WIRTW #183 (the “to catch an (alleged) adulterer” edition)

Chris Hansen’s Dateline NBC series To Catch a Predator was one of my guilty pleasures. It was eye-opening to watch a bunch of creeps try to explain why they needed a bag full of condoms and a six-pack of beer for their play date with a 13-year-old girl. After three years of nabbing these (alleged) pedos, you’d think that Chris would have learned the power of the hidden camera. Think again. From the Baltimore Sun:

The NBC anchor was secretly filmed while on a date with someone who was most definitely not his wife.

According to the Daily Mail, Hansen has been carrying on a secret affair with a local TV reporter from Florida, and he was busted taking her to dinner at the Ritz-Carlton before returning to her apartment for the evening.

I hope they at least served Chris cookies and lemonade before they broke the news to him that he’d been busted.

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

Discrimination

• 15 Things You Need to Know About Disability Discrimination – from Screw You Guys, I’m Going Home
• Octogenarian Manager Strikes Blow Against Age Bias – from Workplace Fairness
• Age discrimination: Assumptions that lead to trouble – from HR Cafe
• EEOC Charges Abercrobmie & Fitch Violated Muslim Employee’s Rights – from Joe’s HR and Benefits Blog
• Getting Used to Sexual Harassment: “Boiling Frog” Syndrome – from Employment Lawyer Blog
• Is My Boss Racist, or Just Being a Good Manager? – from Evil HR Lady
• When are Employee Pregnancy Policies Considered Unequal Treatment? – from Virginia Employment Law Journal
• Guide to Dress Codes and Nondiscrimination Laws – from HireCentrix

Social Media & Workplace Technology

• Will Google+ Kill Facebook? – from Manpower Employment Blawg
• Facebook hits 750 million users milestone – from Boy Genius Report
• Don’t Let These Facebook Follies Happen To You – from Kashmir Hill’s The Not-So Private Parts
• Will Facebook Destroy Your Job Search? – from Forbes
• Facebook Post Not a “Serious” FLSA Compaint – from Philip Miles’s Lawffice Space
• Social Media and Discovery: Accessing Password Protected Material – from LE Blog
• LinkedIn Lessons for Employers: Part 6 – from Molly DiBianca’s Delaware Employment Law Blog
• Revenge Is Best Served On A 64 Inch TV Screen – from Workplace Diva

HR & Employee Relations

• Ohio a hotbed of biotech job growth – from Dayton Business Journal
• A Test to See If Anyone Actually Reads Your Employee Handbook... – from The HR Capitalist, Kris Dunn
• Stealing the Competition’s Employees – from Rob Radcliff’s Smooth Transitions
• Employee Perks Return Amid Fears of Poaching – from In Charge
• When Does Preparing to Compete Become Unlawful Competition? – from Texas Employment Law Update
• Screwing up at your new gig – from CareerDiva, Eve Tahmincioglu
• The Ethics of Sleep – from LaborRelated
• SHRM Las Vegas Day 3: How Zappos Tony Hsieh Wowed the HR Pros – from TLNT
• Things You Can’t Do on a Plane: Vol. 2 – from Inside Opinions: Legal Blogs
• Drug and Alcohol Testing of Employees in the Workplace – from Minnesota Labor & Employment Law Blog

Wage & Hour

• Could the Beastie Boys collect overtime pay in Pennsylvania? – from Eric Meyer’s The Employer Handbook Blog
• “Girls Gone Wild” Film Editor Seeks Unpaid Overtime Pay – from Wage & Hour - Development & Highlights
• Pizza Chain Fined For Violating Overtime Pay Laws And Retaliation – from Overtime Lawyer Blog
• Can You Terminate Someone the Day They Return From FMLA? – from Michael Haberman’s Omega HR Solutions
• Third Circuit Sustains Employee’s Removal for Lying About Reason for Absences – from The FMLA Blog

Labor

• Push to Repeal Ohio Law on Public Workers Gains Ground – from New York Times
• More About the NLRB’s Proposed Rules on So-Called “Quickie Elections” – from Dan Schwartz’s Connecticut Employment Law Blog
• NLRB to Hold Public Meeting on Proposed Representation Election Rule – from Labor Relations Counsel
• Major Changes to NLRB Rules Announced Today – from National Review Online
• NLRB Rule Would Burden Employers with Fast-Track Union Elections – from National Legal and Policy Center

More on Wal-Mart v. Dukes

• Too Big to Nail – from The Colbert Report
• Do We Need The Equal Rights Amendment In Light Of Wal-Mart? – from The Proactive Employer Blog
• The Supreme Court and Wal-Mart: Does diversity (of the Justices, that is) matter? – from David Yamada’s Minding the Workplace
• Justices “split largely along gender lines” – from Walter Olson’s Overlawyered
• Copland on Wal-Mart v. Dukes – from Ted Frank’s PointOfLaw Forum
• Wal-Mart v. Dukes: 7 Employment Takeaways from the Recent Supreme Court Ruling – from CPEhr
• More Thoughts on the Wal-Mart Decision – from Maryland Employment Law Developments

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Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

“You’re pregnant. We can’t hire you.”

There are some things you just shouldn't say to a pregnant job applicant—such as, “You’re pregnant. We can’t hire you.” But, that's exactly what a Phoenix, Arizona, Subway manager told Belinda Murillo when she inquired about the status of her job application. What’s even more amazing than the fact that he made the statement is that he admitted to it during her subsequent pregnancy discrimination lawsuit. The bonus points one typically receives in litigation for candor and honesty don’t apply when you’re copping to discrimination. Thus, it is not all that surprising that based on these facts, in EEOC v. High Speed Enterprise, Inc., the court granted summary judgment in favor of the employee.

The lesson from this case is to be reasonable when evaluating risk in defending a lawsuit. Faced with these facts, this case screamed for a settlement. Instead, this employer found itself ensnared in three years of litigation with the EEOC (including 17 depositions, numerous discovery disputes, and a vibrant motion practice), with a jury trial on damages still on the horizon. At the hourly wage of $6.50 Murillo would have earned as a Subway Sandwich Artist, this case should not have been that difficult to settle. Even in the face of these egregious facts, $15,000 should been more than enough to have resolved this case. The fact that it did not resolve reveals a breakdown in the plaintiff’s evaluation of value, the defendant’s evaluation of risk or value, or both.

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Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

“Despicable” does not always equal “severe or pervasive” in a racial harassment claim

In Williams v. CSX Transp. Co. (6/28/11) [pdf], the 6th Circuit upheld the dismissal of a racial harassment claim, confirming the long-standing principle that the anti-discrimination laws are not codes of workplace civility.

The harassment allegations in the lawsuit focused on a two-day period:

According to Williams, Jeff Wingo and Tim Magargle, two supervisors, were watching the Republican National Convention on television … when Williams entered and indicated she did not want to watch. Wingo allegedly told Williams that she was a Democrat only because she was a black woman; that unmarried women cannot “have the love of God in their heart[s]”; and that this country should “get rid of” Jesse Jackson and Al Sharpton because without those two “monkeys” the country “would be a whole lot better.” The following day, Williams alleges that Wingo told her that if she returned to school, she would not have to pay for her education because she was a single black mother.”

Williams also claimed that six months prior, Wingo also asked her why black people cannot name their children “stuff that people can pronounce, like John or Sue,” and told her that black people should “go back to where [they] came from.”

In upholding the trial court’s dismissal of the harassment claim, the Court distinguished between comments that are despicable and comments that are so severe or pervasive that they change the terms and conditions of one’s employment:

The statements were isolated, not pervasive: all but two occurred over a two-day period. Nor were they sufficiently “severe” for Williams to be able to prevail on a racially hostile work environment claim. Those statements—for example, calling Jesse Jackson and Al Sharpton “monkeys” and saying that black people should “go back to where [they] came from”—are certainly insensitive, ignorant, and bigoted. But they more closely resemble a “mere offensive utterance” than conduct that is “physically threatening or humiliating.”

Just because isolated statements might not subject an employer to liability does not mean they should be ignored. To the contrary, the fact that the employer in Williams ignored an anonymous call into its ethics hotline likely caused the lawsuit to be filed. Seven years and hundreds of thousands of dollars later, the employer prevailed on the racial harassment claim. I’ll let you decide which is the better course of action.

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Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

Public policy is in the eye of the beholder

Consider the following two wrongful discharge cases, both recently decided by different Ohio appellate courts, and think about which you believe presents a bigger risk for the employer:

1. In Morris v. Dobbins Nursing Home (6/20/11), a nursing home aide claimed that she was illegally terminated because she reported certain unlawful activities at the home to a state investigator during a health department audit. 

2. In Alexander v. Cleveland Clinic Foundation (6/16/11), a police officer claimed that the Cleveland Clinic wrongfully fired him after reports of several outbursts while working traffic control. In one incident, he struck a car that failed to yield at an intersection, and in another he yelled at bus driver to “learn how to f****** drive.”

The appellate courts decided both cases on the legal issue of whether the plaintiff presented a sufficiently clear public policy—manifested in a state or federal constitution, statute or administrative regulation, or in the common law—to support their respective wrongful discharge claims. Morris relied upon federal regulations that detail the safe operation of nursing homes; Alexander relied upon the requirement that police officers enforce state laws.

Public policy wrongful discharge claims often hinge on the combination of two influences: the creativity of the employee’s attorney to pigeonhole the circumstances surrounding the discharge into a state or federal constitution, statute or administrative regulation, or in the common law; and the court’s opinion of that particular public policy. The unpredictability of these claims underscores the need for employers to treat every termination like a potentially litigious event.

Unpredictable, you say? How many of you thought that the abusive police officer had the better case? Scary, right?

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Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

“Twitter is like making a press statement”

Social Media Today published some eye-opening stats on social media’s penetration into the public consciousness:

• One out of every six minutes spent online is on a social network
• 82 percent of 18-29 year olds use at least one form of social networking
• 46 million Americans check their social media profiles daily
• 96 percent of Americans use Facebook
• 73 percent of the US internet population visits Facebook each month
• People send approximately 140 millions tweets per day
• Yet, 41 percent of companies report they have no staff dedicated to social media

Given the increasing prevalence of social media in society, it is inevitable that abuse by employees will become more of a problem. In a recent survey of businesses, Osterman Research and Proofpoint (as reported by USAToday’s TechnologyLive Blog) concluded that the best strategy to combat employee misuse of social media is a combination of employee trust, social media policies, and educating employees on the use of their best judgment when communicating online.

As to this last point, comedian Louis C.K. said the following in a recent interview by CNN when asked for his thoughts on Twitter:

I mean, Gilbert Gottfried, he’s been saying a whole lot worse for years than he said on Twitter, and then when he said something on Twitter, he lost his job. He lost his livelihood! You know, it’s f---ed up. Twitter is like making a press statement. It’s very sober, and it’s not funny, and the s--- just comes out very dry, and people get upset.

Do your employees understand the risks they are taking by posting their unfiltered thoughts on Twitter, Facebook, and other social media sites? Do you know what your rights are as an employer when you learn that an employee has said something embarrassing to your organization on a social media site? These questions, and more, will be answered in the upcoming HR and Social Media: Practical and Legal Guidance, to be published in the coming weeks by Thompson Publishing. If you’re in Las Vegas at SHRM’s Annual Conference, please stop by Thompson’s booth (1468) for more information.

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Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

WIRTW #182 (the “Oscar the Grouch” edition)

Last summer, I asked a simple question: “Have we devolved into a society of assholes?” Today, I offer the empirical proof, courtesy of a survey conducted by Weber Shandwick and Powell Tate in partnership with KRC Research, as reported by Roger Simon at Politico.com (c/o Workplace Diva). The results are not surprising, but nonetheless sobering:

Some 86 percent of Americans say they have been victims of incivility…. About six in 10 Americans admit they themselves have been rude….

More than four in 10 Americans have experienced incivility in the workplace, with 65 percent blaming their bosses for it, and 59 percent blaming fellow employees. Younger employees were blamed by 34 percent, and access to the Internet by 25 percent (Is Angry Birds making people angrier?). Older employees did best, blamed for incivility by only 6 percent.

On the positive side, when asked to assign a degree of incivility to 25 American institutions, the workplace finished better than 21 others, sandwiched between President Obama and Oprah. Good company to be in, I suppose.

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

Wal-Mart v. Dukes

• Wal-Mart v. Dukes: What The Class-Action Decision Really Means for Employers – from Dan Schwartz’s Connecticut Employment Law Blog
• Why the Walmart Ruling is Good For Everyone – from Evil HR Lady
• Wal-Mart Stores, Inc. v. Dukes—A Sigh of Relief – from Michael Fox’s Jottings By An Employer’s Lawyer
• Wal-Mart Ruling Reinforces Fundamental Principles of Fairness – from The ChamberPost
• “$7 million to sue Wal-Mart”? – from Ted Frank’s PointOfLaw Forum
• Why Wal-Mart Matters, But Perhaps Less Than You Think – from Workplace Fairness
• Five Reasons Why the Walmart Decision Doesn't Affect Your Discrimination Case – from Donna Ballman writing at AOL.com

Social Media & Workplace Technology

• NLRB Continues Aggressive Response to Employers’ Social Media Policies It Deems Overbroad – from Social Networking Law Blog
• Update: NLRB Continues To Closely Probe Employer Terminations Following Employee Complaints On Social Media – from Hunton Employment & Labor Law Perspectives™
• Fired for having a sassy Web page? – from HR Cafe
• Now Your Embarrassing/Job-Threatening Facebook Photos Could Haunt You For Seven Years – from Kashmir Hill’s The Not-So Private Parts
• Prosecutor’s Facebook postings did not warrant overturning conviction – from Evan Brown’s Internet Cases
• How To Respond To A Social Media Crisis or Scandal: Don’t Be A Weiner – from Shear on Social Media Law
• Even More Social Stats – from Mark Toth’s Manpower Employment Blawg
• Grandparents Are Using Social Networks – from Social Media Today

Employee Relations & HR

• “So You Got My Letter” – from Walter Olson’s Overlawyered
• Hire Slow, Fire Fast – from Michael Haberman’s HR Observations
• Does Your Employment Separation Agreement Mean What You Think it Means? Michigan Court Addresses Meaning of “Disparagement” – from Michigan Employment Law Advisor
• Keeping The Pirates At Bay: How To Avoid And Deal With Poaching – from Trade Secret / Noncompete Blog
• Goodyear Tire Sues Continental Tire On Invevitable Disclosure Via New Hire Theory – from Trade Secrets Blog
• Protecting Trade Secrets: Confidential Information and Customer Relationships Audits – from Trade Secrets & Non-Compete Blog
• GOOD RIDDANCE! Just what can you say about that ex-employee of yours? – from Employment and Labor Insider
• What to expect from a background check – from The Work Buzz

Labor Relations

• BEWARE EMPLOYERS: Overhauled union-election rules may be near – from Eric Meyer’s The Employer Handbook Blog
• More on NLRB’s Proposal to Expedite Union Representation Elections – from Seth Borden’s Labor Relations Today
• NLRB Proposes Significant Changes to Election Process – from Washington D.C. Employment Law Update
• Obama Administration Issues Two Proposed Regulations Designed to Promote Pro-Union Agenda – from Employer Law Report
• Attorneys are more influential than they thought… or maybe the DOL is giving us too much credit – from HR HQ
• Big Brother Watching You? DOL Demands More Information from Employers About Union Avoidance Activities – from Vorys on Labor

Wage & Hour

• Conjunction Junction, What’s Your Function? The Ninth Circuit Finds Junior Accountants And Other Non-Licensed Professions May Be Exempt – from The Wage and Hour Litigation Blog
• A Brief FLSA Refresher Course – from Employment Essentials
• Firing replacement workers to allow striking employees to return is not a “mass layoff” under WARN Act – from Employment Law Matters
• Happy Father’s Day: Dad Claims He Was Terminated After Taking FMLA Leave for Bonding with Newborn Child – from FMLA Insights

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Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

EEOC holds public meeting on 21st century hiring discrimination … and misses the biggest issue

There is perhaps no issue more important to the topic of hiring in the 21st century than social media. Yet, yesterday the EEOC held a public meeting entitled, “Disparate Treatment in 21st Century Hiring Decisions,” and completely ignored this key issue.

In fact, it’s hard to find much of anything new or cutting edge presented by the EEOC at the meeting. Instead, the meeting provided a rehash of longstanding principles against hiring discrimination. Nevertheless, the advice provided by management-side attorney Grace Speights to employers to help avoid hiring discrimination is worth repeating and taking to heart:

1. Develop strong EEO policies, train managers on the policies and the law, and hold managers responsible for failing to follow the policies.
2. Increase HR’s participation and oversight in the hiring and promotion processes as a form of checks and balances to monitor compliance with company policies and legal requirements.
3. Implement diversity training for employees.
4. Identify and remove perceived barriers to hiring and promotion, such as by advertising open positions in sources that reach a more diverse applicant pool.
5. Conduct periodic self-analyses to determine whether current employment practices are tied to job requirements, job performance, and business necessity.
6. Foster training and mentoring programs that provide all workers the opportunity, experience, and information necessary to qualify for promotions.

If you want to learn more about the role of social media in the vetting and hiring of employees, and the impact the discrimination laws have on these practices, pick up a copy of HR and Social Media: Practical and Legal Guidance, available from Thompson Publishing in the coming weeks. And, if you find yourself at SHRM 2011 in Las Vegas next week, stop by Thompson's Booth (#1468) for more information.

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Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.