A love letter to Connecticut (or, a modest proposal to bring jobs to Ohio)

Dear Connecticut,

I read on the Connecticut Employment Law Blog that your state legislature passed its controversial paid sick leave bill. Your Governor supports the measure and is expected to sign it. Beginning January 1, 2012, the law will mandate that many of your state’s employers with 50 or more employees provide 40 hours per year of paid sick leave to most full-time employees.

A few years ago, we Ohioans expected to vote on a similar measure via a statewide referendum. Our then-Governor (a Democrat) recognized the detriment such a measure would pose to our state’s ability to attract and retain the businesses we so sorely need. He struck a deal with the sponsoring labor unions pulling the Health Families Act from the ballot. Our state’s economy still isn’t great, but it’s better than it would have been if the Act had passed three years ago.

Connecticut Republican Representative John Rigby shares the same concerns about your state’s ability to attract and retain businesses (as quoted on NPR.org), “They’re going to have to shed jobs…. They’re going to have to let people go. They’re going to have to make a decision about whether to open the next brew pub in Connecticut or in Massachusetts or Rhode Island—states that are considered more business-friendly than our state.” Adds Kia Murrell, assistant counsel for the Connecticut Business & Industry Assoc. (as quoted on MSNBC.com), “Today is the worst possible time to add one more thing…. It’s one more nail in the proverbial coffin.”

Connecticut, when your businesses are ready to flee to avoid this stifling mandate, we are happy to take them and the jobs they bring along.

Love,

 

Ohio, your (not quite) neighbor to the West

P.S.: Please help support a fellow labor & employment blogger, Daniel Schwartz, and click over to his Connecticut Employment Law Blog, which he re-launched yesterday with a brand new look and some cool new features.

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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.

Class actions: the smaller you are, the bigger the risk

At some point in the next several weeks, the Supreme Court will deliver its long-awaited opinion in Dukes v. Wal-Mart. Recall that Dukes will decide the propriety of the class certification of the largest sex-discrimination case ever (1.5 million employees seeking billions in damages).

As we wait for the Dukes decision, plaintiffs continue to file large discrimination class actions. The latest was filed against accounting giant KPMG. From Law360:

A former senior manager at KPMG LLP filed a putative class action Thursday in New York that claims the accounting giant shuts out women and working mothers from its upper ranks, seeking $350 million in damages.

Plaintiff Donna Kassman argues that KPMG elbows women out from the partnership track and frowns on those who use maternity leave or flexible schedule benefits, capping the number of women in management positions at well below industry standards.

Your workplace may not large enough and your employees may not earn enough for you ever to be exposed to $350 million in risk. Risk, however, is proportional to size. KMPG reported $20.6 billion in revenue in 2010. $350 million is a mere 1.7% of its annual revenue. Consider, however, that the average retail and service small business has $6,000,000 in annual revenue. You better believe that a class action would place your small business at risk to lose more than $101,400 (or 1.7%). In other words, the smaller your business, the more at risk you are from potential class actions.

While $350,000,000 is an astronomical number, it is a number that a $20 billion business can absorb. On the other hand, a class action against a small business is often “bet the company” litigation. A $1,000,000 judgment against a $6,000,000 company could easily put that company out of business.

As we wait for the Supreme Court’s Dukes opinion, consider what proactive steps you can take in your business to help insulate you from potential class actions that could put the continued viability your business in jeopardy.

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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.

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.