The importance of getting your story straight

Many discrimination cases hinge on the issue of pretext—whether the employer’s proffered non-discriminatory reason was the real reason for the adverse action, or subterfuge to cover up illegal discrimination.

One way for an employee to establish pretext is to demonstrate that the employer’s reason for the adverse action changed over time. As the 6th Circuit explained in Thurman v. Yellow Freight System: “An employer's changing rationale for making an adverse employment decision can be evidence of pretext.”

For example, in Asmo v. Keane, Inc. (another 6th Circuit case), a manager gave the employee five different reasons for her termination at the time of the dismissal. However, when the company responded to the EEOC charge, and again during that manager’s deposition, the company and manager provided different reasons. The Court held that the employer’s changed explanation required that the matter be submitted to a jury:

It is unclear how Santoro [the manager] initially came up with these [five] reasons for termination, but the fact that they were later eliminated, and they happen to be the two reasons that Santoro gave that are false, is very suspicious. It appears that Santoro offered any and all reasons he could think of to justify his decision to Asmo, whether or not they were true. Once a lawsuit was filed and Keane knew the reasons would be subject to scrutiny, it changed the justifications … to include only those that were either circumstantially true or could not be as easily penetrated as false.

What lessons can you take away from this case? An employer’s reason for a termination is fixed at the time of termination. Changing that reason in litigation will only help the employee prove his or her case by offering evidence of pretext. For this reason it is vitally important that companies have all their ducks in a row before terminating an employee. Conduct a full investigation before pulling the termination trigger. Have a bona fide reason and stick to it.

If the proffered reason is based on an honest business judgment, it is unlikely that a court will disturb it. If, however, the reason shifts over time, it is conceivable that a jury will find pretext and concluded that discrimination, and not one of your changing reasons, motivated the decision.

Ohio Supreme Court all but eliminates the intentional tort exception to workers’ comp claims

The history of the workplace intentional tort as an exception to the state workers’ compensation system has  a long and tortured history in the annals of Ohio jurisprudence. In Houdek v. ThyssenKrupp Materials N.A., Inc. (Ohio 12/6/12), the Ohio Supreme Court may have put the final nail in the coffin of this long misused claim.

Generally speaking, the state workers’ comp law providers immunity to employer from their employees’ workplace injuries. In Blankenship v. Cincinnati Milacron Chems., Inc. (1982), the Ohio Supreme Court recognized a cause of action for an employer’s intentional tort against its employee, holding that because intentional tort claims do not arise out of the employment relationship, the workers compensation laws do not provide immunity from suit.

Blankenship started at three-decade odyssey to define the meaning of “intention.” This odyssey included three different statutes, the first two of which the Court declared unconstitutional. The current statute (R.C. 2745.01), the constitutionality of which the Court in 2010 blessed twice, provides:

(A) In an action brought against an employer by an employee, or by the dependent survivors of a deceased employee, for damages resulting from an intentional tort committed by the employer during the course of employment, the employer shall not be liable unless the plaintiff proves that the employer committed the tortious act with the intent to injure another or with the belief that the injury was substantially certain to occur.

(B) As used in this section, “substantially certain” means that an employer acts with deliberate intent to cause an employee to suffer an injury, a disease, a condition, or death.

(C) Deliberate removal by an employer of an equipment safety guard or deliberate misrepresentation of a toxic or hazardous substance creates a rebuttable presumption that the removal or misrepresentation was committed with intent to injure another if an injury or an occupational disease or condition occurs as a direct result.

In Houdek, the plaintiff brought suit for an intentional tort under 2745.01 after being struck by a sideloader. He alleged that his employer deliberately intended to injure him by requiring him to work in a dimly lit aisle without a reflective vest and by failing to place orange safety cones or expandable gates to prevent machinery from entering aisles where employees were working.

The Court concluded that for an employee to prevail on an intentional tort claim, the employee must prove that that the employer deliberately intended to cause injury:

Absent a deliberate intent to injure another, an employer is not liable for a claim alleging an employer intentional tort, and the injured employee's exclusive remedy is within the workers' compensation system.

The Court made clear that the law differentiates between accidents and intentional injuries, and that 2745.01 provides a remedy only for the latter:

Here, Houdek’s injuries are the result of a tragic accident, and at most, the evidence shows that this accident may have been avoided had certain precautions been taken. However, because this evidence does not show that ThyssenKrupp deliberately intended to injure Houdek, pursuant to R.C. 2745.01, ThyssenKrupp is not liable for damages resulting from an intentional tort.

The lone dissenter, Justice Pfeifer, laments that the majority’s decision ends the workplace intentional tort claim under Ohio Law:

The court below … wrote what the consequences would be if my dire evaluation of the law was indeed correct: “As a cautionary note, if Justice Pfeifer is correct, Ohio employees who are sent in harm’s way and conduct themselves in accordance with the specific directives of their employers, if injured, may be discarded as if they were broken machinery to then become wards of the Workers’ Compensation Fund. Such a policy would spread the risk of such employer conduct to all of Ohio’s employers, those for whom worker safety is a paramount concern and those for whom it is not. So much for “personal responsibility” in the brave, new world of corporations are real persons.” More’s the pity.

Houdek is a huge victory for Ohio’s employers. “Deliberate intent” is a very high standard for injured employees to meet, and should protect employers  except in the most egregious of circumstances.

What cases will still prove problematic for employers under this statute? Because of presumption of deliberate intent created by 2745.01(C), those in which it is alleged that the employer deliberately removed an equipment safety guard or deliberately misrepresented a toxic or hazardous substance. How do you guard against these intentional tort cases?

• Train all of your employees about the importance of safety guards, and the dangers of toxic and hazardous substances.
• Inspect all equipment at the beginning and end of each shift to ensure that safety guards are in the proper place.

Some thoughts on Sandy Hook

There is nothing to say that can capture the grief and inhumanity we all witnessed last Friday. For what it’s worth, and because these events of unmistakable tragedy seem to be occurring at a more rapid clip, let me share some of my previous thoughts on how to cope when violence invades the workplace.

• In the wake of a tragedy, more on humanity and human resources
• Do you know what to do when violence invades your workplace?

In the wake of this tragedy, lots will be written about the need for tougher gun laws, better help for the mentally ill, and whether 24/7 news coverage of these tragic events helps encourage the next person to shoot for his 15 minutes of fame. The reality is that nothing can stop these events from happening. If an evil or sick person wants to get his or her hands on some guns and impose his evil or illness on a group of innocent people, there is nothing anyone to can do to stop it. All we can do is offer our prayers in its aftermath.

WIRTW #253 (the “words to live by” edition)

The Greenhouse Tavern is my favorite restaurant, anywhere. If you live in Cleveland and have not paid it a visit, do your palate a favor and get yourself to E. 4th Street to sample its amazing food (do not miss the confit-fried chicken wings). And, if you don’t live in Cleveland but find yourself visiting my fine town, put the Greenhouse at the top of your list of restaurants at which to dine.

It’s not just the amazing food that makes the Greenhouse so memorable. Its chef/owner, Jonathon Sawyer, is one of the most gracious small business owners in Cleveland. I had the pleasure of meeting Chef Sawyer several years ago at Hopkins Airport while both of our families were waiting to board a flight to Disney World. He and his wife treated my wife and me like royalty on our subsequent visit to his restaurant. As good as his food is (and it really is that good), it tastes that much better when the business is run by someone who pays such acute attention to his patrons.

For that reason, I paid special attention to a recent Washington Post Q&A column, entitled, On Small Business, which asked several small business owners, including Chef Sawyer, the following question: “Have you found any simple, inexpensive methods to make your workspace more employee-friendly? What tricks have you used to make sure your staff is happy with your office?” This was part of Chef Sawyer’s answer: “It starts from the top — employees must want to work with you, not for you. We’ve found the most success in this mutual respect….” You cannot go wrong following this advice in your own business and with your own employees.

[Hat tip: Steve Suttell]

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Have you voted yet for the ABA Journal Blawg 100. Polls close next Friday, Dec. 21.

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

Discrimination

• EEOC: Requiring Old Medical Documentation Violated ADA — from Joe’s HR and Benefits Blog
• Testimony for U.S. Civil Rights Commission Hearing on Background Checks — from Nick Fishman’s employeescreenIQ Blog
• Criminal Background Checks: Good in Theory, Problems in Practice — from LP Magazine
• EEOC Plans to Heavily Attack Pregnancy Discrimination in the Workplace — from Wisconsin Employment & Labor Law Blog
• Dear Evil Skippy: Is It Religious Discrimination To Have Christmas Trees At Work? — from Evil Skippy at Work
• Employers, don't let that "protected" employee hold you hostage — from Robin Shea’s Employment and Labor Insider
• When Dads do “Mom work,” how much accommodation is required? — from HR Cafe

Social Media & Workplace Technology

• Who Owns Your Company’s Social Media? Are You Sure? — from Dan Schwartz’s Connecticut Employment Law Blog
• Big Brother Can’t Ask For Access To Your “Personal” Social Media Accounts Either … More Social Media Legislation Proposed In California — from Trading Secrets
• Proposed Michigan Social Media Law Banning Employer Access to Employee Passwords - Not Something to “Like” — from Jason Shinn’s Michigan Employment Law Advisor
• Social Media Horror Stories: More to Come In 2013 — from Alabama Employment Law Report
• MATH: How Much Would Banning "Reply All" Save Your Company? — from The HR Capitalist, Kris Dunn

HR & Employee Relations

• Santa Fired For Telling A 3-Year-Old The Maple Leafs Suck — from Deadspin
• Keys For A Successful Holiday Party – Infographic — from Stephanie Thomas’s The Proactive Employer Blog
• Rudeness at Work: What's Your Story? — from Harvard Business Review
• The Trade Secret Litigator's 7 Deadly Sins of Former Employers in Trade Secret and Non-Compete Disputes — from Trade Secret Litigator Blog
• Confidentiality Clauses in Employment Agreements: Who’s Minding the Store? Part II — from The Emplawyerologist
• More Thoughts on Arbitrating Non-Competes — from Rob Radcliff’s Smooth Transitions
• Slack To The Future: The 50 Best Places To Work In 2013 — from Workplace Diva
• 10 terrible holiday gifts from bosses — from Evil HR Lady, Suzanne Lucas

Wage & Hour

• FMLA Leave for Same-Sex Couples to be Clarified by Supreme Court's DOMA Decision? — from Jeff Nowak’s FMLA Insights
• Fact or Fiction: Breaks/lunch taken at work may qualify for FMLA — from Eric Meyer’s The Employer Handbook Blog
• Employers Provide Too Little Leave Time — from Blogging4Jobs
• Tis the Season of Holiday Hiring — from DOL's Work in Progress
• What Deductions Are Allowed From an Exempt Employee’s Salary Under the FLSA? — from Minnesota Employer
• A Crash-Course in Paid Vacation and Holiday Policies — from CPEhr
• Man Fired After Complaining About Clocking In May Maintain Lawsuit For Retaliation — from Overtime Lawyer Blog

Labor Relations

• Great moments in labor arbitration — from Walter Olson’s Overlawyered
• Would You Buy THIS Union Made Product? — from Mike Haberman’s Omega HR Solutions
• Labor and the “Union” Name: Is a Rebrand Really the Answer? — from LaborPains.org

Holiday parties say a lot to about your workplace culture … for good and for bad

Last week I shared my thoughts on avoiding liability during your workplace holiday parties. Among the 7 tips I shared was:

Normal work rules and standards apply to holiday parties. As a subtle reminder, consider holding an anti-harassment refresher in anticipation of the party.

Shiner v. State Univ. of N.Y. (W.D.N.Y. 11/2/12) illustrates what can happen when a company ignores this advice and allows an office party to get out of hand.

Lesley Shiner worked as a clerk at the University at Buffalo Dental School. Dr. Jude Fabiano was the school’s Associate Dean and Steve Colombo its Director of Clinical Operations. Each year the school holds an annual Christmas party. Shiner attended the 2010 party despite her reservations about sexually inappropriate conduct and sexually explicit comments made by Colombo and Fabiano during the 2008 and 2009 parties.
As it turned out, Shiner should have listening to her inner voice and stayed home. In her lawsuit, she alleged that during the party Fabiano:

• Fondled her breasts.
• Inserted his tongue in her ear.
• Chased her around a table.
• Grabbed her by her neck and bent her over a table.
• Pushed her face together with that of another female employee and told them to kiss, stated that he wanted some “girl on girl” action, and asked for the three of them to be together sexually.
• Puller her on his lap and asked her to meet him somewhere after the party.
• Pinched and squeezed her ribs when she resisted his advances.

Colombo encouraged and cheered Fabiano’s behavior. At one point during the party, Colombo grabbed Shiner’s hand and pulled her onto his lap, stating to Fabiano “you might be the boss, but I have her now.”

All you need to know about the Shiner case is that, unsurprisingly, the court denied the school’s motion to dismiss.

This case, however, holds a deeper lesson about corporate culture and your workplace. If your company has a culture of condoning this type of behavior, no policy, and no amount of training, will render your holiday parties (or any workday, for that matter) safe. You need to decide what kind of company you want to be, and set the tone year-round. Then, when it comes time for the annual holiday party, you do not have to worry about an employee being bent over a table or asked for a threesome. And, if it happens, your employees will have confidence that your company will arrest the offending behavior quickly and severely.

12 is the magic number: 12 thoughts for your workplace

Today is 12/12/12. The number 12 holds a lot of historical significance. There are 12 tribes of Israel, 12 months in the Gregorian calendar, 12 signs of the zodiac, 12 days of Christmas, and 12 original studio albums released by the Beatles (in the UK).

Since today won’t come around for another 100 years, I thought I’d honor its unique date with 12 thoughts to help better your workplace.

1. Review your employee handbooks and other personnel policies (annually is preferred).

2. If you don’t have policies addressing social media and the other roles technology plays in your workplace, draft one(and train your employees on them).

3. Hold company-wide harassment training (least once every two years, if not every year).

4. Make it a point to rid your workplace of bullies (even though there is no law against it).

5. Even if your business is not a jurisdiction that bans sexual orientation discrimination, adopt a policy outlawing it anyway.

6. Audit your wage and hour practices.

7. Document all discipline and performance problems.

8. Do not make promises to your employees that you cannot keep.

9. Make hiring and firing decisions based on performance.

10. Be more understanding of your employees’ family responsibilities outside of the office.

11. Employ the golden rule — treat your employees as you would want to be treated.

12. Have fun (but not too much fun).

What are right-to-work laws, and should you care?

Michigan is poised to become the 24th state to enact a right-to-work law. These laws prohibit agreements between labor unions and employers that require employees to pay union dues as a condition of their employment, whether or not the employees are members of the union.

These laws are a creature of 1947’s Taft-Hartley Act. Before 1947, it was legal for unions and employers to agree, via their collective bargaining agreement, to maintain what is known as a “closed shop.” In a closed shop, unions and employers could require that employees join the union as a condition of employment. The Taft–Hartley Act outlawed closed shops, making it illegal for any employer to force an employee to join a union.

The Taft-Hartley Act, however, did not outlaw “agency shops,” in which employees do not have to join the union, but can be required to pay the union their share of union dues. Right-to-work laws were born out of an exception in the Taft-Hartley Act, under which individual states can pass laws outlawing agency shops.

Ohio is not a right-to-work state. Yet, this map (courtesy of National Right to Work Legal Defense Foundation), illustrates why every employer in every state should care about the right-to-work movement:

The map of right-to-work states bears a striking resemblance to the electoral maps in recent presidential elections. In other words, regardless of whether your state is, or is not, a right-to-work state, the state of these laws around the country says a lot about our current polarized (and polarizing) political system.

Moreover, with Republicans controlling Ohio’s governor’s office and both houses of Ohio’s legislature, do not be surprised when a strong push is made for this legislation in our own state. If so, it will make for a fierce battle between business interests—who argue these laws are necessary to attract companies—and unions—who argue that these laws are nothing more than a move to curb the power of labor and reduce its influence.