Officially announcing the release of The Employer Bill of Rights

After a “soft launch” a couple of weeks ago, I am officially announcing the launch of my latest book, The Employer Bill of Rights: A Manager’s Guide to Workplace Law. It is a practical handbook designed to help business owners, managers, supervisors, and human resources professionals navigate the ever-changing maze of labor and employment laws, rules, and regulations. Among other topics, it covers—

• How to make personnel decisions that will help avoid costly litigation.
• The who, what, why, when, where, and how of each of the major federal employment discrimination laws.
• Cutting-edge human resources issues such as wage-and-hour disputes and managing social media in the workplace.
• How to hire and fire employee without the fear of an expensive lawsuit.
• How to control operations by implementing legal policies and procedures related to plant shut downs, employee scheduling, work rules, and the maintenance of confidential information.
• The importance of following the Golden Rule in all personnel matters.

I’m really proud of how the book turned out.

I have a lot of people to thank. Here’s what I wrote in the book’s acknowledgements:

First, I must thank all of my partners at Kohrman Jackson & Krantz and, especially, our managing partner, Marc Krantz, who knows that there exist many ways for a lawyer to market himself or herself. He never hesitated when I suggested that I author a legal blog or write a book (or two), and for his support I am eternally grateful.

Before attending law school, I worked at a few jobs that were less than glamorous. To all of the people who shared those jobs with me, thank you for unknowingly and unwittingly helping me craft my views on the modern workplace.

Thank you to anyone who has ever published anything I have written, quoted me in an article, hosted me on a show, invited me to speak at an event, re-tweeted one of my 140-character thoughts, or linked to my blog. Without each of you, this book would not have occurred.

I thank the wonderful publishing team at Apress—Jeff Olson, Robert Hutchinson, and Rita Fernando—along with the publisher itself. They made the writing process work smoothly, which was essential as I juggled the authoring of this book with my full-time legal practice. They also patiently put up with my less-than-perfect execution of their SharePoint site as we worked though the editorial process.

Thank you to my parents, who taught me the value of education without ever pushing too hard.

Finally, thank you to my family—Colleen, Norah, and Donovan. You put up with my late-night and early-morning blogging and writing. You sometimes suffer in my absence caused by long workdays, late nights, or out-of-town trips. Yet, if I did not know that you are always standing behind me, none of it would be worth it. Thank you for loving me for who I am and supporting me for what I do.

If you want to purchase the book, it’s available in several places and formats:

• Amazon – paperback
• Amazon – Kindle (available soon)
• Barnes & Noble – paperback
• eBook

I have also been told that an iBooks version is coming, although Apple runs a tad behind the others on its approvals.

I cannot think of a better stocking stuffer for that special business owner, manager, supervisor, or HR professional in your life. Amazon will even gift wrap it for you.

---

If you want to hear me talk about the book, you can tune in tomorrow to Stephanie Thomas’s The Proactive Employer. I’ll be live at 3 pm (and available on-demand thereafter) to discuss why employers need a bill of rights, the areas of greatest legal concern for employers, and how my book can help businesses make informed decisions and hedge against the biggest errors that too often result in expensive and time-consuming lawsuits.

Does an unaccepted offer of judgment moot a wage and hour case? Genesis HealthCare Corp. v. Symczyk

Let’s say an employee sues you, claiming that you withheld certain wages owed under the Fair Labor Standards Act. In addition to defending the lawsuit, you make her what is called an “offer of judgment” to make her whole for all wages she claims she is owed (including any liquidated damages and attorneys’ fees). Does the offer render her lawsuit—that she not only brought on her own behalf, but also sought on behalf of a class of similarly situated co-workers—moot? Alternatively, does the fact that she sought relief on behalf of others keep her lawsuit alive, despite the fact that she no longer has any personal skin in the game?

Yesterday, the Supreme Court took up this important issue in Genesis HealthCare Corp. v. Symczyk. The precise issue the Court considered during yesterday’s oral argument is as follows:

Whether a case becomes moot … when the lone plaintiff receives an offer from the defendants to satisfy all of the plaintiff’s claims.

In the case below, the 3rd Circuit offered a succinct explanation of the doctrine of mootness, its role in federal court cases, and how an offer of judgment impacts it:

Article III of the United States Constitution limits the jurisdiction of the federal courts to “actual ‘Cases’ and ‘Controversies.’” When the issues presented in a case are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome, the case becomes moot and the court no longer has subject matter jurisdiction. An offer of complete relief will generally moot the plaintiff’s claim, as at that point the plaintiff retains no personal interest in the outcome of the litigation. Thus, whether or not the plaintiff accepts the offer, no justiciable controversy remains when a defendant tenders an offer of judgment under Rule 68 encompassing all the relief a plaintiff could potentially recover at trial. (internal quotations omitted).

Genesis HealthCare is not the Supreme Court’s first rodeo on the issue of offers of judgment in class actions. In Deposit Guar. Nat'l Bank v. Roper, the Court previously expressed its concern about the use of offers of judgment to strategically “pick off” claimants:

Requiring multiple plaintiffs to bring separate actions, which effectively could be “picked off'” by a defendant’s tender of judgment before an affirmative ruling on class certification could be obtained, obviously would frustrate the objectives of class actions; moreover it would invite waste of judicial resources by stimulating successive suits brought by others claiming aggrievement.

How did the Court address these issues in yesterday’s oral argument, and what do the Court’s questions tell us about how the Court may rule in the case?

• The left wing of the Court hit the employer’s counsel hard on the perceived underlying unfairness of dismissing an entire collective action based on the inactivity of one member of the class.
• The right wing of the Court hit the plaintiff’s counsel hard on the underlying procedural issues, and the inability of a named plaintiff to do anything to affect the interests of potential class members who have yet to join the lawsuit.

The outcome of this case is difficult to gauge based on the oral argument, because both potential sides of the Court attacked the underlying issues so differently. Again and again, however, this pro-business Court has revealed itself to be pro-employee in its recent employment rulings. Reading the tea leaves, I predict that the Court rules against the employer and concludes that the unaccepted offer of judgment did not moot the collective action in this case.

A copy of the oral argument transcript is available for download [pdf] from the Supreme Court’s website.

Do you have a workplace policy banning the electronic recording of conversations?

In Jones v. St. Jude Medical Center (6th Cir. 11/8/12) the employee—fired for surreptitiously recording workplace conversations about her job performance—sought the protection of Title VII’s anti-retaliation provision. She argued that because she made the recordings to gather evidence about discrimination, the act of recording was protected activity under Title VII. Because her employer fired her because of the recordings, she claimed retaliation.

The 6th Circuit concluded that the hospital fired Jones because she violated its policy against recording conversations in the workplace, and rejected her retaliation claim.

Importantly, the Court further concluded that Title VII’s anti-retaliation provision does not protect the act of recording in and of itself:

Jones has not shown why she needed to violate the recording policy in order to oppose defendants’ alleged discrimination. She might have taken notes of the conversations, obtained the same information through legal discovery, or simply asked her interlocutors for permission to record. Jones argues that her conduct was reasonable because the recordings were not illegal, did not breach confidential information, were not disruptive of business operations, and were not disseminated beyond the litigation. But none of this suggests that the recording policy was illegitimate or that it would have been futile to oppose the alleged discrimination in ways that did not violate the policy. In light of these considerations, we decline to hold that Jones’ recordings were protected.

What can an employer learn from this case?

1. If you do not have a policy against employees recording conversations in the workplace, you might want to consider drafting one. You never know when an employee is going to try to smuggle a recording device into a termination or other meeting. The proliferation of smart phones has only made it easier for employees to make recordings, both audio and video. Why not address this issue head-on with a policy?

2. Your managers and supervisors should assume that everything they say is being recorded, if not electronically, then via a mental note that an employee can later jot down. You would be surprised how many plaintiffs keep copious, contemporaneous journals of the goings-on in the workplace. Managers and supervisors need to be vigilant in making sure that they do not say anything that could come back and bite your company in later litigation.

WIRTW #251 (the “sphere of influence” edition)

I’ve been at this blogging thing for more than five-and-a-half years. In that time, I’ve had some awesome opportunities come my way as a result.

• My second book—The Employer Bill of Rights: A Manager’s Guide to Workplace Law—is now available on Amazon. (More details on this next week.)
• My first book, which I co-authored with some friends—Think Before You Click: Strategies for Managing Social Media in the Workplace—remains available for download from Thompson.
• I’ve appeared too many times to count on Stephanie Thomas’s fabulous Proactive Employer Podcast, including my upcoming appearance next Thursday at 3 pm to promote The Employer Bill of Rights.
• I’ve done other radio appearances, including DriveThruHR and NPR.
• I’ve spoken at myriad seminars (thanks to SmartBusiness for my most recent speaking gig, an engaging panel on the legal risks of social media at this week’s Midwest Social Media Summit)
• And, I’ve been syndicated. In addition to reading my posts right here at the Ohio Employer’s Law Blog, you can also read many republished on Crain’s Workforce, under the byline, The Practical Employer.

This week, I’m adding another opportunity. For the past four years, I’ve edited Business Management Daily’s Ohio Employment Law Newsletter. Next month will be its last print edition. The publisher offered to continue our relationship online, and will publish my content in blog form. My newest blog, Business Management Daily’s The Legal Workplace, debuted yesterday. It will feature original content every other Thursday.

If I could just figure out how to clone myself, this would all become a whole lot easier.

Here’s the rest of what I read the past two weeks:

Discrimination

• Holiday Tale From A Jewish Guy Who Wears A Chai — from We Know Next
• Dislike of religious accommodations at work does not constitute a hostile work environment — from Warren & Associates Blog
• We’re More Passive Than We Predict When Sexually Harassed, New Study Shows — from EmployerBrief
• Employer Can Depose All 94 Claimants In EEOC Lawsuit — from Molly DiBianca’s Delaware Employment Law Blog
• You’re Damned if You Aid and Abet Discrimination or Interfere with an Employees’ Rights to Be Free of Illegal Discrimination — from damnedif
• Percentage of EEOC Sexual Harassment Claims Filed by Men on the Rise, But… — from Philip Miles’s Lawffice Space
• Not “Set for Life”: Boomers face layoffs, discrimination, and bullying at work — from Minding the Workplace
• Is Breastfeeding Bias the EEOC's Next Battleground? — from Employer Defense Law Blog
• The most blunt same-sex sexual harassment judicial opinion...evah! — from Eric Meyer’s The Employer Handbook Blog
• HR’s Dirty Little Secret – We don’t like to hire Vets — from Tim Sackett at Fistful of Talent
• The Bump In The Room — from the New York Post

Social Media & Workplace Technology

• Smartphone growth expected to slow again in 2013 — from Boy Genius Report
• Facebook activity did not support claim that employee solicited former employer’s clients — from Internet Cases
• AmLaw 2012 survey shows strong iPhone, iPad support at the most profitable law firms — from iPhone J.D.

HR & Employee Relations

• Are “90 Day Probationary Periods” for New-Hires Required By law? — from Texas Employer Handbook
• The Case for an Employee Rehire Policy: Coach Synder Effect — from Jessica Miller-Merrell’s Blogging4Jobs
• U.S. Supreme Court Holds that Arbitrator, Not State Court, Must Determine Enforceability of Noncompetition Agreement — from Russell Cawyer’s Texas Employment Law Update
• Transitioning from Employee to Shareholder: Businesses and Individuals Need to Pay Careful Attention to Noncompete Agreements — from Jason Shinn’s Michigan Employment Law Advisor
• How much does it cost companies to lose employees? — from Evil HR Lady, Suzanne Lucas
• Recording Rants — from Workplace Prof Blog
• Oversharing at Work: When Gossip Turns Into Something More — from Dan Schwartz’s Connecticut Employment Law Blog
• Flu + Crowded Office + Antibiotic Overuse = Disaster for Your Company? — from Mike Haberman’s Omega HR Solutions
• Taming the Workplace Bully — from Bloomberg Businessweek

Wage & Hour

• Holiday “Volunteer” Services Might Be FLSA Employment — from Wage and Hour Laws Blog
• The Culture Wars: Exempt vs. Non Exempt — from Robin Schooling’s HR Schoolhouse
• Overtime Pay Lawsuits On The Rise — from Overtime Lawyer Blog
• Are you Risking a Wage and Hour Lawsuit when Employees Volunteer? — from i-Sight Investigation Software Blog
• What!?! Time Caring for Mom in Las Vegas is FMLA Leave — from Jeff Nowak’s FMLA Insights
• Recordkeeping: The Often Overlooked Element of FMLA Compliance — from Stoel Rives World of Employment
• Is Your Company A “Large Employer” Subject to “Obamacare”—Understanding the 50 full-time Equivalent Threshold — from California Labor and Employment Defense Blog

Labor Relations

• Petition for EFCA — from Labor Relations Institute
• The Wal-Mart Not-Strike by the Not-Labor Union — from LaborPains.org
• Mandatory Employment Arbitration Agreements and the NLRB: (DR) Horton Hears a “Who”? — from The Emplawyerologist
• NLRB Developments Post-Election – What The Future May Hold In Labor Relations — from Labor Relations Update

Certification harassment? 6th Circuit rejects claim under FMLA

Have you ever heard of certification harassment? Me neither, until I read Smith v. City of Niles [pdf] last week.

According to Leddrew Smith, from 2002 to 2009, the city asked him to provide six separate medical certifications for his 2001 back injury. Those repeated requests, per Smith, exceeded the FMLA’s limits, and therefore interfered with his right to medical leave.

Here is what the 6th Circuit said about Smith’s claim:

He is right about one thing: An unreasonable demand for recertification may interfere with FMLA rights. He is wrong about another: The City’s requests all fit comfortably within the regulatory boundaries.

The FMLA has a maze of regulations that define when an employer can ask for a recertification of a serious health condition. Critical to this case is the rule that permits an employer to require a recertification any time that the “circumstances described by the previous certification have changed significantly.”

In this case, the court relied upon Smith’s changed circumstances to conclude that the city had not harassed him with its recertification requests.

• In one instance, Smith took six days of medical leave, instead of the two days estimated in his prior certification. Per the 6th Circuit, “If an employee desires more time off than described in the prior certification, the employer may require updated information from a physician. That is all that happened.”
• In another instance, Smith sought to change his work restrictions to accommodate a new physical limitation. Per the 6th Circuit, “The City responded with a request for recertification because the new limitations were not listed on the previous certification. That is the epitome of a reasonable recertification request.”

In other words, following the rules does not equate to harassment. Now if we can all just figure out those annoying rules…

Who is a supervisor under Title VII? (Vance v. Ball St. Univ.)

On Monday, the Supreme Court heard oral argument in one of the key employment cases it will hear this term—Vance v. Ball St. Univ. This case asks whether one can qualify as a supervisor under Title VII if one is given any authority to direct and oversee another’s daily work, or if supervisory status is limited to those who have the power to hire, fire, demote, promote, transfer, or discipline others.

This distinction is an important one. Under Title VII, employers are vicariously liable for actionable harassment committed by supervisors that results in a tangible employment action.

The appellate court in Vance drew a bright line, and concluded that “supervisor” means “direct supervisor,” with the power to directly affect the terms and conditions of the plaintiff’s employment via hiring, firing, demoting, promoting, transferring, or disciplining; the mere authority to direct an employee’s daily activities is not enough.

Yet, in the Supreme Court, not even the employer, who won in the court of appeals, could argue that the 7th Circuit got the standard right. At oral argument, the employer argued that the bright line drawn by the appellate court is too rigid:

[S]omeone who does control virtually all aspects of one’s schedule but yet lacks the authority to hire, fire, or demote, nevertheless still would be qualified….

By way of example, the employer’s counsel referred to the following hypothetical posed by Justice Kagan:

There’s a professor, and the professor has a secretary. And the professor subjects that secretary to living hell, complete hostile work environment on the basis of sex, all right? But the professor has absolutely no authority to fire the secretary. What would the Seventh Circuit say about that situation?

Even though no one argued in support of the bright-line rule articulated by the 7th Circuit, I predict that the 7th Circuit’s rule will carry the day when the Court issues its opinion sometime next year. The Justices were clearly looking for a bright line to guide future cases, and appear to be wary of adopting a middle-of-the-road approach that will only serve to muddle the issue in future cases. If we are lining up Justices to get aboard one line or the other, the 7th Circuit’s stricter approach should garner more votes than the loosey-goosey standard the plaintiff sought.

For any additional background on this case, visit SCOTUSblog. The oral argument transcript is available from the Supreme Court’s website [pdf].

It’s a Blawg 100 Three-Peat

Edward James Olmos once said, “I didn’t get into this business to get awards.” And while that may be true, it certainly is nice to be recognized.

Yesterday afternoon, the ABA Journal announced its annual list of the top 100 legal blogs, which it calls the Blawg 100. I was fortunate enough to be part of this list in 2010 and 2011, and equally fortunate that the ABA Journal recognized me again this year as part of its 6th annual list.

The labor & employment blawgosphere is among the richest, and I am pleased that I am sharing this honor with five fellow bloggers, each of whom I consider a friend.

• Dan Schwartz’s Connecticut Employment Law Blog
• Molly DiBianca’s Delaware Employment Law Blog
• Phil Miles’s Lawffice Space
• Jeff Nowak’s FMLA Insights
• Donna Ballman’s Screw You Guys, I’m Going Home (which wins for the best title among the group, hands down)

(For what it’s worth, this list is short by two. Next year, I hope that Eric Meyer’s The Employer Handbook Blog and Robin Shea’s Employment & Labor Insider join the list.)

Now comes the part where I graciously and unapologetically ask for your help. Between now and December 21, you have the opportunity to vote for your favorite blawg. All you need to do is go to www.abajournal.com/blawg100, register, and vote. You’ll find my blog under the “Labor & Employment” category. Thank you for your support.

Congratulations to all of the winners, and thank you to the ABA Journal for, once again, deeming my little project worthy of your recognition. It is much appreciated.

Tomorrow, I start my march toward a four-peat, with a post on the Supreme Court’s oral argument in Vance v. Ball State Univ., which will (maybe) answer the important question of who qualifies as a supervisor under Title VII.