WIRTW #227 (the “replay” edition)

Yesterday afternoon, I appeared on the The Proactive Employer, talking all things workplace social media with host Stephanie Thomas, fellow guest Molly DiBianca (of the Delaware Employment Law Blog and @MollyDiBi). Thanks to Stephanie for a great hour.

Luckily for you, if you missed yesterday’s hour live, its available for replay two different ways:

• Streaming via The Proactive Employer.
• Download via iTunes.

Now there’s no excuse for not listening. Enjoy your holiday weekend.

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

Discrimination

• How to lose a disability discrimination case in 5 easy steps… — from Eric Meyer’s The Employer Handbook Blog
• Second Circuit = The Avengers? Judges Create Alter Ego Liability — from Dan Schwartz’s Connecticut Employment Law Blog
• EEOC: Confederate Flag = Hostile Work Environment? — from Phil Miles’s Lawffice Space
• Religious employers, the ministerial exception and single moms—again! — from Robin Shea’s Employment and Labor Insider
• Title VII does not protect employee terminated because of illegal alien spouse — from EmployerLINC
• Another EEOC Systemic Lawsuit Bites The Dust In A Favorable Ruling For Employers — from Workplace Class Action Litigation
• Time to check the dress code? Can an employee be “too hot?” — from John Holmquist’s Michigan Employment Law Connection
• Getting Fired for Being “Too Hot” — from Mike Haberman’s Omega HR Solutions

Social Media & Workplace Technology

• Illinois Passes Password-Privacy Law — from Delaware Employment Law Blog
• Are You a Victim of Social Media Discrimination? — from Social Media Today
• Don’t Search Cyberspace Without This — from Mark Toth’s Manpower Employment Blawg
• iPhone thief’s Disney cruise adventure goes on public display in owner’s Facebook album — from The Verge
• IBM stung by BYOD pitfalls — from TheAppleBlog

HR & Employee Relations

• Do temporary employees have rights? — from Evil HR Lady, Suzanne Lucas
• Expanding Ban the Box Legislation Impacts Small Business — from COSE Mindspring
• I Do Not Like to Fire People — from You’re the Boss Blog
• Five Employment Law Takeaways From American Idol — from TLNT
• Dear Evil Skippy: Can My Supervisor Make Me Use Less Perfume? — from Evil Skippy at Work
• 6 Reasons You’ll Be Investigating More Workplace Bullying This Year — from i-Sight Investigation Software Blog
• Whoomp, There It Is: Employees Are Skipping Work To Watch Sports — from Workplace Diva
• Female bus driver claims her boss licked her face — from New York Daily News
  

Wage & Hour

• Spring Tune-Up: Gas Stations Should Review Their Pay Policies and Recording Practices to Steer Clear of the DOL’s Recent Enforcement Initiative Targeting Them — from Wage & Hour Defense Blog
• Court Sends Collective Action to the Showers on Wage Claim for Time Spent Changing Clothes and Blows the Whistle on the “Clock” Starting when Traveling From the Locker Room — from Trade Secret / Noncompete Blog
• Taking FMLA leave does not affect employee’s obligations under non-FMLA attendance policies — from Employment Law Matters

Labor Relations

• What the U.S. Chamber Of Commerce Doesn’t Want You to Know About Your Workplace Rights — from Donna Ballman’s Screw You Guys, I’m Going Home
• 2nd Circuit Overturns NLRB, Holds Starbucks Can Limit Employee Union Flair — from Randy Enochs’s Wisconsin Employment & Labor Law Blog

Ohio Supreme Court upholds statewide workplace smoking ban

On November 7, 2006, Ohio voters passed a ballot initiative to
enact the Smoke Free Workplace Act. It became effective on December 7, 2006, and is codified in R.C. Chapter 3794.

Generally, to adhere to the Act, businesses must do four things:

• Prohibit smoking in any enclosed “public place” or “place of employment,” including areas immediately adjacent to locations of ingress or egress.
• Post no-smoking signs—with the toll-free enforcement number, 1-866-559-OHIO (6446)—at all entrances or areas of transition between non-regulated and regulated areas.
• Remove ashtrays and other tobacco receptacles.
• Not discharge, refuse to hire, or in any manner retaliate against anyone for exercising any rights under the workplace smoking ban law.

Yesterday—in Wymsylo v. Bartec, Inc. [pdf]—the Ohio Supreme Court unanimously upheld the constitutionality of the Smoke Free Workplace Act.

If you have been dragging your feet in enforcing this law in your business, or have been hoping for a reprieve from the Ohio Supreme Court, you are out of luck. You need to ensure that your business complies with the Act and is smoke free.

In addition, whether you are in Ohio or another state, and your business is to be smoke-free, you should adopt a formal smoke-free policy, which includes formally designating where on your property employees are allowed to smoke (if allowed at all).

Even terminations over “genitalia sandwiches” can generate lawsuits

The court properly granted summary judgment because reasonable minds could only conclude that appellant’s actions in photographing an inmate placing his penis on a sandwich and then feeding the sandwich to another inmate were manifestly outside the scope of employment.

I can promise you read that sentence correctly. It is the Ohio Supreme Court’s digest summary for Cantwell v. Franklin Cty. Bd. of Commrs. (Ohio Ct. App. 5/22/12) [pdf] You can do a double-take, a triple-take, or as many takes as you need. It is still going to say that a Franklin County jail guard, while delivering bologna sandwiches to inmates, asked an inmate to place his penis on a sandwich, took of cell phone photo of said penis sandwich, and fed said sandwich (sans penis) to another unsuspecting inmate while taunting him.

The lawsuit concerned whether these actions were in good faith, and not manifestly outside the scope of Cantwell’s employment or official responsibilities, which would determine whether the county had a duty to defend Cantwell in the prisoners’ subsequent civil rights lawsuits.

What could Cantwell possibly argue?

It was commonplace for jokes and pranks to take place at the Franklin County jail between inmates, as well as hazing to take place between deputies, and such, if not condoned, were certainly not discouraged. Thus, appellant contends, because these jokes were encouraged, promoted, and tolerated, his “joke” to give Copeland a genital-tainted sandwich was not manifestly outside the scope of his employment.

The explanation is a whole lot funnier than the joke. Needless to say, none of this amused the court, which affirmed the trial court’s dismissal of Cantwell’s claim.

From this mess of a case, I draw the following lesson. You cannot always guard against lawsuits by ex-employees. I am certain that given these facts, the county never dreamed it would be defending a lawsuit by this employee. Yet, he found a reason to sue. No termination (no matter the reason) is bulletproof. Even the most rock-solid termination can result in a lawsuit. That fear, however, should not hamstring employers from making appropriate termination decisions based on legitimate reasons. The best you can do with any termination is to make sure every “i” is dotted and every “t” is crossed (with the help of counsel, if needed), and let the chips fall where they may.

Radio/Podcast appearance: Being Smart About Social Media in the Workplace

This Thursday, May 24, at 3 pm, Molly DiBianica (proprietor of the Delaware Employment Law Blog and tweeter extraordinaire @MollyDiBi) and I will be guests on The Proactive Employer, hosted by Stephanie Thomas. 

We will be discussing all things social media for employers, including providing tips on workplace social media policies, offering suggestions on how to ensure employees are using social media safely, and talking about how companies can be be smart about social media.

We will also be taking live questions, both via Twitter with the hashtag #TPE, and via call-in at (866) 472-5790. If you can’t join us live, the episode will also be available for streaming or download.

Molly and I go way back in the blawgosphere. She also contributed the chapter on privacy to my social media book, Think Before You Click, Strategies for Manging Social Media in the Workplace. Please tune in for what should be a very engaging and interesting conversation.

The obligatory post about the EEOC’s charge filing data

The EEOC has released state-by-state charge filing statistics for the past three years. Which types of discrimination are popular (and not so popular) with Ohio employees?

• Race discrimination: 35.4% of all charges
• Retaliation: 32.9%
• Disability: 29.6%
• Age: 28.6%
• Sex: 27.3%
• National Origin: 5.3%
• Religion: 3.5%
• Color: 1.7%
• Equal Pay: 0.9%
• Genetic Information: 0.3%

These numbers shouldn’t be that much of a surprise to any businesses.

What is more interesting (at least to me) is how Ohio fairs when compared to the other 49 states. For fiscal year 2011, there were 3,137 total charges of discrimination filed with the EEOC in Ohio. Overall, that number comprises 3.1 percent of all charges filed nationwide, placing Ohio 12th among the 50 states.

Ohio is 7th in overall population, yet 12th in EEOC filings. Is is possible that Ohio is more friendly to employers than smaller states such as Georgia, North Carolina, Virginia, Tennessee, and Alabama, all of which rank ahead of Ohio in the number of EEOC filings per year? Probably not. Instead, let me offer a different explanation. Ohio’s employment discrimination statute is quirky. It allows employees to proceed directly to court without first exhausting their administrative remedies by filing a charge with the EEOC (or its state equivalent).

Ohio businesses are facing their fair share of discrimination claims; they are just facing them in courts instead of in the agencies. This quirk fails Ohio businesses. Employees are able to bypass the EEOC’s crucial role in filtering out frivolous claims. Until Ohio’s legislators step up to the plate and fix this anomaly of our discrimination statute, our state’s business community will continue to be disadvantaged by defending the bulk of discrimination claims in a more costly and time-consuming judicial venue.

Can a poor performance review count as an “adverse action?”

For an act to be considered an “adverse employment action” sufficient to support a discrimination claim, it must constitute
”a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Traditionally, a negative performance review does not constitute an adverse employment action, unless “the evaluation has an adverse impact on an employee’s wages or salary.” Or does it?

In Goldfaden v. Wyeth Laboratories (5/14/12) [pdf], the Sixth Circuit concluded that a warning letter issued to an employee constituted an “adverse action” even though the employee quit her job before she could suffer any consequences from the warning:

She received a warning letter in September that limited her year-end performance evaluation to a three on a scale of one to five. However, she never made it to the year-end evaluation, as she resigned three weeks after receiving the evaluation. The parties dispute what the effect of the lower evaluation would have been…. We cannot know for sure what would have happened, but there was a possibility that she would have received a lower bonus. This doubt is sufficient to survive summary judgment….

This result is even more troubling because the same opinion affirmed summary judgment for the employer on Goldfaden’s constructive discharge claim. In other words, the warning letter was not so intolerable that it compelled Goldfaden to quit, but it nevertheless could rise to the level of an adverse employment action because it could, maybe, have resulted in a lower year-end bonus.

It’s cases like this one that make it so difficult (and often frustrating) to attempt to predict outcomes for clients.

WIRTW #226 (the “press 9 for more options” edition)

You’d think that with all the posting I do about Labor & Employment Law, it’s the only area in which my law firm—Kohrman Jackson & Krantz—practices. You’d also be very wrong. Our diverse practice also covers, for example, telemarketing law.

In fact, my parter, Brett Krantz, recently co-published an article on this issue:

Brett Krantz, Chair of the Litigation group, and associate Melissa Yasinow have co-authored an article with Mark Rasch, the director of Cybersecurity and Privacy Consulting at technology company CSC. The article, entitled Please Press #5 Now: How Businesses Can Use UETA and E-SIGN to Create Signed, Written Contracts Over the Telephone, explains how businesses can use recent federal and state pro-technology laws to create signed, written contracts over the telephone. Connections Magazine, the nation’s premier magazine for the telemarketing and teleservices industry, will be publishing a shortened version of the article in its upcoming July/August Issue. The full article has already been published online in Connections Magazine’s “White Papers” Section. Please click here to access the full article.

Enjoy!

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

Discrimination

• Is Being Gay a Choice? Should It Be Protected at Work? — from Jessica Miller-Merrell’s Blogging4Jobs
• “Teacher fired over pregnancy can sue religious school” — from Howard Bashman’s How Appealing
• EEOC now publishes charge data, by state. Have a look… — from Eric Meyer’s The Employer Handbook Blog
• New Decision On The EEOC’s Pre-Suit Investigation Requirement, Giving Nod To Investigation And Conciliation Tactics Criticized By Eighth Circuit — from Workplace Class Action Litigation
• EEOC, alcoholism and discrimination: an interesting new persepctive — from Employment Law Bits
• Hiring manager: “How old are you?” — from CareerDiva by CareerDiva, Eve Tahmincioglu
• Texas Federal Court Decision Addresses ADA and FMLA Issues Arising From Employee's Return From Alcohol Rehab — from Employer Law Report
• New York EEOC Intends to Enforce “Ban the Box” — from employeescreenIQ Blog
• Funding Blocked for EEOC Enforcement Guidance on Criminal Records — from National Review Online

Social Media & Workplace Technology

• Use social media? Memorize these vital 12 words — from Evil HR Lady, Suzanne Lucas
• A Call for Lean and Mean Social Media Policies — from Social Media Today
• HR Struggling with Facebook Snitches — from SHRM
• Social Media background checks: Big brother in reverse — from Mike VanDervort’s The Human Race Horses
• Relax – You’ll Never, Ever be Asked For a Facebook Password — from TLNT
• Why Delaware’s Proposed Workplace Privacy Act Is All Wrong — from Molly DiBianca’s Delaware Employment Law Blog
• Slowly Stripping Away Privacy Rights? — from Social Media Employment Law Blog
• Are Employees’ Social Media Connections The Property Of Their Employer? — from Eric Welter’s Laconic Law Blog
• Alleged voyeur boss cannot pursue Computer Fraud and Abuse Act claim — from Internet Cases
• Mobile Stats — from HR Examiner with John Sumser
• Avoiding an E-discovery Nightmare in a Workplace Investigation — from i-Sight Investigation Software Blog

HR & Employee Relations

• Could You Handle Being an Employee? — from You’re the Boss Blog
• Gratuitous Sex or Sex for Gratuities? An HR Story — from Robin Schooling’s HR Schoolhouse
• How to Remove Lies From Your Resume (and LinkedIn) Without Getting Fired… — from The HR Capitalist, Kris Dunn
• Lies, Statistics, and Resumes — from costofwork
• Lessons from Yahoo’s CEO debacle: Look into EVERY job candidate — from HR Cafe
• Terminated for Minor Offense Committed 40 Years Ago — from The Proactive Employer Blog
• Dear Evil Skippy: Should We Allow Dogs At Work? — from Evil Skippy at Work
• Carefully Defining “For Cause” Termination in Employment Contract Critical to Avoid Paying for Misconduct — from Jason Shinn’s Michigan Employment Law Advisor

Wage & Hour

• When can an employer fire an employee for medical leave fraud? — from Robin Shea’s Employment and Labor Insider
• Two Health Conditions Combine to Qualify for FMLA — from Phil Miles’s Lawffice Space
• Seventh Circuit: Pharmaceutical Sales Reps Are Exempt Administrative Employees — from Healthcare Employment Counsel
• Seventh Circuit Concludes that “Travel Time” Following Clothing Change Is Not Compensable, Setting Up a Circuit Split — from Wage & Hour Counsel
• Compensatory Time Is Only For Exempt Employees, As Law Firm Class Action Settlement Illustrates — from Wage & Hour - Development & Highlights
• Wage-and-hour litigation outpacing all other workplace class actions — from Business Insurance

Labor Relations

• District Court Strikes Down National Labor Relations Board's New “Quickie” Election Rule — from Seth Borden’s Labor Relations Today
• NLRB Suspends New Election Rules After Court Ruling — from Dan Schwartz’s Connecticut Employment Law Blog
• Your “At-Will” Policy is in Danger! — from Mike Haberman’s Omega HR Solutions