6th Circuit tosses out DOL’s internship test

A little over a year ago, the Department of Labor signaled that it was placing unpaid internships and training programs in its crosshairs, via its publication of Fact Sheet #71 (entitled, Internship Programs Under The Fair Labor Standards Act). That Fact Sheet re-affirmed the DOL’s six-factored analysis for the legality of unpaid internships.

Solis v. Laurelbook Sanitarium and School, Inc. (6th Cir. 4/28/2011) concerned whether students who worked at a school-owned nursing home as part of their schooling were employees (who must be paid) or interns/trainees (who do not).

The 6th Circuit broke ranks from the Department of Labor and refused to apply its six-factored test to determine whether the school properly classified these student workers:

We find the WHD’s [six-factored] test to be a poor method for determining employee status in a training or educational setting. For starters, it is overly rigid and inconsistent with a totality-of-the-circumstances approach, where no one factor (or the absence of one factor) controls….

[W]e hold that the proper approach for determining whether an employment relationship exists in the context of a training or learning situation is to ascertain which party derives the primary benefit from the relationship. Factors such as whether the relationship displaces paid employees and whether there is educational value derived from the relationship are relevant considerations that can guide the inquiry.

The court concluded that even though Laurelbrook obtained some benefit from the students' activities, the primary benefit of the program ran to the students. Therefore, the school properly categorized them as unpaid interns or trainees.

Notwithstanding this seemingly pro-business decision, internships continue to be a touchy wage and hour issue. Employers should be mindful of all of these principles, and tread very carefully if debating the use of unpaid interns, volunteers, or trainees.

In vitro proving to be fertile ground for sex discrimination claims

One case has the potential to be an anomaly. Two cases is a bona fide trend. Nearly three years ago, in Hall v. Nalco Co., the 7th Circuit afforded Title VII protection to a woman’s infertility treatments.

Last month, in Govori v. Goat Fifty, LLC (S.D.N.Y. 3/31/11), a different court permitted an employee—fired the day after she advised her supervisors and co-workers that she had begun fertility treatments—to proceed with her sex discrimination claim. If employers weren’t paying attention to this issue before, they should be now.

In evaluating Govori’s pregnancy discrimination claim, the court adopted the reasoning of Hall, which concluded that Title VII protects women undergoing in vitro fertilization treatments because only women are anatomically capable of undergoing these procedures:

[O]nly women undergo surgical implantation procedures; therefore, only women and not men stand in potential danger of being fired for missing work for these procedures. An employer who fires his female employee for missing work for IVF treatment discriminates not on the basis of reproductive capacity or infertility alone, but on the basis of medical conditions related to pregnancy. Thus, women who are fired for undergoing IVF are protected from such discriminatory, sex-based action by the terms of the PDA. 

The question presented here is whether an employer, having assumed the financial responsibility of salaried employment, can then fire its female employee solely on the basis that she decided to undergo IVF treatments…. Accordingly, Govori has stated a cognizable claim for sex-based discrimination under Title VII, as amended by the PDA.

Pregnancy and pregnancy-related medical procedures (such as IVF) differentiate female employees from their male counterparts. As long an employer is going to permit any employee to take time off for a non-pregnancy related short-term debilitating condition, it must make the same allowance for a female worker’s pregnancy-related medical procedures.

WIRTW #175 (the so long and thanks for the memories edition)

Last night, we said a tearful good bye to an employment lawyer’s best friend, the regional manager of Dunder Mifflin’s Scranton office and the self proclaimed world’s greatest boss, Michael Scott. In his honor, TV Line counted down the top 32 most memorable Michael Scott Moments (Part 1, Part 2, Part 3, and Part 4). And, for those who missed the television event, it’s available via NBC.com for viewing at your leisure.

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

Social Media & Workplace Technology

• NLRB is Back and Ready for Action (Part I) – from Daniel Schwartz’s Connecticut Employment Law Blog
• Blog Wars: Employer Controls and Employee Rights Regarding Personal Blogging – from The L•E•Jer
• NLRB Takes Issue With Employer’s Response to Employee’s Tweet – from Molly DiBianca’s Delaware Employment Law Blog
• An Appeal for Cooler Heads on NLRB’s Social Media Policy Enforcement – from Brian Hall at Employer Law Report
• Recommendations and References in the Social Media Context – from Social Media Employment Law Blog
• How to keep your social media profile embarrassment free – from Shear on Social Media Law
• Social Media and Your Privacy – from Social Media Today

Wage & Hour

• Cat’s Paw Already Impacting FMLA Claims – from Jeff Nowak’s FMLA Insights
• Proposed Legislation Would Expand FMLA Rights – from Wisconsin Employment & Labor Law Blog
• Independent Contractor Problems May Arise With Current Employees – from Michael Haberman’s Omega HR Solutions
• Strangulation by Regulation – from National Review Online

Discrimination

• Avoiding EEO Claims in an Environment of Heightened Enforcement – from BLEG Blog
• Woman fired for fighting at a cheese plant wins bias claim – from Eric Meyer’s The Employer Handbook
• Class Certification Denied In ADA Termination Lawsuit Over Maximum Leave Of Absence Policy – from Workplace Class Action Litigation
• Power to the People(mark)! Court Hits EEOC with $750,000 Attorneys’ Fee Award for Frivolous Lawsuit – from LE Blog
• Discrimination Against Unemployed Applicants? EEOC Hears Experts – from George’s Employment Blawg
• EEOC Files Suit Against Construction Firm – from San Antonio Employment Law Blog
• Retaliation and Racial Discrimination Claims are Spiking: Could the Bad Economy be to Blame? – from Employment Lawyer Blog
• When Bipolar Worker Makes Threats: Accommodate or Terminate? – from Case In Point

Employee Relations & HR

• Do Secretaries Have a Future? – from the New York Times
• What Should An Employer Do if Child Pornography is Discovered in the Workplace? – from Michigan Employment Law Advisor
• You be the judge: Boss fired worker who took photos to back up complaint – from HR Cafe
• Clean Departure Key To Minimizing Liability – from Legal Developments In Non-Competition Agreements
• Rightful Termination: Important Part of an Organization’s Talent Lifecycle – from TLNT
• Bringing Baby To Work: Can It Work? – from Work and Family Blog
• Debunking Myths About Employment Credit Checks – from employeescreenIQ Blog
• How To Use Credit Reports For Employment Background Checks – from fyiscreening

Labor Relations

• The Obama NLRB and Non Union Employers: Caution Ahead – from John Holmquist’s Michigan Employment Law Connection
• NFL Players Win First Legal Round – from Workplace Prof Blog
• Trio of Board Cases Continue Recent Trends – from Labor Relations Counsel
• NLRB Files Complaint Against Boeing – from Philip Miles’s Lawffice Space

Arbitration

• Arbitration As Protection Against Class Actions – from Michael Fox’s Jottings By An Employer’s Lawyer
• Class Action Waiver - What About Section 7? – from Labor Relations Update
• Federal Arbitration Act preempts state law that made class action waiver unconscionable (5-4) – from LawMemo Employment Law Blog
• How to Learn to Stop Worrying About Wage & Hour Class Actions and Love Arbitration – from The Wage and Hour Litigation Blog
• Class Action Waivers Upheld – from Manpower Employment Blawg
• The Demise Of Employment Class Actions? – from Employment Law Worldview
• Federal Arbitration Act (FAA) Class Action Defense Cases–AT&T Mobility v. Concepcion: U.S. Supreme Court Reverses California’s Discover Bank Rule And Holds Class Action Waivers Valid And Enforceable In Arbitration Agreements – from Class Action Defense Blog
• Class arbitration and unconscionability – from PointOfLaw Forum
• United States Supreme Court Decides Significant Arbitration And Class Action Case – from Labor Employment Law Blog
• Welcome Back, Arbitration? – from What's New in Employment Law?
• Supreme Court Holds That Class Action Waivers In Arbitration Agreements Are Enforceable – from Employment Class Action Blog
• Supreme Court Issues Pro-Arbitration Decision – from Washington D.C. Employment Law Update

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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.

Nuisance value

$22,000 doesn’t buy you a whole lot in litigation land. It’s not enough to take a case through trial, or even to trial. Depending on the case, it might be enough to take some discovery. If your case has a lot of motion practice, it might not even get you any discovery at all. In litigation land, $22,000 is called cost-of-defense, or, better yet, nuisance value. For this reason, I question the EEOC’s decision to boast in a press release on its website that it has settled a retaliation lawsuit for that very number. I know that the EEOC serves a purpose higher than dollars and cents, but it doesn’t make any sense to publicly brag about your nuisance value settlement … unless you happen to be the employer bragging about how you hooked some naive plaintiff on a lowball settlement.

[Hat tip: LawMemo 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.

Ohio federal court recognizes sexual orientation as a protected class for public employees

After Cuyahoga County fired Shari Hutchinson, she sued, claiming that her employer terminated her because she is a lesbian, in violation of her constitutional equal protection rights. In Hutchinson v. Cuyhoga County Board of County Commissioners (N.D. Ohio 4/25/11) [pdf], the employer sought dismissal on the ground that sexual orientation is not a protected class. The court overturned the motion and permitted the sexual orientation discrimination claim to proceed to discovery.

The court agreed with the employer that Title VII does not prohibit sexual orientation discrimination. Because Hutchinson was a public employee proceeding under the United States Constitution, Title VII did not define the court’s limits. Instead, the court concluded that it could analyze the sexual orientation claim

The Court concludes that an employee who alleges sexual orientation discrimination … is not per se precluded from establishing an equal protection claim against her employer.  Simply because Title VII does not include sexual orientation as a statutorily protected class does not, in this Court’s view, automatically remove all constitutional protection where a plaintiff employee claims equal protection violations based on her membership in that class…. Though sexual orientation may not be a suspect or quasi-suspect class, the Court finds that constitutional disparate treatment claims alleging sexual orientation discrimination by a public employer at least garner the bare minimum of rational basis review.

Pundits are lauding this decision as groundbreaking. In reality, the court refused to lift sexual orientation to special status as a suspect or quasi-suspect—such as race or sex. Instead, it simply requires public employers to treat all of its employees on equal footing. As a result, it will remain more difficult for public employees to prove sexual orientation discrimination than race or sex discrimination. Nevertheless, this case is a step in the right direct in recognizing some degree of protection for sexual orientation.

There are two more important points to make about this case:

1. This decision only affects public employees. It has no impact on private employees, who still must proceed under Title VII (which does provide some limited protections for sexual orientation based on gender stereotypes).
2. Hutchinson still most prove that her employer treated her differently because of her sexual orientation. This decision merely gives her the opportunity to try to prove the unlawfulness of her termination. Rest assured that the 6th Circuit (and, potentially) the Supreme Court will have the opportunity to weigh in on this charged issue.

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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.

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.