“Never pick a fight with an ugly person, they’ve got nothing to lose.”*

In Sunday’s New York Times, University of Texas economics professor Daniel Hamermesh penned an op-ed entitled, “Ugly? You May Have a Case.” He argues that the law should protect “ugly” the same as race, sex, and disability. Here’s his thesis:

[B]eing attractive … helps you earn more money…. The effects are not small: one study showed that an American worker who was among the bottom one-seventh in looks, as assessed by randomly chosen observers, earned 10 to 15 percent less per year than a similar worker whose looks were assessed in the top one-third—a lifetime difference, in a typical case, of about $230,000.

How could we remedy this injustice? … A more radical solution may be needed: why not offer legal protections to the ugly, as we do with racial, ethnic and religious minorities, women and handicapped individuals?

The lawyer in me says, “Ca-ching!” The management advocate in me says, “Wait, what?!” The good-looking-but-won’t-stop-you-dead-in-your-tracks-good-looking-guy says, “This might make sense.” And the realist in me says, “Can you imagine a more subjective, unworkable standard for discrimination litigation?”

In all seriousness, Professor Hamermesh, you got your name in the Sunday Times. Now go back to Austin and never let this silliness see the light of day again. Thank you.





[Hat tip: ABA Journal]

*Robin Williams

“May” I have another (lawsuit)? One word sinks employer’s efforts to force arbitration

It’s no secret that I’m not a fan of arbitration of employment disputes. Conventional wisdom says that binding arbitration keeps down costs and speeds up resolutions. I’ve yet to be convinced. Many employers, though, continue to drink the arbitration Kool-Aid by requiring employees sign alternative dispute resolution agreements as part of their employment. Sherwin-Williams appears to be one of them. Its choice of one key word in its Problem Resolution Procedures, however, cost the paint company its chance to litigate an ex-employee’s age discrimination claim in its forum of choice.

The word at issue in Hyde v. Sherwin-Williams Co. (8/25/11) [pdf] is “may.” Sherwin-Williams’s Problem Resolution Procedures provide:

These procedures may be used by employees to challenge the unresolved differences regarding application of Company policies, procedures or practices which affect their employment situation. These procedures are intended to be an exclusive, final and binding method to resolve all covered claims to the fullest extent permitted by law. Failure to use these procedures may preclude employees from pursuing any other legal right they may have in court or in other forums.

An Ohio appellate court concluded that the use of the word “may” disposed of Sherwin-Williams’s attempt to force an ex-employee to litigate his age discrimination claim in court:

We find that Sherwin-Williams’ repeated representations that an employee’s failure to follow the PRP “may” preclude that employee from seeking redress in outside forums expressly contradicts appellants’ position that the procedures outlined in the PRP are the exclusive method for resolving employee disputes. By virtue of the language used … appellants implied that there would be circumstances where an employee would not be prevented from pursuing resolution of their legal claims in outside forums, i.e., that the PRP procedures are not mandatory, final, or binding.

What’s worse for Sherwin-Williams is that 8 years ago another panel of the same appellate court reached the same conclusion about the same language in a prior version of the same PRP.

What’s the takeaway from this case for employers? In drafting agreements and policies, words matter. If you mean “must,” say it. Don’t say “may” (especially when a court has already told you that “may” doesn’t pass muster).

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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 #190 (the “Network” edition)

I love Twitter. Why, you ask? Because it routines scoops the major news outlets for breaking stories.

Tuesday was a perfect example. I felt my building shake at 1:51 pm. My first reaction was that The Avengers set a few blocks down the street had blown up something big, but the sway was too pronounced and too long to have resulted from a man-made Hollywood explosion. I immediately turned to Twitter, and confirmed what I had thought—it was an earthquake. With the click of mouse and the scroll of bar, I learned in an instant that my colleagues and friends all up and down the east coast had, to varying degrees, felt what I had felt. CNN had the story 10 minutes later, and Cleveland.com a few minutes after that. Who needs the news when you have Twitter?

And now for something completely different…

I’d be remiss if I didn’t remind everyone that nominations are still open for the ABA Blawg 100 (until Sept. 9), and the LexisNexis Top 25 Labor & Employment Law Blogs (until Sept. 12). Thanks to everyone who’s voted for me so far, or will vote over the next couple of weeks.

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

Discrimination

• Creating an Evacuation Plan in Light of the Earthquake? Don’t Forget the ADA – from SmartHR
• Economic Damages in Wrongful Termination Litigation – from Stephanie Thomas’s The Proactive Employer Blog
• The Dangers of Looking the Other Way: Dominique Strauss-Kahn and Sexual Harassment – from Jason Shinn’s Michigan Employment Law Advisor
• “Drinking is a ‘handicap,’ fired former Florida State administrator says” – from Walter Olson’s Overlawyered
• How to Get Sued Big Now – from Manpower Employment Blawg
• The Old “Too Ugly” Defense… – from Tim Eavenson’s Current Employment
• I Was Treated Differently From My Coworkers. Can I Sue For Discrimination? – from Donna Ballman’s Screw You Guys, I’m Going Home
• Pregnancy Discrimination Still a Major Issue – from i-Sight Investigation Software Blog
• Is it lawful to not hire a pregnant woman because she’ll need time off for maternity leave? – from Heather Travar

Social Media & Workplace Technology

• Breaking News: Steve Jobs Resigns From Apple – from Social Axcess
• A short history of social media (infographic) – from Kevin O’Keefe’s Real Lawyers Have Blogs
• Merriam-Webster Dictionary Now Includes ‘Tweet’, ‘Social Media’, ‘Crowdsourcing’ And More – from Techcrunch
• How Much Of Our Personal Lives Should Be Under Employer Surveillance? – from Kashmir Hill’s The Not-So Private Parts
• Two Weeks Without My Smartphone – from In-house ACCess
• Portability of Social Media Accounts: Here's Your Poster Child Example… – from The HR Capitalist, Kris Dunn

Employee Relations & HR

• Want to be on the Real World? Think twice. – from Rob Radcliff’s Smooth Transitions
• I’m Not In Love, So Why Do My Knees Feel Weak? Workplace Crisis Management – from Delaware Employment Law Blog
• Hurricane Preparedness in Connecticut: Come On Irene?– from Dan Schwartz’s Connecticut Employment Law Blog
• Use of Background Checks Requires Common Sense – from Michael Haberman’s Omega HR Solutions
• Considering the Unlimited Vacation Route: Risks & Benefits – from Ann Bares at Compensation Force
• Can my employer stop me from using the bathroom? – from Ask a Manager

Labor Relations

• Chef Mickey’s Server Alleges Unfair Firing over $63 – from DIS Unplugged Blog
• Tweet freely! Employers get some guidance about social media – from Robin Shea’s Employment & Labor Insider
• Even in the Internet Age, You Can’t Call Your Boss a ‘Super Mega Puta’ – from Above the Law
• The federal labor law guide to social media (non)compliance – from Eric Meyer’s The Employer Handbook Blog
• NLRB Social Media Memo Part I - NLRA-Protected Acts and Part II - Unprotected Conduct – from Philip Miles’s Lawffice Space
• Social Media Clarity or More Murky Water From the NLRB? – from Minnesota Labor & Employment Law Blog
• Bosses React To Workers’ Anti-Social Networking – from Wall Street Pit

Wage & Hour

• Which Employment Law Would You Vaporize? – from Russell Cawyer’s Texas Employment Law Update
• Can An Employer Pay An Exempt Employee Extra Compensation? – from Wage & Hour Insights
• 4-Part Test Announced for Distinguishing Unpaid Sabbatical and Paid Vacation Leave – from Joe’s HR and Benefits Blog
• 4th Circuit Restricts Scope of FLSA Retaliation Protection – from Workplace Prof Blog
• Second Circuit Analyzes Scope of Material Adverse Employment Actions in a Family Medical Leave Act Retaliation Claim – from Employment Matters Blog
• Employee Who Abused FMLA Leave Around the Holidays Properly Terminated – from FMLA Insights

Until next week:

(Network has aged extremely well. 1976 could easily be 2011. It was eerily prescient.)

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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.

BREAKING: NLRB publishes final rule on mandatory posting of labor rights

Last December, the NLRB proposed a rule requiring employers to post notices informing their employees of their rights as employees under the National Labor Relations Act. This morning, the NLRB published its Final Rule [pdf] mandating this posting. The notice (pages 185 – 190 of the Final Rule) provides a comprehensive list of employee’s rights under the NLRA, including their right to act together to improve wages and working conditions, to form, join and assist a union, to bargain collectively with their employer, and to choose not to do any of these activities. It also provides examples of unlawful employer and union conduct, and instructs employees how to contact the NLRB with questions or complaints.

Here is what the NLRB wants employers to know about the mechanics of this new posting requirement:

• It takes effect November 14, 2011.
• It is mandatory for all employers who are subject to the NLRA—union and non-union (which is nearly all private sector businesses).
• Beginning November 1, each NLRB regional office will be able to provide a copy of the notice free of charge, or employers can print it directly from www.nlrb.gov.
• The NLRB will also make translated versions available, which must be posted at workplaces where at least 20% of employees are not English-proficient.
• Employers also must post the notice on an intranet or an internet site if they customarily post personnel rules and policies there.
• The rule has no record-keeping or reporting requirements.
• The NLRB may treat any failure to post as an unfair labor practice.

Non-union employers, how do you feel about having to tell your employees that they have the right to form a union? That’s what I thought.

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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.

Keeping head in sand risky to employers in discrimination cases

I’ve written before about the honest-belief rule—if an employer honestly believed in the proffered reason for its action, an employee cannot establish pretext, even if the employer’s reason is ultimately found to be mistaken, foolish, trivial, or baseless. Jones v. Nissan N. Am. (6th Cir. 8/19/11) [pdf] illustrates that an employer’s honest belief, though, cannot coexist with a disregard of the cold, hard facts.

In Jones, the employer argued that it could not be liable for an ADA violation by refusing to return an injured employee to work because it held an honest belief that an order of the workers’ compensation court prohibited the employee’s return. The Court disagreed:

Nissan’s defense … was based on the premise that Nissan imposed unsubstantiated medical restrictions on Jones because it believed the chancellor’s decision and order required it to do so…. In the instant case, however, notwithstanding Nissan’s arguments to the contrary, it is clear beyond peradventure that the chancellor’s order did not direct Nissan to restrict Jones from continuing in the trim-fit position he was performing at the time of the workers’ compensation trial. The order only directs Nissan to pay certain benefits…. Most glaringly, Nissan concluded that Jones was restricted from using “hand tools,” despite the fact that the chancellor did not make a single finding with regard to Jones’s ability to use hand tools in his job.

Courts give wide latitude to employers who make informed decisions based on all available facts and circumstances. As this case illustrates, employers who ignore the facts, or fail to make a thorough investigation to uncover all reasonably available facts, don’t fair so well. Strive to be the former; do not succumb to the ease of the latter.

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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.

Why people hate lawyers

Suppose you apply for a job. The job has certain dress code requirements for all employees. You, however, think the mandatory clothing will look unflattering on your over-40-year-old body. Do you…

1. Look for a different job?
2. Apply anyway and deal with the requirements?
3. Sue for age discrimination?

If you’re most people, you choose either of the first two options. If you’re attorney Roy Lester, however, you opt for number three.

When the New York Office of Parks, Recreation, and Historic Preservation refused to hire 58-year-old Lester as a lifeguard, he sued, claiming age discrimination. The lawyer-by-day claims that the job requirement that he wear certain swimwear discriminates against him because of his age. From CNN.com:

The rule, still in operation, requires that to be re-hired as a lifeguard, participants must wear either “boxers, briefs or board shorts” when completing a qualifying swim test…. Lester who believes that “as you age you should show less skin” prefers jammers; tight lycra shorts that end a couple of inches above the knee. The bankruptcy attorney claims “Speedos are not appropriate for a 61-year-old” and refused to wear loose-fitting shorts because they would slow him down.

According to the Wall Street Journal’s Law Blog, “Peter Brancato, spokesman for New York state’s Office of Parks, Recreation and Historic Preservation, [said] that there never was a policy specifically requiring lifeguards to wear Speedos. For the annual swim test, lifeguards are required to wear regular work gear, which for men could be a Speedo, a boxer-type swimsuit or a board suit.”

In other words, the employer subjected Lester to the same dress code as every other employee and applicant. Guess what? That’s not age discrimination, even according to the EEOC: “In general, an employer may establish a dress code which applies to all employees or employees within certain job categories.” Exceptions include dress codes that conflict with an employee’s religious practice or disability. The law makes no such exception, however, for an employee’s age.

(An appellate court just reinstated Lester’s claim, following a dismissal by the trial court. That fact does not make me think his claim is any less ridiculous).

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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 garners $2.6 million fee award … but not how you think

A Michigan federal judge has slammed the EEOC for its “reckless sue first, ask questions later strategy.” After 11 years of litigation, the court awarded the EEOC’s target, Cintas Corporation, $2,638,443.93 in attorneys’ fees, costs, and expenses from the agency.

The court justified its astronomical award based on the EEOC’s failure to investigate before filing suit, and dilatory tactics before and after filing suit:

• The EEOC did not investigate the specific allegations of any of the thirteen allegedly aggrieved persons until after the Serrano plaintiffs filed their initial complaint, and after it filed its own complaint years later.
• The EEOC did not engage in any conciliation measures as required by § 706 prior to filing suit on behalf of the named Plaintiffs.
• The EEOC did not identify any of the thirteen allegedly aggrieved persons as members of the “class” until after the EEOC filed its initial complaint.
• The EEOC failed to make an individualized reasonable cause determination as to the specific allegations of any of the thirteen named plaintiffs in this action….

During the course of its involvement in this case, the EEOC filed, and lost, over a dozen motions. Furthermore, Cintas was forced to file a number of motions because of the EEOC’s failure to properly respond to Cintas’ discovery requests. Cintas succeeded on all of these motions, and the EEOC’s conduct served only to prolong this decade-long litigation…. In his March 2, 2010 Order Granting Motion to Compel, Magistrate Judge Scheer stated, “There appears to be no purpose for [the EEOC’s] position [to withhold the questionnaires] other than to increase the difficulty and expense of the defense of this action by Cintas.”

Employers, if you’ve ever been sued by the EEOC, you know it is never fun to be in its crosshairs. Unlike you, the agency does not pay lawyers to litigate for it, and has seemingly unlimited resources to make your lives a living hell. Take heart, though, that there are judges who will hold the EEOC’s feet to the litigation fire. As this case illustrates, it is possible to beat the EEOC at its own game. But, it’s going to take perseverance.

A copy of the Court’s 31-page opinion is available here.

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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.