A tale of two transgressions, or; How Jim Tressel learned to start lying and lose his job

Employers forgive lots of employee transgressions. I routinely counsel clients that the decision between whether to discipline or terminate an employee often comes down to how valuable the employee is to the organization. The more talented an employee, the more likely an employer will be to forgive even a serious misstep (at least the first time). One sin, above all others, however, should rarely be overlooked—dishonesty.

Consider the following two examples.

On Sunday night I watched a rerun of Undercover Boss. The episode focused on the Chief Development Officer of Subway, a recovering alcoholic who, decades earlier, passed out at work in an alcohol-induced stupor. Instead of firing him, the company gave him a second chance. In the years since, he rose to become one of the company’s key executives.

Compare that story to the weekend’s big news story in Ohio—Jim Tressel’s resignation. He did not leave Ohio State in a cloud of disgrace because his players traded memorabilia for tattoos. Instead, his lies caused his downfall. Trust is the core of any relationship—including that between a boss and employee. Once that trust is eroded, the relationship is unsalvageable. All of the good Tressel did for Ohio State disappeared when he lied to his boss about what he knew and when he knew it.

I'll leave you, my readers, with a question. Can you think of any situation in which you’ve forgiven an employee you caught in a lie? I’d love to hear your thoughts, either via the comments below, my twitter, or my Facebook Page.

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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 #178 (the “…and I feel fine” edition)

When the world didn’t end last Saturday, I got curious. What could have possibly gone wrong? So, I did a little research. Here’s what I found.

The 2011 end times prediction is attributed to Christian radio host Harold Camping. According to Camping, Rapture and Judgment Day were to have taken place on May 21, 2011, with the end of the world occurring five months later. He previously predicted that the same would take place in 1994, and blamed its failure on a mathematical error.

How did Camping arrive at his 2011 prediction? He offers two different mathematical explanations (c/o Wikipedia’s 2011 end times prediction page).

Either:

Camping dates the Great Flood to 4990 BC. Taking the prediction in Genesis 7:4 (“Seven days from now I will send rain on the earth”) to be a prediction of the end of the world, and combining it with 2 Peter 3:8 (“With the Lord a day is like a thousand years, and a thousand years are like a day”), Camping concludes that the end of the world will occur in 2011, 7000 years from 4990 BC. Camping takes the 17th day of the second month mentioned in Genesis 7:11 to be May 21.

Or:

1. According to Camping, the number 5 equals “atonement”, the number 10 equals “completeness”, and the number 17 equals “heaven”.
2. Jesus is said to have hanged on the cross on April 1, 33 AD. There are 1,978 years between April 1, 33 AD and April 1, 2011.
3. 1,978 multiplied by 365.2422 days (the number of days in a solar year) equals 722,449.
4. There are 51 days between April 1 and May 21.
5. 51 plus 722,449 equals 722,500.
6. (5 × 10 × 17)² or (atonement × completeness × heaven)² also equals 722,500.

It’s hard to believe that such a certain prediction failed.

For his part, Camping now says that May 21 was a “spiritual” Judgment Day. The Rapture and the destruction of the world will instead both happen on October 21, 2011, a Friday that will coincide with WIRTW #199. If you subtract 178 (this week’s edition) from 199, you get 21, the date Camping predicts. Wow, this end of world stuff is easy.

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

Discrimination

• Court dismisses the age bias claims of a pistol-packin’ old cripple – from Eric Meyer’s The Employer Handbook Blog
• 9 signs that you’ll lose your age discrimination case – from Employment and Labor Insider
• “Ex-Colts cheerleader sues team over nude body-paint photos” – from Walter Olson’s Overlawyered
• Another EEOC Lawsuit Is Rejected – from Workplace Class Action Litigation
• Study: Whites say they are racism victims – from CBS News
• Racial and national-origin discrimination: Why it’s gotten REALLY tricky – from HR Cafe
• Is the LSAT Discriminatory? – from NY/CT Litigation Blog
• Important ADA Case on Working as a Major Life Activity, Regarded As, and Retaliation – from Workplace Prof Blog
• Perceived Disability: EEOC Wins Relief for Employee With Missing Fingers – from Joe’s HR and Benefits Blog
• Safe Harbors Emerge for Employers Under New GINA Regulations – from Labor & Employment Law Perspectives

Social Media & Workplace Technology

• George Orwell and Social Media – from Rob Radcliff’s Smooth Transitions
• Can An Employer Sue an Employee for On-Duty Facebook Use? – from Molly DiBianca’s Delaware Employment Law Blog
• Social Media: What Most Companies Don’t Know – from Harvard Business Review
• Over 24 Pending Lawsuits Involve Facebook Firings – from All Facebook
• Nobody Wants to be Made an Example of - Crafting Employer Policies to Avoid Liability for Social Media Use – from Digital Workplace Blog

Wage & Hour

• In Titillating Case, Court Compels Strip Club Dancers to Engage Individually ... in Arbitration – from Daniel Schwartz’s Connecticut Employment Law Blog
• The end of wage / hour class actions? – from Connecticut Employee Rights Blog
• Washington Redskins Cheerleaders: All work, (almost) no pay – from TBD
• Employee’s FMLA Claim Dismissed After Taking a Trip to Cancun – from FMLA Insights

Labor Relations

• NLRB Admits Boeing Complaint Applies To Every Business & State – from Townhall Conservative
• The NLRB takes its Internet battle to a non-unionized workplace – from Employment Law Matters

HR and Employee Relations

• Sex in the Workplace – from the Evil HR Lady, writing at BNET
• Arizona Immigration Law Valid According to Divided Supreme Court – from Michael Fox’s Jottings By An Employer’s Lawyer
• 3 Myths About Employing Individuals with Criminal Histories – from Stephanie Thomas’s The Proactive Employer Blog
• The New York Times Realizes That Sitting At Work Makes Us Fatter – from Workplace Diva
• Write a Better Job Description – from Attorney at Work

Until next week:

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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.

Ho-hum … another NLRB social media complaint?

The National Labor Relations Board is divided into 52 regional offices. This week, the Chicago Regional Office became the third to issue a complaint challenging an employer’s discipline of an employee for statements made using social media. This complaint joins the one issued by the New York Regional Office last week and the one issued by the Hartford Regional Office last year. At this rate, the NLRB will soon have the country blanketed.

The details come via the NLRB’s press release:

The National Labor Relations Board issued a complaint last Friday against Knauz BMW, a Chicago area BMW dealership, alleging unlawful termination of an employee for posting photos and comments on Facebook that were critical of the dealership.

The employee, a car salesman, and coworkers were unhappy with the quality of food and beverages at a dealership event promoting a new BMW model. Salesmen complained that their sales commissions could suffer as a result. Following the event, the salesman posted photos and commentary on his Facebook page critical that only hot dogs and bottled water were being offered to customers.  Other employees had access to the Facebook page.

The following week, the dealership’s management asked the salesman to remove the posts, and he immediately complied. Nevertheless, shortly after a meeting with managers on June 16, the employee was terminated for posting the images and comments.

While we can only speculate, it certainly seems like Washington has directed the regions to complaint these cases in an effort to find the right case to issue a sweeping decision regulating workplace social media. For now, the best course of action for employers is to make sure that their labor and employment counsel is vetting any discipline or termination involving social media to avoid ending up in the NLRB’s crosshairs.

For more on these issues, I suggest you read the thoughts of my fellow bloggers:

• Another Day, Another NLRB Complaint Over Facebook Firing – from Molly DiBianca’s Delaware Employment Law Blog
• Labor board issues its 2nd social-media-related complaint in 2 weeks – from Eric Meyer’s The Employer Handbook Blog
• Another Facebook Complaint from the NLRB – from Michigan Employment Law Connection
• NLRB Issues Yet Another Complaint, Press Release, For Facebook Firing – from Hawaii Labor and Employment Law
• Yet Another NLRB Facebook Case – from Philip Miles’s Lawffice Space
• NLRB Social Media Complaints Coming Daily? Another “Facebook Firing” Case Out of Chicago – from Seth Borden’s Labor Relations Today
• Are the NLRB’s Complaints About So-Called Facebook Firings News Anymore? – from Daniel Schwartz’s Connecticut Employment Law Blog
• Of Hot Dogs, Luxury Cars, and the National Labor Relations Act – from LE Blog
• Lessons Learned From Twitter and Facebook: The Dangers of Overbroad Social Media Policies – from Employment & the Law
• Facebook Posting Led To Worker's Unfair Firing: Feds – from The Huffington Post

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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 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.