Are your employees recording you?

ABCNews asks if your employees are secretly recording workplace events to gather evidence for future discrimination and other lawsuits:

Labor experts and employment lawyers say that as cell phones and other digital devices have become more common, employees have gotten increasingly savvy about using high-tech tools to record what they consider discriminatory or inappropriate activity at the office, often in secret….

Katrina Patrick, a Houston employment lawyer…, estimates that more than half of the workers who come to see her bring audio or video recordings, photos, or electronic messages to the first meeting. “Everyone walks around with our cell phones, and our cell phones are armed with all sorts of cameras and recording devices,” she said. “I am actually more surprised when there isn't digital evidence than when there is.”

What’s more, these surreptitious recordings are lawful in Ohio, which permits audio recordings in which only one party—the person with the hidden device—knows about the recording. While Ohio is in the majority on this issue, beware in other states, 12 of which require the consent of all parties. The Reporters Committee for Freedom of the Press provides a good summary of these various state laws.

Just because Ohio law permits these recordings does not mean that you have to allow them in your workplace. What steps can you take to protect yourself and your business against these covert tactics?

• Have policies prohibiting these secret recordings.
• Remind employees before every meeting that recordings are prohibited.
• Act, swiftly, decisively, and consistently if you learn that employees have broken these rules.
• Lastly, assume that employees and job applicants are recording every workplace interaction and act accordingly.

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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.

Considerations for a pet-friendly workplace

At BNET, Laurie Tarkan answers the question of why you should take your dog to work:

• Improved staff morale and worker productivity. People don’t mind working longer hours when they don’t have to run home to walk their dogs.
• Increased camaraderie among employees. They’re a great ice breaker and can get conversations going between people who might otherwise not feel they have much in common.
• Happier employees result in enhanced job performance.
• Increase in sales reported by store owners who take their dogs to work
• Dogs can serve as a crime deterrent.

If you are going to allow for a pet-friendly workplace, however, do not ignore the legal risks: the ADA, property damage, bite risks, and workers who just don’t like dogs.

Before you open your workplace up to your employees’ pets, cover your bases with a workplace pet policy. “How do I do that,” you ask? Luckily, I’ve covered this issue before. Click through for the six points you should cover with your employment counsel before making your workplace pet-friendly.

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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 #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.