As the public policy turns

Last summer, in Alexander v. Cleveland Clinic Foundation, the Cuyahoga County Court of Appeals held that a police officer, fired after several outbursts while working traffic control, could proceed to trial with his wrongful discharge claim. He claimed that because his termination jeopardized the state’s public policy in favor of police officers enforcing the law, he should have been able to pursue his public policy wrongful discharge claim.

Three months later, the Ohio Supreme Court decided Dohme v. Eurand America, holding that to support a wrongful discharge claim, a plaintiff must identify the specific federal or state constitutional provisions, statutes, regulations, or common law that support the public policy relied upon.

Following Dohme, the Ohio Supreme Court vacated the appellate court’s decision and set it back to the appellate court for a re-do.

Second verse, same as the first. In Alexander v. Cleveland Clinic Foundation II (4/19/12) [pdf], the same panel of the same appellate court again concluded that Alexander was entitled to proceed to trial on his public policy claim.

Pursuant to Dohme, the court considered whether Alexander had clearly supported his public policy argument with a specific statement of law from the federal or state constitution, statutes, administrative rules and regulations, or common law:

Alexander claimed that public policy dictates that police officers enforce the laws of the state of Ohio; thus, discharging a police officer for enforcing the laws “would jeopardize the public policy of wanting police officers to enforce Ohio laws.” … Alexander cited R.C. 1702.80(D) in support of his public policy argument. The statute … provides that … a qualified nonprofit corporation … police department … “shall preserve the peace, protect persons and property, enforce the laws of the state.” … [H]ere, Alexander cited to “a specific statement of law” that was drawn from R.C. 1702.80(D).

The takeaway for employers—Ohio or otherwise—hasn’t changed since I first reported on Alexander last year:

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 specific 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.

WIRTW #222 (the “exhausted” edition)

Federal jury trials are exhausting. Looking forward to getting my life back.

Here’s what I read this week (during my down time, on my iPhone):

Discrimination

• New Theory of Discrimination: “Implicit Bias” — from Stephanie Thomas’s The Proactive Employer Blog
• Wall Street Journal Takes the EEOC to Task on Background Checks — from Nick Fishman’s employeescreenIQ Blog
• EEOC: Employers have no right to ask what prescription drugs employees are on — from Walter Olson’s Overlawyered
• Even a voluntary demotion can lead to a retaliation claim — from Eric Meyer’s The Employer Handbook Blog
• Happy (?) Equal Pay Day! — from Maryland Employment Law Developments
• 4 Things Employers Should Know About the ADAAA — from Workplace Insights
• Can an employer insist on regular attendance without violating the ADA? Maybe. — from Robin Shea’s Employment and Labor Insider
• Inside the Racist Mind — from Time

Social Media & Workplace Technology

• Does a Social Media Policy for Employees Apply to Contractors? — from i-Sight Investigation Software Blog
• Anatomy of an Employee Facebook Password Protection Law — from Phil Miles’s Lawffice Space
• Employers requesting Facebook passwords — from George’s Employment Blawg
• Are Employer Social Networking Accounts Protectable Trade Secrets? — from Trade Secrets and Noncompete Blog
• I Get It: 4 Ways I Can Tell You Don't Like Voice Mail (and what I think about each of them...) — from The HR Capitalist, Kris Dunn
• Is the boss spying on you? Cyber-snooping on rise — from the Palm Beach Post

HR & Employee Relations

• Why Pet Insurance Makes Sense as Part of Your Menu of Employee Benefits — from TLNT
• Just because you’re paranoid doesn’t mean they aren’t out to get you — from Evil HR Lady, Suzanne Lucas
• Employers Provide Too Little Leave — from Mike Haberman’s Omega HR Solutions
• To Handbook or Not to Handbook — from The Employer's Lawyer
• Employee Handbooks: do’s and dont’s — from Warren & Associates Blog
• Dear Evil Skippy: How Do I Avoid Offending Sensitive Co-Workers? — from Evil Skippy at Work
• Office Romances On The Rise Among Young Employees — from Fox Business

Wage & Hour

• Overtime Lawsuits On The Rise — from Overtime Lawyer Blog
• The Buddha and the Fair Labor Standards Act — from Work Matters
• Keep an Eye Out for Court’s Ruling on Pharmaceutical Sales Rep. Case — from Dan Schwartz’s Connecticut Employment Law Blog
• Clocking in early: a recipe for bogus overtime claims — from HR Cafe

Labor Relations

• Court Upholds Non-Employee Property Access Rights — from Labor Relations Update
• The NLRB and social media: The next phase and more scrutiny — from John Holmquist’s Michigan Employment Law Connection

The Bachelor as discrimination? Publicity stunt lawsuit undermines legitimate discrimination claims

This week, two African-American men filed what their attorney calls a "landmark civil rights case that will move social justice and economic equality forward." The class action lawsuit, Claybrooks v. American Broadcasting Companies, claims that The Bachelor franchise purposefully discrimination against people of color. You read that last sentence correctly. Apparently, casting some color on The Bachelor will cure all of society's discriminatory ills.

Does The Bachelor skew white? Absolutely. Are their other reality shows that skew black, or latino, or gay? You bet. Do any of them technically "discriminate" in their casting choices? Probably, because they are targeting a certain demographic for their audience. Just like The Bachelor has not cast many African-Americans, it also has not cast any septuagenarians. Why? Because their target audience would not watch, and the show would be taken off the air.

This is not discrimination. It's marketing. It's no different than McDonald's running an advertising campaign with an urban music bed and all all-Black cast.

Publicity stunts like this lawsuit undermine the real plight of African-Americans and other minorities, both in the workplace and society in general. If protected groups want people to take discrimination seriously, and treat it as a serious problem, they need to stop screaming discrimination for things like reality television casting decisions.

I’m syndicated! Announcing my launch on Workforce.com as The Practical Employer

For content, they say that five years is the magic number. For example, after five years, television shows are eligible for syndication. Apparently, the same holds true for employment law blogs, as mine will turn five in a few weeks.

This week, Workforce.com—one of the web’s most distinguished portals for all things human resources (and part of the Crain Communications family)—debuted me as one of its featured bloggers, under the title The Practical Employer.

I’m beyond thrilled, and honored, to join their exclusive club, alongside the likes of Kris Dunn, Ann Bares, and Fistful of Talent.

Thanks to Kris Dunn for introducing (and recommending) me to the Workforce people. Thanks also to the staff at Workforce.com, who’ve been great to work with while they got my micro-site up and running.

Never fear. The Ohio Employer’s Law Blog is not going anywhere. You now just have another way to read my content. Either here, or at Workforce.com, as The Practical Employer.

Don’t post those new NLRB notices—finally

On Monday, I reported that a South Carolina federal court had invalidated the NLRB’s attempt to force employers to post a statement of employees’ rights under the National Labor Relations Act. I cautioned that until you heard otherwise, employers should assume that April 30 was still a go for the new posting.

News moves fast in the world of labor and employment law. Yesterday, the D.C. Circuit [order, pdf] enjoined the whole shebang until the issues can work their way through the appellate courts:

We note that the Board postponed operation of the rule during the pendency of the district court proceedings in order to give the district court an opportunity to consider the legal merits before the rule took effect. That postponement is in some tension with the Board’s current argument that the rule should take effect during the pendency of this court’s proceedings before this court has an opportunity to similarly consider the legal merits.…The uncertainty about enforcement counsels further in favor of temporarily preserving the status quo while this court resolves all of the issues on the merits.

Ever gracious in defeat, NLRB Chairman Mark Gaston Pearce said, "We continue to believe that requiring employers to post this notice is well within the Board’s authority, and that it provides a genuine service to employees who may not otherwise know their rights under our law."

The April 30 deadline for posting the NLRB’s employee rights notice is officially dead. It could take into next year before these issues work their way through the circuit courts, not to mention a likely appeal to the Supreme Court. By then, the NLRB could be tinted red and this whole issue could be moot. In the meantime, you’re break-room is free and clear of the NLRB’s latest mission statement.

More social media woes: employee fired for “liking” gay Facebook page

According to MSNBC, an employee has sued the Library of Congress for firing him after his manager discovered that he had “liked” the “Two Dads” page on Facebook. The employee, Peter TerVeer, claims that after his manager discovered he was gay, his performance reviews turned negative. TerVeer also claims that the manager started making derogatory statements about his sexual orientation and sending religiously motivated emails.

Let me offer three takeaways for businesses from this story:

1. Title VII, like Ohio’s anti-discrimination statute, does not protect sexual orientation. Nevertheless, courts have been known to stretch the definition of gender to include sexual orientation in certain cases. Even if TerVeer doesn’t have a sex discrimination claim, the religious overtones of the manager’s emails could provide a claim based on religion.

2. Much has been made lately about employers snooping on employees’ social media activities. According to nbclosangeles.com, however, the manager only learned about TerVeer’s Facebook activities when the manager’s daughter noticed the “like” and told her dad. This fact underscores what Lafe Solomon (the NLRB’s acting general counsel) told me when we appeared on NPR together last fall—that every social media charge filed with the NLRB started with a co-worker printing out the social media post and giving the hard copy to a manager. In other words, management as much of a hobby out of snooping on its employees as some would have you believe.

3. Despite this story’s foreboding tone, employers should not think that all employees’ off-work activities are off-limits. Nevertheless, this story underscores that employers need to tread very carefully when examining what their employees do on their own time.

Don’t post those new NLRB notices just yet (maybe)

As of this moment, April 30 is still your drop-dead date to post the NLRB’s new employee rights notice. Last Friday, however, a South Carolina federal court put that date, and the NLRB’s entire poster itself, in grave jeopardy. In Chamber of Commerce of the United States v. NLRB [pdf], the United States District Court for the District of South Carolina invalidated the NLRB’s attempt to force employers to post a statement of employees’ rights under the National Labor Relations Act.

According to the Court, the NLRB’s powers are reactive, not proactive. Thus, its Congressionally-mandated duty is to prevent and resolve unfair labor practice charges and to conduct representation elections—both of which must be initiated by an outside party’s filing. The NLRB’s proposed posting of employee rights, however, is proactive—it requires employers to do something without any filing by an outside party. As such, the NLRB exceeded its statutory authority.

The South Carolina court is not the first to rule on this issue. Last month, a different federal court reached the opposite conclusion and upheld the NLRB’s right to require most of the posting. The NLRB is reviewing its options as to whether it will postpone the posting requirement nationwide in light of the latest ruling. Likely, it will take some time for these issues to weave their way through the appellate courts for an ultimate resolution.

We now have two conflicting district court opinions. As an employer, what are you supposed to do? For now, and until you hear otherwise, assume that April 30 is still a go for the new posting. In the meantime, this case—which is the strongest rebuke to date of the power-grab by this administration’s agencies—is a huge victory for employers.

[Hat tip: Labor Relations Today]