EEOC to consider the use of leave as a reasonable accommodation

I have previously discussed how the ADA may require that employers provide unpaid leaves of absence to disabled employees of more than 12 weeks:

• Has the ADA swallowed the FMLA for employee medical leaves?
• ADA may require leaves of absence beyond FMLA mandates

Later this week, the EEOC will hold a public meeting to discuss this very issue. According to the EEOC’s press release:

The U.S. Equal Employment Opportunity Commission (EEOC) will hold a public meeting on Wednesday, June 8, at 9:30 a.m. (Eastern Time), … to examine the use of leave as a reasonable accommodation…. The Commission will hear from invited panelists on the appropriate use of disability leave as a reasonable accommodation and on complying with relevant regulations

Considering that the Agency’s agenda includes a discussion of “how to comply with the law and appropriately permit leave to employees,” I do not expect to hear any paradigm-shifting revelations. Instead, this meeting should merely highlight for employers the importance of considering an unpaid leave of absence as a reasonable accommodation, and the illegality of inflexible and hard-capped leave of absence policies.

Nevertheless, the EEOC is using these public meetings to highlight regulatory and enforcement issues it is prioritizing (e.g., the use of employment status and credit history as hiring criteria, and the plight of older workers). Because the EEOC appears to be targeting leaves of absence for heightened enforcement, employers should pay special attention to this issue. I will have a full summary of the EEOC’s public meeting later this week.

[Hat tip: Workplace Prof 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.

WIRTW #179 (the “but, I have a black friend” edition)

At Salon.com this week, Teresa Cotsirilos asks, “Is racism on the way out?” According to a website I discovered (thanks to @EPetersonSHRM), the answer is clearly “no.” I'm not RACIST, but... posts examples of just how racist people really are, by searching public Facebook posts for the phrase “not racist but”. Some examples, you ask?

–or–

The real question is whether we should be surprised that people this ignorant don’t have enough sense to lock down the privacy settings on their Facebook accounts.

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

Discrimination

• Think Sexism Doesn’t Exist? Read This – from Screw You Guys, I’m Going Home
• Fired Cocktail Waitresses Sue, Claim Casino Wanted Sexier and Younger Workers – from ABA Journal Daily News
• Bridge Worker With Fear of Heights Gets ADA Trial – from Joe’s HR and Benefits Blog
• Federal Court Concludes EEOC Subpoena Is Improper Fishing Expedition – from New York Labor and Employment Law Report
• How To Document a Hostile Work Environment – from UndercoverLawyer
• Son May Bring 3rd Party Retaliation Claim – from Atlanta Employment Lawyer Blog
• Timing Is (Almost) Everything: The Adverse Employment Action Following Knowledge Of Disability – from New York Labor and Employment Law Report
• Brownie Defense Fails in Workplace Drug Testing Case – from Minnesota Labor & Employment Law Blog

Social Media & Workplace Technology

• Social Media Distractions Are Costing Businesses Major Money – from Mashable
• The Tide Seems to Have Turned For Social Media on the Job – from TLNT
• Facebook closing in on 700 million friends – from Boy Genius Report
• Why employees should think before they tweet – from The Globe and Mail
• Two Questions Employers Should Ask Before Implementing A Social Media Policy – from Michigan Employment Law Advisor
• Addressing teacher use of social media—on and off the clock – from Eric Meyer’s The Employer Handbook
• The Perfect Media Storm That Is “Weinergate” – from The Not-So Private Parts

Labor Relations

• NLRB Rules Rat Display at Secondary Employer Premises is Lawful – from Seth Borden’s Labor Relations Today
• Fire For Facebook “Concerted Activity”, Risk Getting a Union – from Michael Haberman’s Omega HR Solutions
• Placement of Production Line in Right to Work State Alleged to Violate NLRA – from Labor & Employment Law Perspectives
• More reaction to the NLRB’s overreach – from Marathon Pundit

Employee Competition & Trade Secrets

• Expedited Discovery In Non-Compete Cases Is Not Guaranteed – from Legal Developments In Non-Competition Agreements
• Misclassification of Employee May Impact Employer’s Ability to Enforce Non-Compete Agreement – from Delaware Non-Compete Law Blog
• Third Circuit: Breach of Independent Contractor Agreement Provides Basis to Deny Request for Injunctive Relief – from Trade Secrets and Noncompete Blog
• Colorado Supreme Court Says Continued At-Will Employment Is Sufficient Consideration For Noncompetition Agreement – from Colorado Employer’s Law Blog

Wage & Hour

• Paid Time Off—How’s It Working? Let’s Find Out – from HR Daily Advisor
• Paid Sick Days: Business killer or worker boon? – from CareerDiva Eve Tahmincioglu
• Employee Who Refuses to Provide Sufficient Medical Certification under FMLA is Lawfully Terminated – from FMLA Insights
• Exempt Managers Spending Major Time on Nonmanagerial Duties May Not Affect Exempt Status – from Overtime Advisor
• SDNY: Outside Sales Exemption Applies to Registered Representatives – from Wage & Hour Counsel

Background Screening

• County to Background Check Ice Cream Truck Drivers – from employeescreenIQ Blog
• 3 Myths About Employing People With Criminal Histories – from fyiscreening

In light of this week’s theme, I’ll leave everyone with a glimmer of hope, courtesy of a picture taken by my daughter on her new digital camera.

 

At the age of 5, she has not yet learned to see race; I hope she never does.

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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.

Does your social media policy cover photographs and video?

Yesterday, I discussed the importance of having a policy covering workplace visual recording by employees. Employees snapping cell-phone photos or shooting video is not your only risk. If your organization has a social media presence, and will use this media to post and share photographs and videos of employees (at organizational events, etc.), it is best to let employees know that their photographs or likenesses may appear from time to time on these websites. 

There are two ways to accomplish this goal: an opt-in (requiring employees affirmatively to sign a document granting permission) or an opt-out (advising that any employees who does not want his or her likeness used must inform the company). From a practical standpoint, the opt-out is administratively easier. It also provides the same level of protection, provided that the policy is clearly and uniformly disseminated to all affected employees.

This issue is one of many that will be discussed in the upcoming HR and Social Media: Practical and Legal Guidance.

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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.

Court upholds termination of employee caught using cell phone camera at work

As technology becomes smaller and more accessible, employers will be faced with new problems. For example, one would be hard-pressed to buy a mobile phone that lacks a camera. How, then, should employers address their almost increasing prevalence in the workplace? The answer is to have a policy and to consistently enforce it.

If you need convincing, consider the recent Ohio appellate decision in Strodtbeck v. Lake Hosp. Sys., Inc. (5/13/2011), in which a hospital fired an emergency department technician after he was caught using his cell phone’s camera to photograph a patient. The employee claimed he took the picture to document what he believed was the patient’s mistreatment, which he wanted to bring to the hospital’s attention. The hospital argued that it was against hospital policy for employees to use their own cameras in the workplace. The Ohio appellate court sided with the employer, concluding that there was no legal basis for a wrongful discharge claim and affirming the dismissal of the case.

After reading the Strodtbeck case, you might be tempted to say to yourself, “We’re not a hospital, so these issues don’t affect us.” Think again. There are lots of scenarios that can impact businesses. For example, cell phone cameras can be used to:

• Copy trade secrets or other confidential information.
• Document harassment or discrimination.
• Harass co-workers with lewd or offensive photos.
• Record safety issues.
• Distract employees from the performance of their jobs.

Moreover, the ability of these mobile devices to readily connect with social networks like Facebook or twitter increases the risks posed by these tiny cameras.

Your have two regulatory options:

1. An outright ban on mobile phones in the workplace.
2. A ban on the taking of photographs in the workplace.

Whichever your choice, you should also ensure that your social media policy addresses the posting of photographs, so that all of your bases are covered. Come back tomorrow for more discussion of how your social media policy can (and should) address photographs, video, and employee likenesses.

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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.

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.