Please don’t tell your employees for whom to vote

Have you read the story about a certain presidential candidate telling employers that’s it’s okay to suggest to their employees how to cast their votes in the upcoming election? Here’s the quote, via The Guardian.

I hope you make it very clear to your employees what you believe is in the best interest of your enterprise and therefore their job and their future in the upcoming elections. And whether you agree with me or you agree with President Obama, or whatever your political view, I hope — I hope you pass those along to your employees. Nothing illegal about you talking to your employees about what you believe is best for the business, because I think that will figure into their election decision, their voting decision and of course doing that with your family and your kids as well.

Governor Romney is correct about one thing—it is not illegal for employers to talk to their employees about the upcoming election and suggest how to vote. Indeed, as Professor Paul Secunda points out at the Yale Law Journal Online, employers may be able to go so far as to “compel their employees to listen to their political views at such meetings on pain of termination.” According to the Proactive Employer Blog, “employers justify their actions countering that rather than controlling or coercing workers, they are simply educating them.”

There are some laws covering this type of conduct. The federal government criminalizes intimidation, threats, or coercion for the purpose of interfering with one’s right to vote one’s choice in a federal election. A few states (Michigan, for example) expressly prohibit employers from discharging or otherwise coercing employees to influence their votes in political elections. Ohio is not one of those states.

Legal or illegal, however, you need to ask yourself whether holding captive audience meetings to discuss political issues, threatening employees’ jobs, or mandating their attendance at political events is a valid business practice. How you answer the question of whether you think it’s okay to try to shape or influence your employees’ votes helps to define the kind of employer you are. Voting is an intensely personal choice. I don’t think it’s my business how my family members cast their votes. I certainly don’t think it’s an employer’s business how its employees cast their votes. Voting booths have privacy curtains for a reason. Exercise some discretion by not invading that privacy of your workers.

More on telecommuting as a reasonable accommodation

Two months ago, I reported on Core v. Champaign County Board of County Commissioners, which, in denying a motion to dismiss, concluded that the employee’s complaint had sufficiently pleaded the issue of whether the employer’s decision to deny her request to telecommute as a reasonable accommodation violated the ADA.

The case involved an employee with an alleged sensitivity to certain perfumes worn by her co-workers. She claimed that her employer unlawfully denied her request to work from home as an accommodation for her chemical sensitivity. In denying the motion to dismiss and allowing the case to proceed, the court concluded that technological advances may make telecommuting an appropriate accommodation in certain cases.

Last week, that same court decided that this was not the right case to recognize telecommuting as an accommodation, and dismissed the employee’s lawsuit on the employer’s motion for summary judgment. On the specific issue of telecommuting, the court ruled as follows:

With regard to Plaintiff’s request to work from home as an accommodation, the Sixth Circuit has agreed with the general proposition that an employer is not required “to allow disabled workers to work at home, where their productivity inevitably would be greatly reduced.” The Sixth Circuit also recognizes, however, the possibility of exceptions to the general rule “‘in the unusual case where an employee can effectively perform all work-related duties at home [.]’”

Here, Defendant points to evidence that Plaintiff’s position … required her to meet with non-employee clients regarding services, inspect and certify in-home daycare facilities, conduct and attend training sessions, input data into a state database only accessible at the … facility, and maintain physical files that are to be restricted to the … facility. Defendant also points to Plaintiff’s own admissions that she cannot perform all of the essential functions of her position at home. Plaintiff points to no evidence rebutting these facts. Accordingly, the Court finds that the requested accommodation that Plaintiff be permitted to work from home is not reasonable.

This decision highlights two important points:

1. It does not take much for an employee to survive a motion to dismiss. A motion to dismiss merely tests the legal sufficiency of the complaint. In other words, reading the complaint in a light most favorable to the plaintiff, does it plausibly state a claim upon which a jury could award relief. It is a preliminary motion brought at the earliest stage of the case. In most cases, it is denied. When denied, it is rarely reflects on the merits of the case.

2. While telecommuting as a reasonable accommodation remains the exception, the line that separates exception from rule is shifting as technology makes telecommuting more feasible. If you want to be able to defend a workplace rule that employees work from work, and not from home, consider implementing the following three-step process:

• Prepare job descriptions that detail the need for time spent in the office.
• Document the cost of establishing and monitoring an effective telecommuting program.
• If a disabled employee requests telecommuting as an accommodation, engage in a dialogue with that employee to agree upon the accommodation with which both sides can live (whether it’s telecommuting or something else).

The real problem with individual liability

As Senate Bill 383—Ohio’s attempt at comprehensive employment discrimination reform—weaves its way through the legislative process, a lot of blood is going to be spilled. In fact, it started yesterday in the comments to my post discussing the legislation.

One of the key battlegrounds will be the issue of whether Ohio’s discrimination law should provide for liability of managers and supervisors for their own individual acts of discrimination. My friends from the plaintiffs’ bar (and, yes, they are my friends) accuse me of protecting those who should be punished. Nothing could be less accurate.

To put this issue into context, I need to take a step back and explain why individual liability is an issue at all. It is universally accepted that Title VII does not provide for the individual liability of supervisors and managers. Ohio’s counterpart, however, is different. In 1999—in Genaro v. Central Transport—the Ohio Supreme Court held that contrary to federal law, Ohio’s state employment discrimination statute renders supervisors and managers personally liable for their own discriminatory acts.

S.B. 383 eliminates this difference, and brings Ohio’s statute in line with its federal counterpart by eliminating individual liability.

Opponents of this legislation argue that individual liability for managers and supervisors is needed to properly deter discriminatory and harassing behavior and hold accountable those who perpetrate it.

This argument is a fallacy. Employees aggrieved by invidious and intentional discrimination or harassment have claims available against the individual perpetrators—assault, battery, intentional infliction of emotional distress, invasion of privacy, and defamation, to name just a few. These civil remedies are in addition to criminal penalties that one can seek for the most egregious misconduct.

Opponents of this legislation argue that it protects sexual predators.

In addition to being offensive, headline grabbing hyperbole, this argument also is a fallacy. If you believe that the employment discrimination laws should punish predatory behavior, then the availability of a remedy should neither depend on the employment status of the accused, nor the statute under which the suit is brought. Yet, currently, only managers and supervisors can be held liable. One can never sue a non-supervisor or non-managerial co-worker for discrimination, no matter how bad the conduct. Moreover, one can bring suit against a manager or supervisor under state law; federal law provides no such remedy. If we are really concerned about punishing predators, then we shouldn't differentiate between supervisors and non-supervisors, or between state and federal laws.

Opponents of this legislation argue that the only reason employers want to eliminate individual liability is to expand the availability of the removal of cases to federal court.

This argument is also a fallacy. When an Ohio plaintiff sues a non-Ohio company in state court under state law, the employer can take the case to federal court. Adding a local manager or supervisor as a defendant eliminates this possibility. The reality is that if a plaintiff wants to keep a case in state court, he or she will find a cause of action to name a non-diverse individual defendant, whether or not a statutory claim exists against that individual under the employment discrimination statute.

By focusing on the rare example of a workplace sexual predator, opponents of S.B. 383 gloss over the real harm caused by individual liability. Consider this example. Jane Doe, a supervisor for ABC Company, has to fire a poor performing employee. She has counseled the employee repeatedly for the past two years, but his performance has not improved. Unfortunately for Jane Doe, this employee happens to be the only African-American in her department. Five years after the termination, Jane Doe’s doorbell rings at 9 p.m. She answers her apartment door to find a process server, lawsuit in hand. The employee she had terminated five years earlier has sued Jane Doe, in addition to her company, for race discrimination. Ms. Doe had done nothing other than her job. Now, she is forced to defend against allegations of discrimination and bigotry.

This example is much more common than the workplace sexual predator that the opponents of S.B. 383 hold out as the standard bearer. There is little, if any benefit to keeping individual liability as a part of Ohio’s employment discrimination statute, and it is a key facet of this reform that must become part of the law of this state.

Major reform to Ohio’s discrimination laws introduced in state senate

Ohio’s employment discrimination laws leave a lot to be desired. They expose employers to claims for up to 6 years, render managers and supervisors personally liable for discrimination, contain no less than 4 different ways for employees to file age discrimination claims—all with different remedies and filing periods, and require no filing with the state civil rights agency as a prerequisite for filing a civil lawsuit.

Yesterday afternoon, Senate Bill 383 was formally introduced in the Ohio Senate. It is a business-friendly attempt at comprehensive reform of Ohio’s employment discrimination statute.

Among its key reforms and amendments, S.B. 383:

• Creates a universal 365-day statute of limitations for all employment discrimination claims.

• Clarifies that the inclusion of “religion” as a protected class does not include those working in a ministerial capacity.

• Unifies the filing of age discrimination claims to the same procedures and remedies as all other protected classes.

• Requires individuals to elect between filing an administrative charge with the Ohio Civil Rights Commission, or filing a discrimination lawsuit in court, and making clear the the election of one bars the other.

• Prioritizes mediation and conciliation for all charges filed with the OCRC.

• Establishing an affirmative defense to claims not alleging an adverse, tangible employment action, when 1) the employer exercised reasonable care to prevent or promptly correct the alleged unlawful discriminatory practice or harassing behavior, and 2) the employee failed to take advantage of any preventive or corrective opportunities provided by the employer or to otherwise avoid the alleged harm.

• Eliminates individual liability for managers and supervisors.

• Caps noneconomic and punitive damages based on the size of the employer.

This bill presents a tangible opportunity to fix a broken law. Ohio’s current employment discrimination statute is so different from both its federal counterpart and the similar laws of other states that it places Ohio at a competitive disadvantage. By paralleling much of the federal employment discrimination statutes, S.B. 383 restores balance and predictability for Ohio employers.

Focusing on the elimination of individual liability for discrimination claims, the Ohio Employment Lawyers Association, a vocal group of plaintiff-side employment lawyers, has already labeled this legislation as “protecting sexual predators.” Nothing could be further from the truth. The legislation leaves intact all common remedies employees have if they are subjected to predatory behavior in the workplace—assault, battery, intentional infliction of emotional distress, invasion of privacy, and criminal sanctions. S.B. 383 merely brings Ohio in line with federal law and the law of most states on this issue.

Now comes the hard part—getting this bill passed. If you believe S.B. 383 presents the necessary reform of a broken system, call and email your state senator and urge him or her to support this bill. Getting S.B. 383 passed will be an uphill battle, but it is a battle worth fighting to bring meaningful reform to a broken statute.

Employment Law Blog Carnival: The 007 Edition

“A dry martini,” he said. “One. In a deep champagne goblet.”

“Oui, monsieur.”

“Just a moment. Three measures of Gordon’s, one of vodka, half a measure of Kina Lillet. Shake it very well until it’s ice-cold, then add a large thin slice of lemon peel. Got it?”

“Certainly monsieur.” The barman seemed pleased with the idea.

“Gosh, that’s certainly a drink,” said Leiter.

Bond laughed. “When I’m … er … concentrating,” he explained, “I never have more than one drink before dinner. But I do like that one to be large and very strong and very cold, and very well-made. I hate small portions of anything, particularly when they taste bad. This drink’s my own invention. I’m going to patent it when I think of a good name.”

Ian Flemming, Casino Royale, Ch. 7 (1952).

This month marks the 50th anniversary of the world’s most famous movie spy, James Bond. Since many have compared my suaveness and sophistication with that of 007, celebrating Bond is a fitting topic for my edition of the monthly roundup of the best that the employment law blawgosphere has to offer.

 

007 is always on guard. In fact, it’s how he starts every movie. In 2012, one of the biggest issues from which employers need to be on guard is the National Labor Relations Board. According to John Holmquist’s Michigan Employment Law Connection, this includes keeping track of how employees use corporate email systems. And, according to Heather Bussing at the HR Examiner, employers also need to be on guard against overly broad workplace policies.

 

007 has never gotten anyone pregnant (as far as we know) despite ample opportunities. He did get married once, though, at the end of On Her Majesty’s Secret Service, only to have his arch-nemesis, Ernst Stavro Blofeld, kill his bride a mere hours after ceremony. Her untimely demise prevented the pair from ever procreating. If Bond did have children, however, he’d want to read up on the workplace rights of pregnant women. Two good places to start? No, Seriously - EEOC Targeting Pregnancy Discrimination, from Phil Miles’s Lawffice Space, and Pregnancy Discrimination Continues to Present Hurdle for Women, from Randy Enochs’s Wisconsin Employment & Labor Law Blog.

 

Live and Let Die brought some color to the James Bond series. Its villain, Mr. Big, was known as the Voodoo Baron of Death. The movie took Bond to the jazz joints of Harlem, to New Orleans, to the Everglades, and finally to the Caribbean. It also features one of the first on-screen mixed-race love scenes. (Interesting fact: Entertainment Weekly reports that the scene was edited from the film for its theatrical run in South Africa). If Bond can embrace diversity, shouldn’t we all? See The Benefits of Embracing Diversity in the Workplace, from CPEhr’s Small Biz HR Blog. Or, if the whole voodoo thing freaks you out, I recommend you read Employment Law Made Un-Scary, the ADA, at Mark Toth’s Manpower Employment Blawg, to calm you down.

 

The first 14 James Bond movies featured Lois Maxwell as Miss Moneypenny, the secretary of Bond’s boss and the head of MI6, M. Maybe M needs to read 5 Ways Not to Handle a Sexual Harassment Complaint, from the i-Sight Investigation Software Blog, in case Moneypenny ever gets tired of Bond’s cheesy come-ons and lodges a complaint. Does Bond really have the hots for Moneypenny, or is it just a game to him? Maybe they all need to read If you hire only people you have the hots for, is that sex discrimination?, from Robin Shea’s Employment & Labor Insider. Or, given how many foreign agents Bond has bedded over the years, maybe M should read $$$ reasons to have a second-language anti-harassment policy, from Eric Meyer’s The Employer Handbook Blog.

 

Goldfinger, the most iconic James Bond movie, involves a plot to steal America’s gold supply from Fort Knox. What if, instead, it was about an employee blowing the whistle on someone planning to do something illegal at a bank. Take a look at A New Whistleblower Retaliation Statute Grows Up: Dodd-Frank is the new Sarbanes-Oxley, from Dan Schwartz’s Connecticut Employment Law Blog, before you take action against that whistleblower. Something tells me that in the coming years, as these Dodd-Frank whistleblower claims mature, a lot of employers are going to feel like Bond strapped to that table.

 

No James Bond movie has ever been set in Canada. In fact, only one, The Spy Who Loved Me, even filmed in our neighbor to the North. According to Stuart Rudner, writing at the HR Examiner, Employment is Different in Canada. It looks like spy movies are different up their too.

 

Finally, the opening chase scene in Casino Royale ends with Bond taking on an entire army inside the Nambutu Embassy. If 007 was a U.S. citizen working in a foreign embassy, would he keep his rights under our discrimination laws? According to Robert Fitzpatrick on Employment Law, the answer is yes.

 

The Employment Law Blog Carnival will return… Our gracious curator, Eric Meyer, will host next month’s Employment Law Blog Carnival, at The Employer Handbook Blog, on November 14. If you want to participate, email him a link to your employment-law-related blog post by November 9. If you want to host a future edition of the Carnival, you can also let Eric know.

Because I am hosting this month’s Carnival, WIRTW will not run this Friday, and will return with to its regularly featured slot next Friday, with #247.

Employers or employees: who owns social media accounts?

Courts and businesses are grappling over the issue of who owns a social media account—the company or the employee responsible for maintaining it. The most high-profile case is the ongoing dispute between PhoneDog and Noah Kravitz over the company’s Twitter account (which Kravitz took with him when he resigned).

Last week, Eagle v. Moran [pdf] tossed its hat into the ring on this issue.

During 2008, while Dr. Linda Eagle was president of Edcomm, she established an account on Linkedin, which she used to promote Edcomm’s services, foster her reputation as a businesswoman, reconnect with family, friends, and colleagues, and build social and professional relationships. A co-worker had access to Eagle’s password and assisted her in maintaining her account. Edcomm, through its CEO, recommended that all employees participate in Linkedin and indicated that employees should list Edcomm as their current employer. Edcomm generally followed the policy that when an employee left the company, the company would “own” the Linkedin account and could “mine” the information and incoming traffic, so long as it did not steal the ex-employee's identity.

On June 20, 2011, Edcomm terminated Eagle, accessed her LinkedIn account and changed her password, and changed the account to display the name and photograph of its new CEO.

The court dismissed Eagle’s federal statutory claims, but refused to dismiss her state law misappropriation claims. Trial is set to begin today.

What are the takeaways for businesses deciding how to deal with the ownership of corporate social media accounts? I have some thoughts, but Eric Meyer, at the Employer Handbook Blog, beat me to it:

1. Start with a written social-media-specific agreement. This document should clearly set out the rights and expectations of the company and its employee. Also, include social-media language in your other broader-based non-disclosure agreements.
2. The company should create/register the account. This will indicate that the company has some ownership stake in the account. Also, be sure to consider the terms of use that any social-media company has in place for end users.
3. Change the password when employees leave. Make sure that you know the account password at all times and immediately change it when employees leave your company. That will reduce the risk that your former employee will act first and lock you out.

More succinctly, I can sum up the one key takeaway for employers and the one key takeaway for employees:

• For employers: If you have employees creating or using a work-related social media account, before you grant the employee access, put in writing who owns the account. Otherwise, you will end up litigating the issue after the fact.
• For employees: For gods sake, exercise some common sense and never give your employer the passwords to your personal social media or other online accounts. This whole mess could have been avoided if Eagle simply kept to herself what is supposed to be private.

On second thought, go ahead and enforce those noncompetes in mergers

Typically, a decision from the Supreme Court establishes the rule of law going forward on the issue specific to that case. Acordia of Ohio, L.L.C. v. Fishel (10/11/12) [pdf], however, is not your typical case. When the pro-business Ohio Chamber of Commerce and the pro-plaintiff Ohio Employment Lawyers’ Association join together on an issue, something is up.

In Acordia I, decided earlier this year, the Ohio Supreme Court held that if a noncompetition agreement does not provide for its transfer to successor and assigns, the company’s merger with another entity terminates the agreement. That decision, however, was not the end. The losing party filed a motion for reconsideration, supported by a whole bunch of business groups (including the aforementioned Ohio Chamber of Commerce and the Ohio Employment Lawyers’ Association).

Last week, the Supremes issued its decision reversing course:

Employee noncompete agreements transfer by operation of law to the surviving company after merger. The language in Acordia I stating that the L.L.C. could not enforce the employees’ noncompete agreements as if it had stepped into the original contracting company’s shoes or that the agreements must contain “successors and assigns” language in order for the L.L.C. to enforce the agreements was erroneous. We hold that the L.L.C. may enforce the noncompete agreements as if it had stepped into the shoes of the original contracting companies, provided that the noncompete agreements are reasonable under the circumstances of this case.

You can now return to your regularly scheduled noncompetition agreements.