WIRTW #244 (the recap edition)

All week, I’ve be posting the one question I’d ask each of the Presidential and Vice Presidential candidates during the upcoming debates:

• President Obama: protections for working families
• Mitt Romney: LGBT civil rights
• Vice President Biden: union rights and the National Labor Relations Act
• Paul Ryan: Ayn Rand and fiscal conservatism

I’m not the only one who has been posting these questions this week. My fellow employment law bloggers have also been chipping in: Dan Schwartz (who came up with the idea at his Connecticut Employment Law Blog), Eric Meyer (The Employer Handbook Blog), Robin Shea (Employment and Labor Insider), and Donna Ballman (offering a perspective from the plaintiffs’ bar at Screw You Guys, I’m Going Home).

If nothing else, we’ve been consistent with our themes:

• Family Leave Rights: Eric’s question to Mitt Romney
• Paycheck fairness and pay equity: Donna’s question to Barack Obama, Eric’s question to Joe Biden, Eric’s question to Barack Obama
• LGBT Rights: Robin’s questions to Joe Biden; Dan’s question to Barack Obama; Dan’s question to Paul Ryan
• Union issues: Dan’s question to Joe Biden, Eric’s question to Paul Ryan, Donna’s question to Joe Biden, Robin’s question to Paul Ryan

Suffice it to say that these four issues comprise some of the biggest issues facing employers now and for the next four years. Let’s hope we get some clarity on these from the candidates as we get closer to November 6.

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

Discrimination

• Changing Attitudes: Why Employers Need to End Pregnancy Discrimination — from TLNT
• Employer’s “Shockingly Thin” Response to Anonymous Harassment = $3.5 Million in Punitive Damages — from Lorene Schaefer’s WinWinHR
• EEOC Announces Plan for Class Warfare — from Molly DiBianca’s Delaware Employment Law Blog
• EEOC’s Multifaceted Effort To Aggressively Target Employer Policies Potentially Having “Disparate Impact”  — from Stoel Rives World of Employment
• Rhode Island bans discrimination against homeless persons — from Walter Olson’s Overlawyered

Social Media & Workplace Technology

• 13 Things That Will Disappear From the Workplace In Five Years — from Workplace Diva
• Law and Order: Human Resources Unit — from HR idiot
• Time for the Right Discussion About Social Media in the Office — from Social Media Today
• Will Gen Y Have Professional Regret for Embedding Facebook? — from The HR Capitalist, Kris Dunn
• Read My Hips: Is the Trade Secret Litigator Waffling on a Key Provision of the Protecting American Trade Secrets and Innovation Act of 2012? — from Trade Secret Litigator Blog
• Pondering damages under the federal Computer Fraud and Abuse Act — from Work Matters
• “Reply All” Claims Another Victim — from Phil Miles’s Lawffice Space
• Social Media Training [infographic] — from Sharlyn Lauby’s hr bartender

HR & Employee Relations

• Mindy Kaling on Chronicling the American Workplace — from Harvard Business Review
• Background Checks That Don’t Invite Employment Litigation — from i-Sight Investigation Software Blog
• Employers: Meet members of the next generation of your workforce — from John Holmquist’s Michigan Employment Law Connection
• What can I do about a coworker who never wears a bra? — from Ask a Manager
• What Do You Say To A Naked Co-Worker? — from Evil Skippy at Work
• Politickin’ in the World of HR — from HR Schoolhouse

Wage & Hour

• Beware Draconian USDOL Settlement Terms — from Wage and Hour Laws Blog
• 7 Paycheck No-No’s the Department of Labor is Focusing On — from Wisconsin Employment & Labor Law Blog

Labor Relations

• Replacement employees: how not to do it — from Andrew Scott-Howman’s WorkFace
• Telling An Employee “Don’t Discuss It” Can Be Illegal — from Troutman Sanders HR Law Matters
• NLRB Finally Delivers Knockout Blow to Broad Employer Social Media Policies — from Jason Shinn’s Michigan Employment Law Advisor

My one question for Paul Ryan: Are you a real fiscal conservative?

Today ends my series of debate questions for the Presidential and Vice-Presidential candidates. On the hot seat is Paul Ryan. Here's my question:

You cite Ayn Rand as your inspiration for getting involved in politics. You even gave copies of her novel Atlas Shrugged as Christmas gifts to your staff. Among other philosophies, Atlas Shrugged endorses the belief that a society's best hope rests on adopting a system of pure laissez-faire government. Philosophically, you would seem opposed to government economic intrusions, yet you voted in favor of both the TARP bank bailout and the auto industry bailout. How do you reconcile your claim to be a fiscal conservative with your pro-regulatory Congressional votes on these two key federal bailouts?

Tomorrow I'll wrap up this series by discussing the posts of my fellow blawgers: Dan Schwartz, Eric Meyer, Robin Shea, and Donna Ballman.

My one question for Joe Biden: labor unions and the NLRB

Today, I continue my series on the one debate question I would ask each of the Presidential and Vice-Presidential candidates. Today’s target—Vice President Joe Biden. Here’s my one question:

Mr. Vice President, Governor Romney has accused your administration of supporting a partisan, pro union National Labor Relations Board. Historically, you have been outspoken of your support of the Employee Free Choice Act, which would provide employees the right to form a labor union without the benefit of a secret ballot election. At a Labor Day rally in Detroit earlier this month, you publicly stated that organized labor is one of the reasons why American is recovering. The American business community would not-so-respectfully disagree with you, and believe that activist federal agencies and labor unions are dangerously holding us back.

What would you say to business owners of all sizes who believe that your administration’s labor policies have stifled their ability to operate in today’s economic climate?

My one question for Mitt Romney: civil rights

Today, I continue my series on the one debate question I would ask each of the Presidential and Vice-Presidential candidates. Today’s target—Mitt Romney. Here’s my one question:

You are on record opposing the Employment Non-Discrimination Act, a bill that would make it illegal under federal law for employers to discriminate on the basis of sexual orientation or gender identity. Yet, you have also publicly stated that you support anti-discrimination and equal rights for all.

Which is it? Are you in favor of equal rights for all, or you do believe that it permissible for employers to deny rights to individuals based on their sexual orientation or their gender identity? And, if the Employment Non-Discrimination Act came across your desk in the Oval Office, would you sign it or veto it?

The one question I would ask President Obama during the debates

Four years ago, Dan Schwartz, on his Connecticut Employment Law Blog, answered the following question: What One Question Regarding Labor & Employment Law Would You Ask the Candidates During the Debates?

With this election cycle's debates on the horizon, Dan has put out a challenge for his fellow employment law bloggers to answer the same question this year. Today through Thursday, I'll be providing the one question I would ask each of the two Presidential and two Vice-Presidential candidates. On Friday, I'll recap the best from my blogging brethren.

First up, President Obama:

Four years ago, you campaigned on a promise to help working families. You promised to expand the FMLA to cover smaller employers, and promised that employers would be required to provide paid sick days to all employees. Yet, four years later, your track record on these issues is spotty at best. The only accomplishment to which you can point in the Lilly Ledbetter Fair Pay Act. What can you say to working families to earn their trust that the next four years will be different?

Tomorrow, my question for Mitt Romney.

Firing an employee? Tell them! (don’t Milton the termination)

Office Space is one of the great movies about the modern workplace. One of its key plot lines involves sad sack employee Milton Waddams, who mumbles through the movie about his missing stapler and ever-moving desk. Amazingly, the company had laid off Milton years earlier without anyone telling him. When the company fixed a computer glitch that had accidentally kept him on the payroll, Milton finally cracked and burned down the office.

Lawrence v. Youngstown (9/21/12) [pdf], decided last week by the Ohio Supreme Court, gives employers a reason other than arson-avoidance to tell employees that they’ve been fired.

Ohio’s workers’ compensation retaliation statute (Revised Code 4123.90, for those counting) is an odd-duck. It has a two-part statute of limitations. First, the aggrieved employee must provide the employer “written notice of a claimed violation … within the 90 days immediately following the discharge, demotion, reassignment, or punitive action taken.” If the employee sends that written notice, he or she then has up to 180 days from the adverse action to file suit. The 90-day notice requirement is “mandatory and jurisdictional,” and no employee is permitted to file a workers’ compensation retaliation claim without sending the written notice.

In Lawrence, the Court answered a question of timing — does that 90-day period begin to run on the effective date of the discharge or when the employee receives notice of the discharge?

The facts of Lawrence illustrate the potential problem. On January 7, 2007, Youngstown suspended Lawrence without pay from his position with the city. Two days later, the city converted the suspension to a termination, and mailed, via regular mail a letter notifying him of the termination. Lawrence claimed he did not learn of his discharge until February 19, 2007. On April 17, 2007, Lawrence’s attorney sent the city a letter stating that Lawrence intended to bring a lawsuit claiming unlawful workers’ compensation retaliation. When he filed his lawsuit a few months later, the city sought, and obtained its dismissal on the basis that Lawrence’s letter was untimely based on his termination date.

The Ohio Supreme Court reversed. It held that normally the start of the 90-day period triggers from the actual discharge date. It also created an exception when the employee both did not know of the discharge and could not reasonably have learned of it:

A limited exception to the general rule that the 90-day period for employer notice … runs from the employee’s actual discharge…. The prerequisites for this exception are that an employee does not become aware of the fact of his discharge within a reasonable time after the discharge occurs and could not have learned of the discharge within a reasonable time in the exercise of due diligence. When those prerequisites are met, the 90-day time period for the employer to receive written notice … commences on the earlier of the date that the employee becomes aware of the discharge or the date the employee should have become aware of the discharge.

As the Court reminded us in the Lawrence opinion, “Usually, an employer will make a good-faith effort to communicate the fact of the employee’s discharge to the employee when it occurs…. The employer commonly will use a method like personal notification, hand delivery of notice, or a certified letter.” In other words, if you are going to fire an employee, don’t you owe it to him as a human being to at least tell him?

Testing a New RSS Service. Fingers Crossed, Here it Goes

To my loyal readers,

I'm using this rainy Saturday afternoon in Cleveland to test a new feed service, as it appears that Feedburner, who I've used since this site launched more than five years ago, is shutting down. To hedge against all of you losing me, I'm migrating to a new RSS service. If all goes according to plan, you should see no breaks in your daily updates. Otherwise, it's back to the drawing board for me.

Hopefully you be reading me on Monday as usual.

All the best,
Jon