Must employers pay unused vacation at termination? It depends.

One issue that often arises with employees is whether they should be paid out unused vacation pay at the end of employment. Because Ohio law considers vacation pay a deferred payment of an earned benefit, an employer generally cannot withhold accrued vacation pay at the end of employment (just like it cannot withhold wages from a final paycheck). Unlike wages, however, because this benefit is deferred, an employer can implement a policy under which an employee forfeits unused vacation days.

Thus, the rule for vacation pay is as follows:

• If an employer does not have a policy pursuant to which unused vacation time is forfeited, and if the employee has unused, accrued vacation time, he or she is entitled to be paid for that time.
• If, however, the employer has a clear written policy, set forth in a manual, handbook, or elsewhere, providing that paid vacation time is forfeited on resignation or discharge, an employer may withhold unused vacation pay.

Do you want to know what such a policy looks like? A recent Ohio appellate decision—Majecic v. Universal Devel. Mgmt. Corp. [pdf]—provides the following example:

Paid Time Off (PTO) includes sick, vacation, … and personal time off with pay…. Employees will be given PTO days after one year of employment…. All unused PTO will be forfeited upon an employee’s resignation or termination.

Two thoughts to leave you with:

1. Despite this recent judicial guidance, and as with all employment policies, it is best to check with your employment counsel before rolling out a vacation pay forfeiture policy to your employees.
2. Notwithstanding the ability to implement a vacation pay forfeiture policy, think about whether such a policy makes for sound HR practice, or whether it makes more sense to limit this policy only to “just cause” terminations, if at all.

Is that a hair in my chalupa? (or, Taco Bell and EEOC battle over religious accommodation)

A Nazarite is one who takes a biblical vow to refrain from wine, wine vinegar, grapes, raisins, intoxicating liquors, and vinegar distilled from such, refrain from cutting the hair on one’s head, and to avoid corpses and graves, even those of family members, and any structure which contains such.

History’s most famous Nazarite is Samson, who famously refused to cut his hair because it was the source of his strength. Its second most famous might be Christopher Abbey, on whose behalf the EEOC has filed a religious discrimination lawsuit against a North Carolina Taco Bell that fired Abbey after he refused to cut his hair. From the EEOC’s press release:

According to the EEOC’s lawsuit, Abbey is a practicing Nazirite who, in accordance with his religious beliefs, has not cut his hair since he was 15 years old. Abbey had worked at a Taco Bell restaurant owned by Family Foods in Fayetteville, N.C., since 2004. Sometime in April 2010, Family Foods informed Abbey, who was 25 at the time, that he had to cut his hair in order to comply with its grooming policy. When Abbey explained that he could not cut his hair because of his religion, the company told Abbey that unless he cut his hair, he could no longer continue to work at the restaurant.

Two questions immediately leap to mind:

1. What changed between 2004 and 2010, when the restaurant decided that Abbey could no longer work with long hair?
2. What was so burdensome about Abbey wearing a hair net?

Someday, employers will learn that sometimes it is easier to make a simple accommodation than to dig in their heal and fight.

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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 #187 (the “24” edition)

Willie Mays … Jack Bauer … Jon Hyman … what do we all have in common? The number 24. HR Examiner, one of the preeminent online magazines on HR issues, recently named me to its list of the top 25 digital influencers for human resources—number 24, to be exact. Please check out the entire list, which is chock-full of great HR bloggers and tweeters.

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

Discrimination

• What would Kenny Powers do? Interview questions to avoid – from The Employer Handbook Blog
• Sexual Harassment: You Knew or Should Have Known – from Michael Haberman’s Omega HR Solutions
• “Associational Disability Discrimination”—Yet Another Protected Category – from Labor & Employment Law Perspectives
• Non-impaired employee may be able to bring a claim under the ADA’s “associational disability” provision – from Employment Law Matters
• Wal-Mart Agrees to Give Women Extra Time to File Discrimination Lawsuits – from How Appealing
• Verizon Consent Decree Provides Road Map For Surviving EEOC Scrutiny of No Fault Attendance and Leave of Absence Policies – from Employer Law Report
• Two Recent Decisions Illuminate for Employers the Broad Contours of ADA Confidentiality vs. the Narrow Boundaries of HIPAA Privacy – from Workplace Privacy Counsel
• ADA And GINA: The EEOC Suggests That Additional Layers Of Privacy Protections For Employee Health Information May Be Necessary – from Hunton Employment & Labor Law Perspectives™
• Substance abuse and the ADA: Can too much caring get you in trouble? – from HR Cafe

Social Media & Workplace Technology

• Social Media: Used Not Just to “Friend”, but to Hire – from Smart HR Manager
• LinkedIn and Litigation – from Augmented Legality
• Twitter Fail and Compliance – from Compliance Building
• E-Monitoring in the Workplace: Do’s and Do Not’s – from Workplace Insights
• How much time are your employees on Facebook? from Rob Radcliff’s Smooth Transitions
• Monitoring Employee Communications Requires Up-to-Date Consent – from Labor & Employment Law Perspectives
• Computer Fraud and Abuse Act: A Criminal Statute That Extends to the Employment Relationship? – from Michigan Employment Law Advisor
• Employers Hunt Down Your Bachelor Party Pics on Facebook – from Evil HR Lady, Suzanne Lucas
• Google Plus for lawyers : First impressions – from Real Lawyers Have Blogs
• Social Media “Incidents” Costing Average Company $4 Million A Year – from Workplace Diva
• LinkedIn Launches “Apply With LinkedIn” Button – from Social Axcess

HR & Employee Relations

• Can you get fired for cursing at work? – from CNN
• Using Trickery and Deceit in Workplace Investigations – from iSight Blog
• How to Use Payroll Debit Cards to Pay Employees – from Virginia Employment Law Journal
• Criminal Histories and Employment Opportunities – from Stephanie Thomas’s The Proactive Employer Blog
• 21 Workplace Benefits That Are Rapidly Disappearing – from US News and World Report
• HR Mistakes in Mergers and Acquisitions – from TLNT
• What To Do When Angry Employees Leave – from Inc.

Labor Relations

• NLRB Division of Advice Provides Additional Guidance on Social Media Issues – from Seth Borden’s Labor Relations Today
• NLRB: Not All Employee Facebook Posts Deserve Protection After All – from Dan Schwartz’s Connecticut Employment Law Blog
• Ikea’s Virginia Manufacturing Plant Workers Vote for Union – from Bloomberg
• First Circuit Upholds NLRB’s Strike Against Compensation Confidentiality Policy – from Labor Relations Counsel
• NLRB Quickie Election Fact Check – from Labor Relations Institute

Wage & Hour

• U.S. DOL Seeks New Employment-Law-Related Apps – from Molly DiBianca’s Delaware Employment Law Blog
• Parental Bereavement Act Would Amend FMLA to Provide Leave Upon Death of a Child – from FMLA Insights

Trade Secrets & Competition

• Noncompete Defamation Leads to Six-Figure Verdict – from Philip Miles’s Lawffice Space
• Affidavits Not Enough to Obtain Injunctive Relief in Alleged Raiding Case – from Trading Secrets
• Court Enjoins Lawyer From Competing and Soliciting Clients of Former Law Firm – from Trade Secrets & Non-Compete Blog

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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.

Did you hear the one about the one-armed man who applied for a job with TSA?

Michael Costantino was born without a left hand. Should the Transportation Security Administration have hired him as an airport screener? Or, has it violated the ADA by refusing to hire him because of his missing hand? Eva Tahmincioglu reports the details at MSNBC.com:

After a physical examination by the agency, he got a notice stating he did not qualify for the position because of the “congenital loss of right hand.” …

But an official, who demanded anonymity, said the congressional act that created the TSA in 2001 “gave the agency the leeway to create its own physical qualifications for the Transportation Security Officer position, and potential employees have to meet certain physical standards to meet those qualifications.” The law requires that screeners “possess basic aptitudes and physical abilities, including color perception, visual and aural acuity, physical coordination, and motor skills.”

This case will hinge on whether Costantino could perform the essential functions of the transportation security officer position, including patting down passengers and checking luggage. As this recent case from the Northern District of Ohio makes clear, the ADA does not require an employer to restructure the essential duties functions of a job as a reasonable accommodation.

I would argue that moving passengers through the line as quickly and safely as possible is also an essential function of this position. It is probably safe to assume that Costantino could screen passengers and luggage one-handed, albeit more slowly. If his limitation would cause him to take longer to screen passengers and cause an unneeded back-up, would he be performing all of the job’s essential functions? Before you slam me for being insensitive, answer these questions honestly. Do you want to be in the unnecessarily long security line when you’re trying to catch your flight? Or, would you be murmuring under your breath for the line to move faster as your eyes dart between the line, your watch, and your boarding pass?

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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.

Calling for a balanced approach to criminal background checks

Yesterday, the EEOC continued its series of public meetings examining hiring practices as alleged employment barriers, covering employers’ use of arrest and conviction records. According to the EEOC’s press release, it is trying to strike a balance between workplace fairness and workplace safety. Let’s hope that the EEOC is serious about being balanced in its approach to this important issue.

The EEOC’s position has always been that blanket policies that disqualify people with criminal backgrounds violates Title VII. Instead employers should undertake a job-by-job, employee-by-employee, check-by-check analysis of the relationship between the conviction and the ability to perform the job. At the minimum, the EEOC should continue this approach.

Nothing will be served by tightening the reigns on employers’ ability to conduct reasonable criminal background searches. Consider, for example, the May 2009 verdict against a Virginia assisted living facility that failed to discover that it had hired a sex offender. This example might be extreme, but it illustrates that criminal histories are necessary and relevant for many employers. Every employer does not need to check the criminal background of every applicant. However, it is imperative that the EEOC allow employers the flexibility to decide for themselves which positions warrant criminal history histories, and then which crimes disqualify a candidate from employment.

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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.

Start-up offers social media background searches; employers rejoice and privacy advocates mistakenly groan

More employers are turning to social media sites to vet potential employees. There is no doubt that sites like Facebook and Twitter offer a wealth of information about potential hires. Using these sites to vet job candidates offers a great opportunity, and also a huge risk. Using publicly available information on the Internet has the risk of disclosing protected EEO information, such as disability, age, race, or religion, or, at a minimum, raising a dangerous inference that such information was discovered and used in the hiring process.

Nearly two years ago, I cautioned employers against relying solely on online background checks to vet potential employees. I recommended using a “third-party to do the searching, with instructions that any sensitive, protected, or EEO information not be disclosed back to you.” No companies were available, though, that specialized in these types of background searches, until now.

Last month, the FTC signed-off on a year-old company that searches social media sites for employers conducting background searches on employees—Social Intelligence Corp. In last Wednesday’s New York Times, Jennifer Preston wrote a profile of the start-up that has generated a lot of online discussion:

Companies have long used criminal background checks, credit reports and even searches on Google and LinkedIn to probe the previous lives of prospective employees. Now, some companies are requiring job candidates to also pass a social media background check.

A year-old start-up, Social Intelligence, scrapes the Internet for everything prospective employees may have said or done online in the past seven years.

Then it assembles a dossier with examples of professional honors and charitable work, along with negative information that meets specific criteria: online evidence of racist remarks; references to drugs; sexually explicit photos, text messages or videos; flagrant displays of weapons or bombs and clearly identifiable violent activity.

According to Social Intelligence’s CEO, Max Drucker, its services “have turned up examples of people making anti-Semitic comments and racist remarks…. Then there was the job applicant who belonged to a Facebook group, ‘This Is America. I Shouldn’t Have to Press 1 for English.’”

I have not used Social Intelligence’s services, and I am not endorsing its product. What is appealing about it, though, is its professed ability to screen out protected EEO information:

Our technology allows us to turn around reports in 24 to 48 hours while still having social media activity about every job applicant manually reviewed. Social Intelligence Hiring presents employers with reports on only employer-defined objectionable material, such as racist remarks or behavior, explicit photos and video, and illegal activity. We flag job candidates associated with negative and positive material, filtering out their “protected class” information and reporting only relevant and desired data. Summary and detail views present easy-to-understand results, with screenshots of pertinent material.

Social Intelligence has sparked a lively debate on the Internet. The New York Times story alone has a whopping 258 comments to date. I participated in a discussion on Google+ about the New York Times article, where my opinion voicing the validity of checking employees’ social media activities was decidedly in the minority. The majority, who expressed privacy concerns, misses the mark. Social media is inherently public, and employees who do not tend to their online image risk an arduous job search.

If you want to learn more about the proper and improper uses of social media in the hiring process, Think Before You Click: Strategies for Managing Social Media in the Workplace is now available from Thompson Publishing. I also recommend part two of Stephanie Thomas’s Proactive Employer Podcast—the HR and Social Media Roundtable—airing live this Friday (July 29) at 8:30 am on BlogTalkRadio, and later available for on-demand listening at The Proactive Employer and via iTunes.

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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.

Is this what a disability analysis looks like under the ADAAA?

A lot has be written over the past couple of years predicting how the 2009 amendments to the ADA have eviscerated the definition of disability. Here’s what I wrote a couple of months ago, after reviewing the EEOC’s then-new regulations:

While the regulations make clear that “not every impairment will constitute a disability,” because of the ADAAA’s expansive definition of disability, most will…. 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.

Now, we finally have an example that starts to prove these predictions correct.

Gesegnet v. J.B. Hunt Transport (W.D. Ky. 5/26/11) concerns whether an employer failed in its obligation to reasonably accommodate an employee’s bi-polar and anxiety disorders by making arrangements for a pre-employment drug screening somewhere other than a small room. Before the court could reach the reasonable accommodation issue, it had to first address whether the employee qualified as “disabled” under the ADA. The following is the court’s searing analysis of this important threshold issue:

In difficult cases, a plaintiff usually proves disability through a combination of medical evidence and personal testimony detailing the practical impact of that medical condition. Here, Plaintiff is lacking in each area.... The Court doubts that the medical and personal evidence here is sufficient to show an actual inability to perform a basic function of life. Nevertheless, given the broad definition of disability Congress intended, the Court will assume that Plaintiff has a disability under the ADAAA.

Because employers will not be able to prove that an employee is not “disabled,” employers will be better served by focusing their ADA-compliance efforts on the two issues that now matter: avoiding discrimination and providing reasonable accommodations.

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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.