WIRTW #172 (the juxtaposition edition)

These two stories came through my feed reader this week, and I thought that together they tell an interesting story:

Why Is It So Hard to Get a Low Paying Job? – from Suzanne Lucas, the Evil HR Lady

and

McDonald’s will hold hiring day April 19 to fill 50,000 jobs – from USAToday

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

Discrimination

• Poor, Pregnant, and Fired: Caregiver Discrimination Against Low-Wage Workers – from Workplace Fairness
• Say “cheese” – from Michael Maslanka’s Work Matters
• Can the EEOC legally recruit claimants over the radio? – from Eric Meyer’s The Employer Handbook Blog
• Soft Porn in the Workplace can be Sexual Harassment – from Maryland Employment Law Developments
• Damning Gay Co-Workers to Hell – from Philip Miles’s Lawffice Space
• Real Men Don’t Harass Other Men — And If They Do, the Employer Pays the Damages – from Joe’s HR and Benefits Blog
• EEOC’s “Shoot-First, Aim Later” Tactics Result In $751,942 Sanction – from Workplace Class Action Litigation
• Pennsylvania Federal Court Holds There are No Mixed-Motive Retaliation Claims Under Title VII – from Wisconsin Employment & Labor Law Blog
• Supreme Court Issues Victory for Employees in Anti-retaliation Claims – from The L•E•Jer
• Supreme Court to consider scope of ministerial exemption – from Walter Olson’s Overlawyered
• Can an Employer in the Employment Application Shorten the Statute of Limitations for Anti-Discrimination Claims? – from Fitzpatrick on Employment Law
• Summary of the EEOC’s Final Regulations for the ADAAA – What Companies Should Know (Part One) – from Employment & the Law
• New ADAAA regs: the untold story!!! – from Employment and Labor Insider
• What the Final Regulations on Implementing the ADAAA Mean For Employers – from Stephanie Thomas’s The Proactive Employer Blog

Social Media

• Are Managers Gun-Shy About Disciplining Reckless Online Behavior? – from TLNT
• The Era of Corp Social Media Discrimination – from Blogging 4 Jobs
• Can Employers in an FLSA Overtime Case Issue Subpoenas Concerning an Employee’s Social Media, Banking, and Texting Activities? – from Labor & Employment Law Perspectives
• Social Media in the Workplace - The Social Media Policy – from LE Blog
• Taking A Chance With Workplace Gambling – from Social Media Employment Law Blog
• How to Avoid a Social Media Lawsuit – from INC.
• Social Media and Good Manners – from Social Media Today
• Tackling the informal nature of social media – from Raising the HR Bar
• MySpace evidence was inadmissible hearsay – from Internet Cases

Employee Relations & HR

• The Joy of a National Championship: Employment Law Lessons From the UConn Huskies – from Daniel Schwartz’s Connecticut Employment Law Blog
• I Secretly Taped My Boss And Now I Want to Sue – from Screw You Guys, I'm Going Home
• Adding to the Employer's Arsenal - Garden Leave – from Rob Radcliff’s Smooth Transitions
• Top 10 Employment Background Check Issues – from employeescreenIQ Blog
• Should Preventing Work Place Violence Yield to an Employee’s Right to Bear Arms? – from Michigan Employment Law Advisor
• Three best practices for terminating insubordinates – from HR Cafe
• Hiring in the Recovery: Time for Some Honest Answers – from Michael Haberman’s Omega HR Solutions
• Why Employees Don’t Complain – from YourHRGuy.com
• Legalities? Here's How References Work in the Real World.... – from The HR Capitalist, Kris Dunn

Wage & Hour

• DOL “Updates” Mangle Longstanding FLSA Principles – from Wage and Hour Laws Blog
• DOL’s FLSA Rulemaking Limits Fluctuating Workweek, Tip Credit – from The Wage and Hour Litigation Blog
• New IRS Guidance for Health Care Reform: More News You Can Use – from Marc Alifanz at World of Work
• Are Managers Who Perform Non-Managerial Duties Entitled to Overtime Pay? – from Virginia Employment Law Journal
• Play Ball! An FMLA Lineup That Keeps You in the Pennant Race – from FMLA Insights
• Sick Leave Laws: Coming to a Town Near You! – from Labor Relations Institute
• FindLaw Legal Bloggers Sue for Overtime Pay – from ABA Journal Daily News

Labor Relations

• What to expect in Tom Brady vs. NFL injunction hearing – from Michael McCann at SI.com
• Governor Kasich Signs Senate Bill 5 - Referendum Battle Expected – from Employer Law Report
• Ohio Unions to Mandate More Money From Members to Fund SB5 Campaign Fight? – from LaborUnionReport.com
• Handbook Rules Alone May Overturn Decertification Election: NLRB – from Labor Relations Update

SpongeBob

• Career lessons from SpongeBob – from CareerDiva Eve Tahmincioglu

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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.

When does 50 not equal 50?

Most people think of “50” as the magic number for the FMLA. “Oh, we have 50 employees, so we now have to comply with the FMLA,” is a popular refrain among HR departments. It’s not that simple.

The FMLA has two different rules that must be met before you have to offer FMLA leave to an employee—coverage and eligibility. Coverage applies to the employer and eligibility applies to the employee. They both have the magic number 50 as a key component, but are very different in application.

Coverage. The FMLA covers any private employer that has 50 or more employees on the payroll during 20 or more calendar workweeks (not necessarily consecutive workweeks) in either the current or the preceding calendar year. Who counts as an employee for coverage purposes?

• Any employee whose name appears on the payroll will be considered employed each working day of the calendar week, and must be counted whether or not any compensation is received for the week.
• Employees on paid or unpaid leave, including FMLA leave, leaves of absence, disciplinary suspension, etc., are counted as long as the employer has a reasonable expectation that the employee will later return to active employment.
• If there is no employer/employee relationship (as when an employee is laid off, whether temporarily or permanently) that individual is not counted.
• Part-time employees are considered to be employed each working day of the calendar week, as long as they are maintained on the payroll.
• An employee who does not begin to work for an employer until after the first working day of a calendar week, or who terminates employment before the last working day of a calendar week, is not considered employed on each working day of that calendar week.

Once a private employer meets the 50 employees/20 workweeks threshold, that employer remains covered until it reaches a future point where it no longer has employed 50 employees for 20 (nonconsecutive) workweeks in the current and preceding calendar year. Thus an employer who met this threshold in 2010, drops below it later that year, and never crosses it again during 2011, would remain covered until December 31, 2011.

Eligibility. Just because the FMLA covers a particular employer, does not mean that the FMLA requires that employer to provide FMLA leave to any or its employees. An employee must still meet the FMLA’s eligibility requirements. To be eligible for FMLA leave, an employee must work for a covered employer, and:

1. Was employed by the employer for at least 12 non-consecutive months;
2. Worked 1,250 hours during the 12-month period preceding the start of the requested leave; and
3. Works at a location where the employer employs 50 or more employees within a 75-mile radius.

There you have it. At least as the FMLA is concerned, 50 does not necessarily equal 50. If you a business that has 50 or more employees who are fragmented across smaller locations, each more than 75 miles from the others, then you may fall into the weird vortex of being covered by the Act, but never having any employees who are eligible for leave.

Next week, we’ll look at what this distinction means on a practical level for your business, and also explore whether in light of the recent ADA Amendments it even matters.

How far can a Cat’s Paw reach?

Last month—in Staub v. Proctor Hosp.—the Supreme Court held that employers are liable for the discriminatory animus of managers and supervisors uninvolved with the adverse action decision making, unless the employer’s decision is entirely independent of the discriminatory input of the manager or supervisor. At the time, I argued that this broad holding would make it very difficult for employers to win summary judgment in these “cat’s paw” cases. Blount v. Ohio Bell Telephone Co.—decided a mere nine days after Staub—illustrates my point.

In Blount, two former Ohio Bell employees claimed that their employer discharged them in retaliation for taking protected leave under the Family Medical Leave Act. They argued that their managers punished FMLA users more severely than non-users who engaged in the same alleged workplace misconduct. Ohio Bell, however, argued that those managers lacked the discretion to fire the plaintiffs, and that the decision to terminate was made higher up the supervisory chain. The Court, however, concluded that the plaintiffs presented enough evidence to defeat the employer’s motion for summary judgment:

Moreover, even if the decision to punish and terminate resided higher in the supervisory chain, as Defendants argue, the animus of the Center Sales Managers can be inferred upwards where it had the effect of coloring the various adverse employment actions in this suit. See Staub v. Proctor Hospital (holding that discriminatory animus can be inferred upwards where the employee who makes the ultimate decision to punish does so in reliance upon assessments or reports prepared by supervisors who possess such animus).

The takeaway? If employers will be liable for the animus of managers and supervisors in all but the most unconnected of decisions, then businesses should get started training those managers and supervisors on their EEO responsibilities. If courts will hold you responsible for their actions, don’t you want some peace of mind that you did everything you could to guide those actions?

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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.

What does Chicken Little teach us about social media policies?

Last week, I had the pleasure of presenting a three-hour seminar on social media and employment law at the Labor & Employment Advances Practices (LEAP) Seminar. The one issue that garnered the most discussion from a room packed with HR professionals, business owners, and in-house counsel was the NLRB’s recent foray into the regulation of social media policies. Almost to a fault, a room of informed and knowledgeable businesspeople entered the session with the notion that the NLRB had banned companies from implementing social media policies that restrict or limit employees’ speech about their employers. I did what I could to dispel that notion. Until the Supreme Court tells me otherwise, I will not be convinced that a business cannot fire an employee who trashes its reputation, or the reputations of its management personnel, online.

My back-and-forth with the conference attendees got me thinking (and tweeting with fellow blogger Daniel Schwartz) about the law of unintended consequences. Because of how the NLRB press-released this settlement, and how the media reported on it, public perception is that social media policies cannot restrict any employee speech. For example, last week a post at Above the Law quoted a Seton Hall law professor from a CBS News interview: “Souza’s case ‘has expanded the free speech rights of American workers…. If they are communicating about the workplace, and they’re talking about their supervisors, then it’s a protected activity.’” This quote accurately summarizes the public (mis)conception about the Souza case.

If the NLRB has succeeded in scaring employers, then hasn’t the NLRB won this point? Even if rational minds conclude that employees will never be allowed to defame or disparage their places of employment or the people who work there—even in the name of protected, concerted activity—hasn’t the very threat of an NLRB charge chilled employers from implementing social media policies that regulate this type of speech?

We’ll never know if the NLRB intended this chilling effect, but the NLRB’s publicity machine has done enough for corporate America to believe that the social media sky is falling, legitimately or not.

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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.

Don’t give lip service to your harassment policy

It’s one thing to have a harassment policy. In fact, you’d be hard-pressed in 2011 to find many businesses that don’t. It’s entirely another thing, however, to have corporate culture that take the enforcement of that policy seriously. EEOC v. Dave’s Supermarkets (N.D. Ohio 3/1/11), illustrates the dangers that lurk for employers that choose to give their harassment policies lip service.

In Dave’s Supermarkets, female employees complained that the store ignored their complaints when the meat department manager (no jokes, please) sexually harassed them. The court not only denied the employer’s summary judgment motion as to (most) of the employees’ harassment claims, but also permitted their punitive damage claims to proceed to a jury trial. In refusing to dismiss the punitive damages claims, the court relied heavily on the fact that while the employer maintained a detailed anti-harassment policy, it did not follow through on its own procedures when it received the plaintiffs’ complaints.

A comprehensive anti-harassment policy involves three components:

1. The anti-harassment policy.
2. Appropriate training of all employees about that policy.
3. A consistent corporate culture that take the policy and the company’s anti-harassment stance seriously.

Having a policy and enforcing it are two different animals. A policy is only as good as the people who execute it. Training and the right corporate culture are necessary to ensure that your anti-harassment policy works as best as it should and as often as it is needed. Otherwise, you are left in the awkward (and expensive) position of having to explain to a jury why your actions didn’t match your policy.

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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 #171 (the actual retail price without going over edition)

Congratulations to Kristen ten Brink (@onthe10brink on Twitter), who submitted the winning bid to Medical Costs Price Is Right:

The actual retail price of a 19-day at the Cleveland Clinic, including all procedures, labs, doctors, etc., is $106,885.10, which is at least half of what I expected. Kristen, either email or DM me your contact information and I’ll send out your exciting prize package. And, thank you to everyone who participated.

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

Dukes v. Wal-Mart

• A Skeptical U.S. Supreme Court Vigorously Questions Certification of a Mammoth Sex-Discrimination Class Action Lawsuit – from Employer Law Report
• Class-Action Lawsuits: Not The Answer for Workplace Gender Discrimination – from Harvard Business Review
• The Strong Pull of a “Day in Court”; Lessons Learned from Wal-Mart v. Dukes – from Daniel Schwartz’s Connecticut Employment Law Blog
• Supreme Court Hears Oral Arguments in Dukes v. WalMart Class Action Case – from HR Lawyer’s Blog
• SCOTUS Hears Largest Employment Law Class Action Ever – from Philip Miles’s Lawffice Space
• Fatal inconsistency in Wal-Mart Stores v. Dukes? – from LawMemo Employment Law Blog
• Oral Argument Held In Wal-Mart v. Dukes – from Laconic Law Blog
• The High Court’s Dukes v. Wal-Mart Hearing: Here is What it Might Mean – from TLNT
• Analysis Of The Supreme Court Argument In Dukes – from Workplace Class Action Litigation
• “Justices Take Up Key Issue in Wal-Mart Bias Suit” – from How Appealing
• Argument recap: A fatal flaw detected? – from SCOTUSblog
• Wal-Mart Class Action Goes to US Supreme Court – from San Antonio Employment Law Blog
• Dukes Proving To Be a Hazard to Wal-Mart – from Abovethelaw.com
• Duke v. Wal-Mart at Forbes Woman: Implicit Gender Bias and Social Science Evidence – from Settle It Now Negotiation Blog
• Reflections on the Supreme Court Argument in Dukes v. Wal-Mart – from TLNT
• Wal-Mart, The Missing Link, and Class Certification – from Stephanie Thomas’s The Proactive Employer Blog

Discrimination

• Booze, wild beaver, and a pregnant bartender. What! – from Eric Meyer’s The Employer Handbook Blog
• Former Employee Fired for Wearing Shorts – from San Antonio Employment Law Blog
• The Lilly Ledbetter Chickens Come Home To Roost – from Discriminations
• Is the ‘Mommy Track’ Still Taboo? – from The Juggle (WSJ)
• The USERRA does not provide a claim for hostile work environment – from Employment Law Matters
• 5 Ways Employers Make Plaintiffs’ Lawyers Very, Very Happy – from Employment and Labor Insider
• “Grace Period for ADA Modifications Proposed in Congress” – from Walter Olson’s Overlawyered
• Employment Nondiscrimination Act Back in Play – from Southwest Florida HR Law & Solutions
• I Reported Harassment and Now HR Wants to Meet With Me. What Do I Do? – from Screw You Guys, I’m Going Home

Wage & Hour

• Some Things Don't Have to Be In Writing: Supreme Court Protects Employees Against Retaliation After Making Verbal Complaints of Wage and Hour Violations – from Washington Workplace Law
• FLSA Scenarios: How Well Do You Know the Law? – from Michael Haberman’s Omega HR Solutions
• FMLA Atop the Top Ten Things that Trouble Human Resources - The Tricky Part of FMLA Leave Made Simple – from Employment Law 101

Social Media & Workplace Technology

• Look Before You Tweet: Employer May Be Liable For Impersonating Employee On Facebook, Twitter – from Hunton Employment & Labor Law Perspectives™
• E-Mail, Twitter, and Unsurprising Changes – from YourHRGuy
• Court Rules That Instant Message Conversation Modified the Terms of a Written Contract – from Technology & Marketing Law Blog
• McAfee Report: Hackers Are Targeting Corporate Trade Secrets Now – from Trade Secrets Blog

Labor Relations 

• UPDATE: House Committee Votes to Amend Senate Bill 5 – from Vorys on Labor
• Ohio Set To Enact Anti-Union Bill – from Workplace Prof Blog
• Ohio’s John Kasich Signs Law Limiting Government Union Power – from LaborUnionReport
• NLRB Holds Employee’s Secret Recording of Meeting is Protected Activity – from Wisconsin Employment & Labor Law Blog
• Appeals Court Gives Hospital Go-Ahead to Ban Smoking Without Union’s Consent – from Joe’s HR and Benefits Blog
• Growth and evolution in the law on protected concerted activity – from Work Matters

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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 punishment fits the crime – appropriate corrective action in harassment investigations

An employer has an absolute obligation to investigate a complaint of harassment, and, where founded, take appropriate corrective action to stop the harassment from continuing. Next week, we’ll look at the implications of when an employer fails at the former. Today, though, we’ll look at a case that helps define scope of the latter.

In Wilson v. Moulison North Corp. (1st Cir. 3/21/11), the plaintiff alleged that his employer failed to take appropriate corrective action in response to his complaint that coworkers created a workplace permeated by heinous racially discriminatory taunts. The plaintiff argued that the employer’s verbal reprimand and warning that future harassment would result in termination was too mild a sanction, and that the company should have immediately terminated them instead.

The court refused to armchair-quarterback the employer’s business judgment:

In most situations—and this case is no exception—the imposition of employee discipline is not a rote exercise, and an employer must be accorded some flexibility in selecting sanctions for particular instances of employee misconduct.... The short of it is that, given the totality of the circumstances, the punishment seems to have fit the crime....

We appreciate the sincerity of the plaintiff's outrage, but the discipline imposed need not be such as will satisfy the complainant.... The plaintiff’s argument that the sanction must have been inadequate because it was ineffective to stop the harassment is nothing more than a post hoc rationalization.... Barring exceptional circumstances (not present here), a reasoned application of progressive discipline will ordinarily constitute an appropriate response to most instances of employee misconduct.

The key takeaway here is the progressiveness of progressive discipline. When might a similar warning not suffice, and a court require more severe corrective action?

• If the perpetrators are repeat offenders.
• If discrimination is a long-standing problem for the employer.
• If the employer has a history of inconsistent discipline.

Absent these “exceptional circumstances,” do not always jump to the conclusion that a harassment investigation must end in termination. Instead, make the punishment fit the crime.

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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.