Tuesday, April 19, 2011

Don’t toss off common sense during workplace investigations


When a parent caught high school teacher Tom Elsass watching a group of teenage girls from the school parking lot with his fly down and his maleness exposed, which is the more likely explanation for the large wet spot on his shorts?

  • Elsass, who claimed to suffered from a leaky bladder, was vigorously rubbing his pants “inside and out” to rid his shorts of the wet spot from an embarrassing “pee stain.”

-or-

  • Elsass was masturbating.

In Elsass v. St. Marys City School District Board of Education (Ohio Ct. App. 4/18/11) [pdf], the court not bring itself to believe the former (Elsass’s amazing explanation). It not only upheld his termination, but also took away the back pay ordered by the trial court.

This case illustrates the importance of using common sense during workplace investigations. As employers, we are often forced to choose between two opposing versions of events. In doing so, we have lots of arrows in our investigatory quiver—demeanor, consistency, motive, interest, bias, candor, and accuracy of memory—each of which baring on who is telling the truth. What is often just as, if not more, important, however, is good old fashioned common sense.

No one in their right mind would believe that a grown man, caught staring at a bunch of young girls, was robustly rubbing his crotch to dry a pee stain. As an employer, you are allowed to apply your common sense in these types of situations. As long as your investigation is fair and thorough, and you base your decision on a rational business judgment, courts should not second-guess your conclusions or any adverse consequences that happen flow from them.


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, April 18, 2011

Employers need to beware retaliation landmines


In Baker v. Windsor Republic Doors (6th Cir. 3/8/11), the plaintiff claimed that his employer retaliated against him in violation of the ADA, which in an of itself is not all that unique. What’s different about the case, however, is the nature of the claimed retaliation. Baker, a forklift operator, claimed that Windsor retaliated against him by requiring him to waive any future workers’ compensation claims as a condition of his post-surgical return to work.

Baker took a medical leave for the implantation of a pacemaker and defibrillator. Baker’s doctor ultimately cleared him to return to work with restrictions, including avoiding contact with any electrical current or magnetic fields, and wearing an electromagnetic frequency alarm. Windsor made the requested accommodations, but uncomfortable that it could guarantee Baker’s safety, additionally asked him to waive his rights to workers’ compensation benefits for any aggravation of his heart condition. When Baker refused to agree to the waiver, Windsor refused to continue his employment. Baker sued, and a jury awarded him $113,500 for disability discrimination and retaliation.

Specifically as the retaliation claim, the 6th Circuit concluded that the workers’ compensation waiver constituted an adverse action:

[A] rational jury could conclude that the waiver request was indeed an adverse action. Trial testimony is clear that if Baker chose not to waive rights that no individual without a heart condition was required to waive, he would not be allowed to return to work for the defendant. In fact, Lawrence Land, the company's director of human resources, engaged in the following colloquy with Baker’s lawyer:

   Q Is it fair to say that as of June 2006, you did not give [Baker] the option of returning to work with the EMF alarm but without signing away his workers' compensation benefits?

   A Sir, that's absolutely correct.

   Q All right. And to this day, has he ever been given the option of returning to work with the EMF alarm but without signing away his workers' compensation benefits? …

   A Sir, I've not had any communication, so that would be correct.

Being forced to choose between forfeiting certain statutorily guaranteed rights or remaining on indefinite, unpaid leave-of-absence is indeed a dilemma that a rational finder-of-fact could conclude was adverse.

Employee medical leaves and returns to work confound employers. In this case, the employer tried to do everything right to protect both the employee and itself, but nevertheless exploded a retaliation landmine by asking for the waiver. The standard for what constitutes retaliation is so broad—any materially adverse action that might have dissuaded a reasonable worker from making or supporting a charge of discrimination—that something even as innocuous as asking for workers’ compensation waivers can qualify. Businesses not well versed in these issues (and even most that are) would be well served by seeking legal counsel in connection with employee leaves and returns to work to avoid making similar mistakes.


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, April 15, 2011

WIRTW #173 (the bird brain edition)


We know spring is in the air in the southwestern suburbs of Cleveland because the robins are out in full flight. One of these robins must have a nest somewhere outside my family room, because it keeps attacking the window (see right, for proof). It boggles my mind that something would engage in the same fruitless (and painful) endeavor for weeks on end. And yet, should it? We’ve all dealt with employees who repeat the same deficiencies. We try to rehabilitate them via performance reviews, improvement plans, and write-ups, often in vain. Are we any different than the bird?

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

Discrimination

Wage & Hour

Social Media & Workplace Technology

HR & Employee Relations

Labor Relations

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.

Thursday, April 14, 2011

Coming soon to your bookshelf: HR and Social Media


It’s no coincidence that Facebook’s founder was Time’s 2010 Person of the Year. 2011 has become the breakout year for social media, as it continues increase in importance everyday. Social media not only permeates every aspect of our daily lives, but also every aspect of today’s HR.

I am pleased to announce that I will be authoring HR and Social Media: Practical and Legal Guidance, to be published by Thompson Publishing this summer. I believe it is the first such book of its kind. It will be a comprehensive resource covering the following issues in this cutting-edge area of employment law:

  1. Introduction: Social Media Horror Stories
  2. What is Social Media?
  3. Drafting the Social Media Policy (including Harassment, Discrimination, and Retaliation)
  4. Using Social Media in Hiring and Recruiting
  5. Employee Privacy and Defamation
  6. Confidentiality, Non-Competition Agreements, and Trade Secrets
  7. Discovery of Social Media in Litigation
  8. Social Media and Labor Law

I am not alone on this task. I have recruited an amazing group of my blogging colleagues to contribute chapters (in alphabetical order):

I’ll be writing about social media horror stories and how to draft, implement, and enforce an effective and workable social media policy, including incorporating your social media program into your harassment and discrimination policies.

Continue to watch this space in the coming months for updates, including publication, availability, and how to add this tool to your HR library.


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, April 13, 2011

Has the ADA swallowed the FMLA for employee medical leaves?


It’s likely that by now you know that the recently amended ADA is expansive enough to cover most medical conditions. If most medical conditions are covered as disabilities, then most employees with medical conditions will likely, at some point during their tenure, need a reasonable accommodation. One accommodation that the EEOC considers presumptively reasonable is an unpaid leave of absence, even for employers too small to be covered by the FMLA.

Yesterday morning, KJK’s Labor & Employment lawyers (me included) held a spirited Breakfast Briefing discussing the recent ADA amendments. One of the topics covered was the impact of the ADA on employers’ obligations under the FMLA. If the ADA now covers most employees’ medical issues, and the ADA requires an unpaid leave of absence, hasn’t the ADA swallowed the FMLA, at least as employee medical leaves are concerned?

In light of this intersection between the ADA and the FMLA, employers should beware the following mistakes:

  1. Those un-covered by the FMLA should not assume that they never have to provide unpaid leaves to employee.
  2. Employers covered by the FMLA should not assume that ineligible employees are never eligible for unpaid leaves.
  3. Employers should not assume that the leave of an FMLA-eligible employee is capped at 12 weeks.

Instead non-FMLA employee medical leaves of absence should be determined between the employer and the employee through the use of the ADA’s interactive process. Otherwise, you are putting yourself in the crosshairs of an ADA claim.

For the benefit of those who could not attend yesterday’s Breakfast Briefing, the slides are available below.

Handling Employee Medical Issues Under the ADAAA (KJK Breakfast Briefing: April 12, 2011)


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, April 12, 2011

Does GINA cover sexual orientation discrimination?


Michael Haberman has a very interesting post at his HR Observations blog discussing whether the Genetic Information Nondiscrimination Act covers addictions potentially grounded in genetics, such as caffeine or nicotine addiction.

Michael’s post sparked the following thought. There are few questions that provoke as much debate as what makes a person gay or straight. Just as many people will tell you that sexual orientation is genetic, as will tell you it’s environmental, as will tell you it’s a combination of the two. If you accept for the sake of argument that sexual orientation has a genetic component, then if an employer fires an employee because of his or her sexual orientation, then hasn’t the employer acted “because of genetic information with respect to the employee?” And, if that’s the case, has GINA made the Employment Non-Discrimination Act moot before it has the chance to become law?

When the first sexual-orientation-as-genetic-discrimination lawsuit is filed, it will be a very interesting (and controversial) legal issue for a judge to decide.


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, April 11, 2011

FMLA coverage vs. eligibility: Employer notice and recordkeeping requirements


Last week, we discussed the difference between employer coverage and employee eligibility in the calculus of determining when you must provide FMLA leave to an employee. Today, we’ll examine the two other key areas in which this distinction matters: notice and recordkeeping.

Notice

Every employer covered by the FMLA is required to post a notice explaining the FMLA’s provisions. The notice must be posted prominently where it can be easily seen by employees and applicants for employment, and must be large enough to be legible and easily read. A copy of the poster suggested by the Department of Labor is available (as a PDF) from the DOL’s website.

Covered employers (those with 50 or more employees on the payroll during 20 or more calendar workweeks in either the current or the preceding calendar year) must post this general notice even if no employees are eligible for FMLA leave (no employee was employed for at least 12 non-consecutive months, worked 1,250 hours during the 12-month period preceding the start of the requested leave; and works at a location where the employer employs 50 or more employees within a 75-mile radius).

If, however, an FMLA-covered employer has at least one FMLA-eligible employees, it must also provide this same general notice to each employee by including the notice in employee handbooks or other written guidance to employees concerning employee benefits or leave rights, if such written materials exist, or by distributing a copy of the general notice to each new employee upon hiring. In either case, distribution may be accomplished electronically.

Recordkeeping

The FMLA requires covered employers to maintain records that disclose the following information on all employees:

  • Basic payroll and identifying employee data, including name, address, and occupation.
  • Rate or basis of pay and terms of compensation.
  • Daily and weekly hours worked per pay period.
  • Additions to or deductions from wages.
  • And total compensation paid.

Covered employers who have eligible employees must additionally maintain records that disclose the following:

  • Dates FMLA leave is taken by FMLA eligible employees. Time records and leave request forms are sufficient as long as the leave in those records is designated as FMLA leave.
  • If FMLA leave is taken by eligible employees in increments of less than one full day, the hours of the leave.
  • Copies FMLA-leave requests made by employees (if in writing), and copies of all written FMLA designations and other notices given to employees. Copies may be maintained in employee personnel files.
  • Any documents (including written and electronic records) describing employee benefits or employer policies and practices regarding the taking of paid and unpaid leaves.
  • Premium payments of employee benefits.
  • Records of any dispute between the employer and an eligible employee regarding designation of leave as FMLA leave, including any written statement from the employer or employee of the reasons for the designation and for the disagreement.

An employer is not required to keep a record of actual hours worked for any FMLA-eligible employee who is either not covered by the FLSA or are exempt from the FLSA. For these employees, however, FMLA eligibility will be presumed for any employee who has been employed for at least 12 months. Additionally, for employees who take FMLA leave intermittently or on a reduced leave schedule, the employer and employee must agree on the employee’s normal schedule or average hours worked each week and reduce their agreement to a written record that that employer preserves.

Employers must maintain records and documents relating to certifications, recertifications or medical histories of employees or employees’ family members, created for purposes of FMLA, as confidential medical records in separate files/records from the usual personnel files, and in compliance with ADA confidentiality requirements.


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.