The EEOC is not hot in Cleveland

Emboldened by the 2008 election results, the EEOC has become very aggressive. For example, last fall, the agency both held a public hearing on the use of credit histories as selection criteria in employment, and filed suit in federal court in Cleveland against Kaplan Higher Education Corp. alleging that its use of credit histories discriminated against blacks as a class.

Earlier this month, the court hearing the Kaplan case dealt a huge blow to the EEOC’s efforts. In granting a motion filed by Kaplan, it prohibited the EEOC from litigating any employment decision made more than 300 days before the named plaintiff filed her charge of discrimination with the agency.

The case started on February 26, 2009, when Shandria Nichols filed a charge of discrimination with the EEOC. She alleged that Kaplan fired her because of the results of a credit history check. In her charge, she alleged that Kaplan had discriminated against her because she was black, and that Kaplan also discriminated against black individuals as a class through its use of credit histories as a selection criteria. On December 21, 2010, the EEOC filed its lawsuit against Kaplan alleging that its use of credit histories constitutes a pattern and practice of discrimination against black employees and applicants.

Relying on Title VII’s 300-day statute of limitations for the filing of any charge of discrimination, the district court limited the EEOC’s potential class and barred the EEOC from seeking relief for any employment decisions that occurred more than 300 days prior to the filing of the charge, or before May 2, 2008:

The plain language of § 707(e) authorizes the EEOC to investigate and act on a charge of a pattern or practice of discrimination, and mandates that such actions be taken in accordance with the procedures of § 706. Section 706 requires a charge to be filed, under the facts of this case, within 300 days after the allegedly unlawful employment practice occurred. Thus, the EEOC may only act where a charge of discrimination has been filed, and such charges must be filed within 300 days of the unlawful employment practice. Plainly, if a charge is not filed within that time limitation, the EEOC may not act upon it. No exception exists in the statute allowing the EEOC to recover damages for individuals whose claims are otherwise time-barred.

This case is a huge victory for employers. It serves as a hard-line limitations on the EEOC’s ability to resuscitate and litigate stale claims. This ruling limits the number of potential claimants in an EEOC pattern and practice class, which, in turn, hinders the agency’s ability to leverage large classes into large settlements.

Perhaps more significantly, this ruling also joins a growing list of federal court cases that are taking the EEOC to task for overstepping its bounds. Hope springs eternal for employers facing an EEOC enforcement lawsuit, provided you are willing to expend the time (and money) to hold your ground.

[Hat tip: @ProactiveStats]

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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 most important thing you need to know about the ADAAA’s regulations (which take hold today)

Today, the final regulations implementing the Americans with Disabilities Act Amendments Act take effect. One of the most important changes the regulations make is to the definition of “substantially limits.” The regulations draw no hard lines defining when a physical or mental condition substantially limit a major life activity (and therefore crosses the line to become a legally-protected “disability”). Instead, the regulations provide nine “rules of construction” to guide this inquiry. The HR Daily Advisor provides a nice summary of these rules (part one and part two).

In reality, though, one can summarize these nine rules into one general concept. While the regulations make clear that “not every impairment will constitute a disability,” because of the ADAAA’s expansive definition of disability, most will. Therefore:

The primary object of attention in cases brought under the ADA should be whether covered entities have complied with their obligations and whether discrimination has occurred, not whether an individual’s impairment substantially limits a major life activity. Accordingly, the threshold issue of whether an impairment ‘‘substantially limits’’ a major life activity should not demand extensive analysis.

(If you’re counting, this is the regulations’ third rule of construction).

In other words, employers should give up hope that they will be able to prove that an employee’s medical condition does not qualify as a disability. Instead, employers should focus their ADA compliance efforts on the two issues that now matter in these cases: avoiding discrimination and providing reasonable accommodations.

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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 appellate court slashes state’s largest discrimination verdict by more than 75%

It has been almost two years since a Cuyahoga County jury handed down what remains the state’s largest single-plaintiff employment verdict: $46.6 million ($3.5 million in compensatory damages and an astounding $43.1 million in punitive damages). As is often the case, however, what the jury gave, the court of appeals took away (at least in part).

In Luri v. Republic Services (5/19/2011) [pdf], the appellate court concluded that employment discrimination claims are subject to Ohio’s damages caps in tort actions. In such actions, punitive damages are capped at two-times the compensatory award. Therefore, the trial court should have reduced the punitive award to a maximum of $7 million. This decision likely reduces the verdict from $46.6 million to a still-robust $10.5 million.

This case is significant for two reasons:

1. Ohio’s most recent foray into tort reform (effective since 2005) is vague on whether it applies to discrimination lawsuits. The Luri case joins the small list of cases to apply these tort reforms to discrimination claims. These reforms not only include the caps on punitive damages, but also the right to automatically bifurcate the issues of compensatory and punitive damages during covered jury trials. For this reason, this decision marks a significant victory for Ohio’s employers. I’ll have more on what these tort reform provisions mean tomorrow.

2. There are many opportunities after a plaintiff’s verdict for an employer to alter—or eliminate—the number that appears on a final judgment. Jury verdicts are followed by post-trial motions, which are then followed by appeals. While a jury verdict is often viewed as the final battle in a case, it rarely ends the war. 

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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 #177 (the “I’ll have what she’s having” edition)

Brazil is famous for lots of things: Pelé, Carnival, the Christ the Redeemer statue, and, apparently, laws that require employers to accommodate female employees’ masturbatory habits. From Above the Law, quoting Going Concern:

Ana Catarian Bezerra is a 36-year-old Brazilian woman who suffers from a chemical imbalance that triggers severe anxiety and hypersexuality. Ana, an accountant by day, began to have problems at work because the only way to relieve said anxiety is by masturbating. A lot. Now, after winning a court battle and seeking professional medical help, Ana is allowed to masturbate and watch porn—using her work’s computer, no less—legally.

Whether or not this story is real or a hoax, Eric Meyer shares his thoughts on how the ADA would apply to such an employee, at The Employer Handbook.

Here’s the rest of what I read this week (and last week):

Discrimination

• Court issues first Texas ruling on the ADA Amendments Act of 2008 and EEOC final regulations and guidance – from Mike Maslanka’s Work Matters
• EEOC Files Suit Against Starbucks for Firing Dwarf Barista – from Philip Miles’s Lawffice Space
• Nine Signs of Age Discrimination – from Screw You Guys, I’m Going Home
• Manager promised too much, contributing to $2.6M court verdict – from HR Cafe
• Rigid Leave Policies—A Formula for Liability – from Labor & Employment Law Perspectives
• 10 Things You May Not Know About Adverse Impact – from The Proactive Employer Blog
• Defense Fees Awarded In Another Failed EEOC Case – from Workplace Class Action Litigation
• Walmart Settles EEOC Latinos Harassment Suit – from Alabama HR Law

Social Media & Workplace Technology

• Dogging your boss on Facebook – from CareerDiva, Eve Tahmincioglu
• Four Ways To Do a Social Media Policy That’s Simple, Smart, and Right – from TLNT
• UFC’s Social Networking Policy - Something All Employers Should Consider – from California Employment Law Report
• What Happens in Vegas Doesn’t Stay in Vegas: Best Practices For Using Social Media in The Recruiting Process – from Washington Workplace Law
• Should Your Social-Media Policy Address Off-Duty Conduct? – from Molly DiBianca’s Delaware Employment Law Blog
• Blog Wars: Employer Controls and Employee Rights Regarding Personal Blogging – from The L•E•Jer
• Using Facebook at Work – Employer’s Justification for Firing Does Not Pass Straight Face Test – from Employment Law 101 Blog
• Need Info? How To Subpoena Social Media – from Advocate’s Studio
• Social Media Activity In The Workplace And The Computer Fraud And Abuse Act – from Social Media Law Update
• Managing Employees’ Use of Personal SmartPhones and Tablets for Work – from Digital Workplace Blog
• Ten Ways General Counsel Can Avoid the Cover of the Wall Street Journal – from Ride The Lightning

HR and Employee Relations

• Top Findings from Background Screening Trends Survey – from Nick Fishman at employeescreenIQ Blog
• Background Checks and the Fair Credit Reporting Act – from Michael Haberman’s Omega HR Solutions
• Is the Resume Dead? – from Evil HR Lady, Suzanne Lucas
• The Workplace Whodunit: Navigating a Culture of Blame – from Francesca Donner at The Wall Street Journal

Wage & Hour

• An Apple A Day May Not Keep DOL Away – from Stephanie Thomas at Compensation Cafe
• Second Circuit Revisits Standards for “Working” Time vs. Off-the-Clock in Reviving Wage & Hour Class Action – from Daniel Schwartz’s Connecticut Employment Law Blog
• Healthy Families Act Reintroduced in Both Chambers – from Washington D.C. Employment Law Update

Labor Relations

• Members of Congress Issue Spanking to NLRB Acting General Counsel – from Labor Relations Institute
• Senator Alexander (R-TN) and 33 Republican Co-Sponsors Introduce Bill to Clarify Interplay Between NLRA and State Right to Work Laws – from Seth Borden’s Labor Relations Today
• “NLRB’s Boeing attack is a strike against economic reality” – from Walter Olson’s Overlawyered
• Senate Ups the Ante In “Poker Game” with NLRB Over Boeing Complaint – from Wyatt Employment Law Report
• Tenth Circuit follows Gardner-Denver, finding that 14 Penn Plaza does not trump the plaintiff – from Fitzpatrick on Employment Law

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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.

NLRB issues another complaint over a Facebook termination

Like I said yesterday in discussing the NLRB’s position on social media terminations, “The policy direction of the NLRB is a lot like the weather in Florida—if you don’t like it, wait 5 minutes and it will probably change.” Consider the following, courtesy of the NLRB’s website:

The National Labor Relations Board has issued a complaint alleging that Hispanics United of Buffalo, a nonprofit that provides social services to low-income clients, unlawfully discharged five employees after they took to Facebook to criticize working conditions, including work load and staffing issues….

The case involves an employee who, in advance of a meeting with management about working conditions, posted to her Facebook page a coworker’s allegation that employees did not do enough to help the organization’s clients.  The initial post generated responses from other employees who defended their job performance and criticized working conditions, including work load and staffing issues. After learning of the posts, Hispanics United discharged the five employees who participated, claiming that their comments constituted harassment of the employee originally mentioned in the post.

Unlike the case I discussed yesterday (in which the employer received a pass for terminating a tweeting employee for insubordination), the NLRB takes issue with these terminations because they “involved a conversation among coworkers about their terms and conditions of employment, including their job performance and staffing levels.”

This case is set for trial in 5 weeks. Like the American Medical Response case before it, this case could always settle. There is, however, hope on the horizon that employers will finally receive the guidance they crave on the handling of social media under the National Labor Relations Act. If the NLRB’s press release is any indication, however, employers should not hold out hope that the NLRB will give employers a pass on social media posts as protected concerted activity.

As the NLRB’s position on social media continues to evolve, keep watching this space for updates.

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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 you better off without a social media policy?

A few months ago—following an attack by the NLRB by what it perceived as an overly broad social media policy—pundits were screaming that the sky was falling on these new-breed policies. Now, the NLRB is starting to provide some clarity on the misuse of social media by employees.

After the Arizona Daily Star fired a reporter based on the content of his tweets, the employee filed an unfair labor practice charge with the NLRB. While the company lacked a social media policy, it did warn the reporter about his tweeting; it ultimately terminated him for ignoring those warnings.

The NLRB—in an Advice Memorandum from the its General Counsel [pdf]—concluded that the termination did not violate federal labor laws:

In this case, even if the Employer implemented an unlawful rule, the Charging Party was terminated for posting inappropriate and unprofessional tweets, after having been warned not to do so, i.e. for engaging in misconduct….

We further conclude that the Employer did not implement an unlawful rule. In this regard, we acknowledge that, in warning the Charging Party to cease his inappropriate tweets, and then discharging him for continuing to post inappropriate tweets, the Employer made statements that could be interpreted to prohibit activities protected by Section 7.

However, those statements did not constitute orally promulgated, overbroad “rules.” Thus, the statements were made solely to the Charging Party in the context of discipline, and in response to specific inappropriate conduct, and were not communicated to any other employees or proclaimed as new “rules.” … [I]t would not effectuate the purposes and policies of the Act to issue a complaint where the statements were directed to a single employee who was lawfully discharged.

In other words, because the employer lacked a policy, it directed its social media proscriptions only to the fired employee, and the employee was fired for ignoring warnings, the termination did not implicate the employee’s right to engage in protected concerted activity. One can speculate that if the employer had a social media policy, this employer might have had the same potential overbreadth problem as American Medical Response.

This guidance from the NLRB begs the following question: are you better off without a social media policy, instead treating employees’ (mis)use of social media on an ad hoc basis? I think not. Despite the NLRB’s current hostility towards social media, employees need direction. They need to understand the set of rules under which they are playing, so that an employer can apply a termination or other needed corrective action fairly and without surprise.

It is possible to draft a social media policy that provides sufficient guidance to employees, protects employers from rogue conduct, and passes muster under the NLRB’s current iteration. Besides, the policy direction of the NLRB is a lot like the weather in Florida—if you don’t like it, wait 5 minutes and it will probably change.

[Hat tip: Employer Law Report]

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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.

How do other cultures handle HR?

Monsters, Inc., holds a special place in my heart. It was the first movie my wife and I saw together. As an employment lawyer, then, the following sign at the Mike & Sully meet and greet at Disney’s Hollywood Studios struck exactly the right note.

Interestingly, the last bullet point shows that even Monstropolis sees the importance of covering social media in workplace policies. I’m not sure when Disney crafted this sign, but I wonder if it’s one of the earliest examples of a social media 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.