart victory at the Supreme Court. It is no surprise that given the political makeup of the Court, Justice Kennedy is the swing vote in close cases. As Justice Kennedy goes, so goes the majority. Thus, the following exchange between Justice Kennedy and the plaintiff’s lawyer signals that employees’ string of victories in employment cases may be coming to an end:

   Q: It’s not clear to me: What is the unlawful policy that Wal-Mart has adopted, under your theory of the case?

   A: Justice Kennedy, our theory is that Wal-Mart provided to its managers unchecked discretion in the way that this Court’s Watson decision addressed that was used to pay women less than men who were doing the same work in the same – the same facilities at the same time, even though – though those women had more seniority and higher performance, and provided fewer opportunities for promotion than women because of sex.

   Q: It’s – it’s hard for me to see that the – your complaint faces in two directions. Number one, you said this is a culture where Arkansas knows, the headquarters knows, everything that’s going on. Then in the next breath, you say, well, now these supervisors have too much discretion. It seems to me there’s an inconsistency there, and I’m just not sure what the unlawful policy is.

Suffice it to say that if the key vote on the Court does not fully understand the plainitffs’ argument, Wal-Mart is feeling pretty good about its chances right now.


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.

Tuesday, March 29, 2011

Ohio House considering comp time bill (HB 61)


One of the biggest wage and hour mistakes a company can make is assuming that it is legal to pay comp time in lieu of overtime for any hours employees work in excess of 40 in a work week. Make no mistake, with the exception of state and local governments, it is illegal to pay comp time as a replacement for overtime wages.

Ohio House Bill 61, currently under consideration, is trying to change this rule for Ohio’s small businesses. HB 61 would allow workers to bank up to 240 hours of comp time per year. At the end of a year, employers would have to pay out overtime wages for any unused comp time. Covered workers would have the right to chose between comp time and overtime pay. Employers would be prohibited from requiring workers to elect comp time, in addition to threatening, intimidating, or firing workers who choose overtime wages.

Here’s the catch: this bill only applies to those small businesses covered by Ohio’s Fair Wage Standards Act but not covered by the Federal Fair Labor Standards Act—those that have gross annual gross sales between $150,000 and $499,999.99. Nevertheless, according to PolitiFact Ohio, this bill has the potential to reach at least 10,000 Ohio small businesses.

HB 61 is a significant move in the right direction to making Ohio a more business-friendly environment. By allowing small businesses the ability to offer comp time to employees, Ohio’s small businesses will be able to provide workplace flexibility that currently does not exist and that employees covet. This benefit will help Ohio attract and maintain the small businesses we need as the backbone of our economic recovery.


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.

Monday, March 28, 2011

The 5 most interesting things about the ADAAA Regulations


Last Friday, the EEOC published its long-awaited (and hotly debated) regulations implementing the Americans with Disabilities Act Amendments Act (ADAAA) [pdf]. The blawgosphere has lit up with extensive summaries. Instead of doing the same, I thought I’d share with my readers what strikes me as the five most interesting things I’ve found in these regulations.

     1. Broad Coverage. In case there is any doubt in anyone’s mind, the purpose of the ADAAA is to make it easier for employees seeking the ADA’s protection to establish a disability within its meaning. In other words, employers, the EEOC, and courts are supposed to interpret the definition of disability “broadly.” As a result, ADA cases will no longer focus whether an employee qualifies as disabled, but instead on the merits of the challenged employment decision. Notwithstanding the breadth of these amendments, groups such as the U.S. Chamber of Commerce and SHRM (registration required) are applauding the EEOC for the pro-business changes incorporated into the regulations.

    2. Individualized Assessments for Medical Conditions. The regulations abolish any notion that certain medical conditions will always qualify as disabilities. Instead, the regulations call for an “individualized assessment” of whether a certain condition “substantially limits a major life activity.” For many conditions, this assessment should be simple and straightforward. For example, deafness, blindness, intellectual disability, partially or completely missing limbs, mobility impairments requiring use of a wheelchair, autism, cancer, cerebral palsy, diabetes, epilepsy, HIV infection, multiple sclerosis, muscular dystrophy, major depressive disorder, bipolar disorder, post-traumatic stress disorder, obsessive-compulsive disorder, and schizophrenia will usually, but not automatically, qualify as disabilities.

     3. Handling of Episodic Conditions and Ameliorative Effects. The current effects of a disability are not the only factors that one considers in determining whether a medical condition is substantially limiting. Impairments that are episodic or in remission—including cancer, epilepsy, hypertension, asthma, diabetes, major depressive disorder, bipolar disorder, and schizophrenia—qualify as disabilities if substantially limiting when active. Additionally, mitigating measures—those that eliminate or reduce the symptoms or impact of an impairment—do not factor into the “substantially limiting” calculus. These mitigating measures include medication, medical equipment and devices, prosthetic limbs, low vision devices (except ordinary eyeglasses or contact lenses), hearing aids, mobility devices, oxygen therapy equipment, use of assistive technology, reasonable accommodations, learned behavioral or adaptive neurological modifications, psychotherapy, behavioral therapy, and physical therapy.

     4. Most Adverse Action Claims Going Forward Will Be “Regarded As” Claims. The ADAAA does not change the statute’s three-pronged approach to defining disability:

  • a physical or mental impairment that substantially limits one or more major life activities (an “actual disability”)
  • a record of a physical or mental impairment that substantially limited a major life activity (a “record of disability”)
  • when a covered entity takes an action prohibited by the ADA because of an actual or perceived impairment that is not both transitory and minor (“regarded as” disabled).

What has changed, however, is the agency’s approach to how these definitions factor into claims brought by employees. There is no rule that an employee must use a particular prong when challenging an employer’s actions. However, because an employer is not required to provide a reasonable accommodation for a “regarded as” disability, an employee claiming a denial of a reasonable accommodation must bring the claim as an “actual disability” claim or a “record of” claim. While an employee can bring an adverse action claim under any of the three definition, the EEOC believes that they should be brought under the “regarded as” prong because of its ease of coverage.

     5. Coverage for Temporary or Short-Lived Impairments. The ADAAA substantially expanded the circumstances in which employers may be liable under the “regarded as” prong by removing the requirement that an employee prove that the perceived impairment substantially limits a major life activity. The only exception to the “regarded as” prong is for “transitory and minor” impairments. “Transitory and minor” is an affirmative defense that employers must prove. It is only a defense, however, to claims brought under the “regarded as” prong. It is not a defense to actual disabilities or a record of disability.


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.

Friday, March 25, 2011

WIRTW #170 (the “Come On Down” edition)


There is still one week left to enter Medical Costs Price Is Right. The bids so far:

  • $10,000
  • $62,000
  • $64,250
  • $92,750
  • $117,684.34
  • $192,000

The official rules, along with a picture of the exiting prize package are here. Remember, there are three ways to enter:

  1. Posting a comment to the original blog post.
  2. Send a reply with your guess to @jonhyman on Twitter, using the hashtag #MedicalCostsPriceIsRight.
  3. Post your guess on the wall of the Ohio Employer’s Law Blog Facebook Page, also using the hashtag #MedicalCostsPriceIsRight.

Happy bidding!

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

Discrimination

Employee Relations & HR

Social Media & Workplace Technology

Wage & Hour

Labor Relations


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.

Thursday, March 24, 2011

BREAKING NEWS: EEOC releases its final regulations interpreting the ADA Amendments Act


Today, the EEOC made available to the public its final regulations interpreting the Americans with Disabilities Amendments Act (ADAAA). The regulations will become official upon their formal publication in tomorrow’s Federal Register. The EEOC is providing a website that collects links to the final regulations, a Q & A on the regulations, a Q & A for small businesses, and a fact sheet discussing the regulations.

I am going to take the weekend to read the regulations, and will share my thoughts and analysis on Monday. In the meantime, Daniel Schwartz, at his Connecticut Employment Law Blog, reports that SHRM has advised its members “that they were pleased with several changes from the draft version.” There is at least some hope that the final regulations will not be as onerous on businesses as originally feared.


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.

How soon is too soon to fire a complaining employee?


More than three year ago, the 6th Circuit concluded that where an adverse employment action occurs very close in time after an employer learns of a protected activity, the temporal proximity between events is significant enough to constitute evidence of a causal connection for the purposes of satisfying a prima facie case of retaliation. Yesterday, in Hill v. Air Tran Airways [pdf], the same court used a three-day gap between a complaint of discrimination and a termination to reverse a trial court’s grant of summary judgment in a retaliation case:
Although prior to the incident on April 10, 2007, Hill had not formally complained about Thornton in over five months, it is undisputed that Hill complained about Thornton only a few days before the termination. Hill complained to Hughes about Thornton on April 10, 2007, the day of the last incident with Thornton and a few days before Hill’s termination on April 13. Hill also complained about Thornton in an email to Hughes on April 10, the same day Hughes recommended Hill’s termination. Although these complaints were informal, they are relevant to an assessment of temporal proximity.
No employee is bulletproof, and employers should not shy away from firing a deserving employee merely because the employee complained about discrimination. Indeed, some employees, seeing the writing on the wall, complain in an effort to save their jobs or create a lawsuit. However, if you are going to terminate an employee close in time to the exercise of protected activity (and three days is pretty close), you should be prepared for the retaliation lawsuit that is likely to follow.

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.