WIRTW #174 (the Good Friday edition)

Ricky Gervais is a hero to all of us who live in the world of employment law or human resources. He created David Brent, the most inappropriate boss ever, on the original British version of The Office. David Brent begot Michael Scott, his U.S. counterpart and the second most inappropriate boss ever. I bring this up because last week, the Wall Street Journal published An (Atheist) Easter Message from Ricky Gervais. Ricky’s point is that being a good person doesn't necessarily equate to being a good Jew or Christian or Muslim or whatever:

It’s not that I don’t believe that the teachings of Jesus wouldn’t make this a better world if they were followed. It’s just that they are rarely followed…. God or not, if I could change one thing for a better world, it would be for all mankind to adhere to this little gem: “Let he who is without sin cast the first stone.” I assure you, no more stones would ever be thrown.

As we celebrate Passover and Easter, Ricky’s thoughts are good ones to take to heart. Two of my fellow bloggers weighed on the issue of religion in the workplace this week:

• Passover & Easter: A Time to Reflect on Religious Discrimination Issues – from Daniel Schwartz’s Connecticut Employment Law Blog
• Religion in the Workplace: 5 Devilish Employer Mistakes – from Employment and Labor Insider

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

Social Media & Workplace Technology

• Social Networks: New Hotbed for Hiring Discrimination Claims – from Computerworld
• Social Media Research May Expose Discrimination Claims – from David Carr at InformationWeek’s The Brainyard
• Can a lawyer respond to comments on their blog without creating an attorney client relationship – from Real Lawyers Have Blogs
• Social Media Signals of an Employee Departure – from Rob Radcliff’s Smooth Transitions
• A Facebook Harassment Consideration – from Philip Miles’s Lawffice Space
• Inside Straight: Social Media Policies – from Mark Herrmann at Above the Law
• Social-Media & Legal Ethics – from Molly DiBianca’s Going Paperless
• Cool or Creepy? Your iPhone and iPad Are Keeping Track of Everywhere You Go, And You Can See It – from Kashmir Hill’s The Not-So Private Parts
• Your smartphone is tracking you, and you said it was okay – from Boy Genius Report

Discrimination

• EEOC Sanctioned On Another Class-Wide Case – from Employment Class Action Blog
• Paycheck Fairness Act Not “Magic Bullet” – from Stephanie Thomas at Compensation Cafe
• Paycheck Fairness Act Not The Answer – from The ChamberPost
• Wal Mart to Pay $440,000 To Settle Allegations It Tolerated Harassment of Mexican-American Employees – from Joe’s HR and Benefits Blog
• Don’t use unemployment as a proxy when it's a poor predictor – from Michael Maslanka’s Work Matters
• Don’t Hate Me Because I’m Beautiful! Appearance Discrimination in the Workplace – from Screw You Guys, I’m Going Home
• Transgender Man Challenges Firing From Male-Only Job – from LE Blog
• Legality of Wellness Programs Under the ADA: A Good Development – from Labor & Employment Law Navigator
• Questions About the ADA Amendments Answered by EEOC Associate Legal Counsel – from Michigan Employment Law Advisor
• ADAAA: The true cost of disability accommodation under the new law – from HR Cafe
• The ADA Soon Will Cover More Disabled – from PCWorld Business Center

Employee Relations & HR

• 9 Sure-Fire Ways to Get Fired – from Evil HR Lady, Suzanne Lucas
• 7 Signs Your Employees Are Poachable – from Trade Secrets & Non-Compete Blog
• Lying On Your Resume Is Not Good For Your Career – from fyiscreening.com

Wage & Hour

• “FindLaw Legal Bloggers Sue for Overtime Pay” – from Walter Olson’s Overlawyered
• Misclassifying an employee may void a non-compete agreement – from Eric Meyer’s The Employer Handbook Blog
• SSA Resumes Social Security Number “No-Match” Letter Program – from Employer Law Report
• “Happy Days” cast sues CBS over royalties – from Entertainment Weekly
• 4th Circuit Affirms That Store Manager That Spends Majority Of Time On Non-Managerial Tasks Is Nonetheless Exempt Under The FLSA – from Laconic Law Blog
• Improperly Recouping Worker’s Overtime Pay Puts Animal Hospital in the Doghouse – from Overtime Advisor
• Tips For Managing Intermittent Leave – from Labor & Employment Law Perspectives

Labor Relations

• Former NLRB Member: Board to Rewrite Organizing Law, Ignore Federal Rulemaking Requirements – from Seth Borden’s Labor Relations Today
• NLRB Issues Complaint Against Boeing – from Workplace Prof Blog
• In Shot Heard Around Business World, Obama’s Labor Board Issues Complaint Against Boeing – from LaborUnionReport
• Labor Employment Law Blog: National Labor Relations Board Seeks To Force Boeing To Direct Work To Union-Represented Plant – from Labor & Employment Law Blog
• Criticisms Mount Against NLRB’s Attack Against Boeing, Business – from Shopfloor

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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.

ADA: Court addresses touchy issue of drug use vs. drug addiction

An employer is never prohibited from terminating an employee for on-the-job drug-related misconduct. Employers must tread carefully, however, when dealing with drug-addicted employees, who receive some protections from the ADA.

Section 12114 of the ADA addresses the handling of employees’ illegal use of drugs versus protected drug addiction:

• The ADA does not protect “any employee or applicant who is currently engaging in the illegal use of drugs.”
• The ADA, however, creates a safe harbor and protects employees who are no longer using illegal drugs and who are participating in a supervised rehabilitation program, have successfully such a program, or who have otherwise been rehabilitated successfully.

In Mauerhan v. Wagner Corp. (10th Cir. 4/19/11) [pdf], Mauerhan claimed that his former employer violated the ADA by discriminating against him on the basis of his status as a drug addict. The employer had refused to reinstate Mauerhan 30 days after his completion of a drug rehabilitation program. Wagner argued that 30 days was not long enough for one to be considered rehabilitated, and that Mauerhan was an unprotected “current drug user” when he asked for reinstatement.

The 10th Circuit refused to apply a bright-line rule as to how many days an employee needs to be clean to be considered “rehabilitated successfully” and “no longer engaging in the illegal use of drugs.”

No formula can determine if an individual qualifies for the safe harbor for former drug users or is “currently” using drugs, although certainly the longer an individual refrains from drug use, the more likely he or she will qualify for ADA protection. Instead, an individual’s eligibility for the safe harbor must be determined on a case-by-case basis, examining whether the circumstances of the plaintiff’s drug use and recovery justify a reasonable belief that drug use is no longer a problem….

Among the factors that should be considered will be the severity of the employee’s addiction and the relapse rates for whatever drugs were used.

In other words, employers and employees litigating these issues would be well-served by retaining expert witnesses (drug counselors, psychologists, or psychiatrists) who can offer opinions on these issues. An employer should also focus discovery on the employee’s level of responsibility, the job and performance requirements, the level of competence ordinarily required to adequately perform the job, and the employee’s past performance record, any one or combination of which could show that despite the rehabilitation, the employee is nevertheless unqualified to perform the essential functions of the at-issue job.

These issues are not easy to litigate, but the proper preparation and correct focus during discovery can result in a successful defense.

[Hat tip: Paul Mollica’s Outten & Golden Employment 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.

Survey of wage and hour settlement highlights risk to employers

Most companies cannot afford the risk of a big judgment in a wage and hour class action. Indeed, the real risk in defending these cases is the leverage plaintiffs gain from the threat of big judgments, and the seven figure settlements that often result.

Proof? NERA Economic Consulting published the results of a study of wage and hour settlements over the last four years:

	Mean Settlement (rounded to the nearest million)	Median Settlement (rounded to the nearest million)
2010	$9 million	$3 million
2009	$11 million	$3 million
2008	$22 million	$12 million
2007	$23 million	$14 million

While the overall settlement values have decreased over the last four years, the numbers are still dramatic. Few companies can afford to write a check for even $3 million to fund a class action settlement.

With these numbers in mind, consider whether it is worth your time and resources to understand whether your company meets its wage and hour compliance responsibilities. A wage and hour audit, which will likely cost less than 1% of what one of these settlements would cost, will go a long way toward eliminating the risk of having to fund one of these seven-figure settlements.

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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 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.

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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.

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.

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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 #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

• When an anti-harassment policy won’t defeat a bias claim... – from Eric Meyer’s The Employer Handbook Blog
• Will My Atheism Hurt My Career? – from Evil HR Lady, by Suzanne Lucas
• Equal Pay Day, The Paycheck Fairness Act, and The Easter Bunny – from Stephanie Thomas’s The Proactive Employer Blog
• STFU “We Want Boobies” (It's the Employer’s Response that Counts) – from Philip Miles’s Lawffice Space
• From the Docket: Mr. Potato Head – from Lowering the Bar
• New Jersey Court Asked to Decide What Constitutes a “Man” in Transgender Discrimination Suit – from Randy Enochs’s Wisconsin Employment & Labor Law Blog
• Employers: beware accidental discrimination – from Employment Law Bits
• A rigid return-to-work policy could cause you ADA legal woes – from HR Cafe
• The New ADA Test: Does It Walk Like A Duck – from Employment Law Worldview
• Court of Appeal Says No Accommodation for Violent Threats – from What's New in Employment Law?
• A Testy Bloomberg Emerges in Discrimination Case – from The New York Times
• Seventh Circuit Affirms Denial of Certification in Equal Pay Act/Title VII Gender Case – from Employment Class Action Blog
• Kobe Shows his True Color – from Rob Schwartz’s Fairness Matters
• Wal-Mart Could Face Major Unanticipated Problems in Historic Class Action – from Richard Levick’s The Communicators Blog (at Forbes.com)

Wage & Hour

• Class action demands pay for Huffington Post bloggers – from Walter Olson’s Overlawyered
• Working through lunch may create overtime issues for employers – from The Employer Handbook Blog
• What To Do About “Service Writers” And Similar Employees? – from Wage and Hour Laws Blog
• US DOL Issues Fluctuating Work Week Regulations: Agency Sticks To What It Knows – from Wage & Hour - Development & Highlights
• DOL Seeks To Undermine Fluctuating-Workweek Plans – from Wage and Hour Laws Blog
• DOL Wage-and-Hour Division Issues New Regulations – from Employer Law Report
• Family and Medical Leave Enhancement Act is Reintroduced – from Washington D.C. Employment Law Update

Social Media & Workplace Technology

• Using Social Networking Sites to Defend Your Company in Employment Law Cases – from Daniel Schwartz’s Connecticut Employment Law Blog
• Social Media Discovery Made Easy – from Rob Radcliff’s Smooth Transitions
• Screening Job Candidates With Facebook: Part 1 and Part 2 – from Molly DiBianca’s Delaware Employment Law Blog
• Oh, the humanity! Stupidity rules in social media and employment – from Employment and Labor Insider
• NLRB Set to Issue Complaint Arising Out of Employee Twitter Comment – from Seth Borden’s Labor Relations Today
• NLRB Protecting Negative Online Comments About Employer – from employeescreenIQ Blog
• A Union Calls a Twitter Strike: Will Anyone Notice (or Care)? – from LaborUnionReport
• In the name of productivity and consistency, employers should permit employee Internet access at work – from Work Matters
• Don't Take Your Smartphone to the Bathroom from bnet

HR & Employee Relations

• Lessons from my Daughter’s Laptop – from Harvard Business Review
• A Short Checklist to Avoid a Disgruntled Former Employee Costing Your Company $200,000 – from Michigan Employment Law Advisor
• Onboarding 101, or What NOT to Do When a New Employee Starts Work – from TLNT

Labor Relations

• If I Were Starting A Union, Here's What I’d Do... – from The HR Capitalist, by Kris Dunn
• Is the Board Ready to Move on Relocation Decisions? – from Labor Relations Update
• Board: Unenforced Handbook Rules Violate NLRA Despite Disclaimer – from Labor Relations Counsel

Litigation

• Lessons for Employers in the Rejection of “The Harvard Twins’” Efforts to Reopen the Settlement with Facebook – from Iowa Employer Law Blog
• Winklevoss-Proof Your Mediated Settlement Agreements – from Settle It Now Negotiation Blog
• Settling Non-Compete Cases: Postponing Battle for Another Day? – from Trade Secrets & Non-Compete Blog
• Employee lawsuits a bigger part of modern American workplace – from Alison Grant at cleveland.com
• Court Considers Hypotheticals In Determining Overbreadth of CVS Non-Compete Agreement – from Legal Developments In Non-Competition Agreements

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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.

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):

• Seth Borden (Labor Relations Today; @SHBorden): writing about social media and labor law
• Molly DiBianca (Delaware Employment Law Blog; Going Paperless; @MollyDiBi): writing about privacy issues
• Eric Meyer (The Employer Handbook Blog; @Eric_B_Meyer): writing about discovery and litigation
• Philip Miles (Lawffice Space; @PhilipMiles): writing about the nuts and bolts of social media
• Rob Radcliff (Smooth Transitions; @robradcliff): writing about confidentiality, non-competition agreements, and trade Secrets
• Daniel Schwartz (Connecticut Employment Law Blog; @danielschwartz): writing about hiring, recruiting, and employee engagement

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.

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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.