Best of 2012: Numbers 10 and 9

Today, I start my annual year-end countdown of the year’s top posts. In years past, I’ve done the 10 most important issues and the 10 most popular posts based on page views. This year, I ‘m simply using my 10 favorite posts from the past year. Enjoy my nostalgic walk down memory lane.

10. The 5 little words that will cause your company a huge headache

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

WIRTW #254 (the “until the end of the world” edition)

Today is December 21, 2012, which, according to the Mayans, is the day the world ends. Or, it’s the day that they simply stopping counting days on their calendar. Or, it’s entirely a coincidence.

Either way, one thing will end today for certain— my original posts for the year. As I’ve done in years past, on Monday I will start counting down my top 10 posts of the past year, two per day through December 31. I’ll be back on January 2, 2013, with fresh content. Please have a happy, healthy, and safe holiday.

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Today is the last day to vote for the ABA Journal Blawg 100. If you’ve voted, thank you. If you haven’t, what are you waiting for?

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

Discrimination

• Does the law require transfers for employees seeking medical treatment? — from Eric Meyer’s The Employer Handbook Blog
• The right way to handle a request for a religious accommodation — from Warren & Associates Blog
• Can Volunteers Sue For Discrimination? — from LE Blog
• Does Ho Ho Ho = Prostitutes? — from Evil Skippy at Work
• Can You Withhold Severance To An Employee Who Files An EEOC Charge? — from Employment Discrimination Report

Social Media & Workplace Technology

• Enforcing an Unwritten Social-Media Policy — from Molly DiBianca’s Delaware Employment Law Blog
• Internet Defamation Claims on the Rise as Online Reviews Impact the Bottom Line — from netWORKed Lawyers
• Fired for What!? - Defending Her Hair on Facebook — from Phil Miles’s Lawffice Space
• Twitter now has more than 200 million active monthly users — from The Verge
• The Sedona Conference® Publishes Primer on Social Media (Pubic Comment Version) — from Electronic Discovery Law
• Like or dislike? Social media profiles and employer access — from Technology for HR
• 5 pitfalls to avoid when responding to rogue employees — from Ragan.com

HR & Employee Relations

• My boss says I smell bad from Evil HR Lady, Suzanne Lucas
• Would You Enforce Workplace Policy If You Had to Follow Them? — from Blogging4Jobs
• An Employer’s Opinion on How To Quit Your Job — from Lifehacker
• How to Prevent/Deal With Employee Theft in the Workplace – Part 1 — from i-Sight Investigation Software Blog
• Medical Device Industry Remains a Hotbed for NonCompete Litigation — from Trade Secrets & Non-Compete Blog
• How Not to Unwittingly Reveal Company Secrets — from Harvard Business Review
• Confidentiality Clauses in Employment Agreements: Who’s Minding the Store, Conclusion — from The Emplawyerologist
• Holidays in the workplace: Listen to Bad Santa, and do precisely the opposite — from Robin Shea’s Employment and Labor Insider
• Letter to the Editor, Cleveland Plain Dealer on Background Checks Story — from employeescreenIQ Blog

Wage & Hour

• A Recent Off-The-Clock Case Should Not Breed Complacency — from Wage and Hour Laws Blog
• Independent contractor or employee? — from EmployerLINC

Labor Relations

• Libertarians and right to work laws — from Walter Olson’s Overlawyered
• Right-to-Work or Wrong-to-Work? Why the Michigan Vote Makes Sense — from Tim Sackett at TLNT
• Hell Freezes Over: Michigan is Right-to-Work — from Labor Relations Institute

Happy Holidays.

The NLRB’s holiday gift: a Facebook firing decision

Earlier today, I suggested that the appropriate gift on the 5th day of Employment Law Christmas is 5 Facebook firings. Today, the NLRB made good on this suggestion by publishing its decision in Hispanics United of Buffalo [pdf].

Hispanics United concerned the terminations of five employees on the heels of a Facebook discussion critical of another employee’s job performance. Last year, the Administrative Law Judge ruled that the terminations violated the non-union employees’ rights to engage in the protected concerted activity.

The NLRB affirmed the earlier decision.

There should be no question that the activity engaged in by the five employees was concerted for the “purpose of mutual aid or protection” as required by Section 7. As set forth in her initial Facebook post, Cole-Rivera alerted fellow employees of another employee’s complaint that they “don’t help our clients enough,” stated that she “about had it” with the complaints, and solicited her coworkers’ views about this criticism. By responding to this solicitation with comments of protest, Cole-Rivera’s four coworkers made common cause with her, and, together, their actions were concerted …, because they were undertaken “with … other employees.” … The actions of the five employees were also concerted … because, as the judge found, they “were taking a first step towards taking group action to defend themselves against the accusations they could reasonably believe Cruz-Moore was going to make to management.” …

The Facebook comments here fall well within the Act’s protection. The Board has long held that Section 7 protects employee discussions about their job performance, and the Facebook comments plainly centered on that subject. As discussed, the employees were directly responding to allegations they were providing substandard service to the Respondent’s clients. Given the negative impact such criticisms could have on their employment, the five employees were clearly engaged in protected activity in mutual aid of each other’s defense to those criticisms.

This case clarifies a two key points for employers.

     1. Employees can engage in protected concerted activity even if their online conversations take place off-duty and via their own computers.

     2. The employer argued that the employees’ Facebook posts lost any protections because they were a form or harassment or bullying in violation of company policy. The Board did not buy that argument, concluding that the National Labor Relations Act trumps any workplace bullying or harassment policy. It did, however, leave open the possibility that objectively and subjectively illegal harassment (that which is on the basis of “race, color, sex, religion, national origin, age, disability, veteran status, or other prohibited basis”) would strip the employees’ comments of their protected status.

The 12 Days of Employment Law Christmas

Since the holidays are almost upon us, and the news is a little slow, I thought I’d have a little fun. So I wrote a song. For your listening pleasure (you have to sing yourself; trust me, there’s no pleasure if I do it for you), I present The 12 Days of Employment Law Christmas.

(Some musical accompaniment)

On the first day of Christmas,
my employment lawyer gave to me
a lawsuit for my company.

On the second day of Christmas,
my employment lawyer gave to me
2 trade secrets
and a lawsuit for my company.

On the third day of Christmas,
my employment lawyer gave to me
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

On the fourth day of Christmas,
my employment lawyer gave to me
4 collective actions,
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

On the fifth day of Christmas,
my employment lawyer gave to me
5 Facebook firings,
4 collective actions,
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

On the sixth day of Christmas,
my employment lawyer gave to me
6 guys-a-lying,
5 Facebook firings,
4 collective actions,
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

On the seventh day of Christmas,
my employment lawyer gave to me
7 sex harassers,
6 guys-a-lying,
5 Facebook firings,
4 collective actions,
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

On the eighth day of Christmas,
my employment lawyer gave to me 
8 discriminating managers,
7 sex harassers,
6 guys-a-lying,
5 Facebook firings,
4 collective actions,
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

On the ninth day of Christmas,
my employment lawyer gave to me
9 ladies lactating,
8 discriminating managers,
7 sex harassers,
6 guys-a-lying,
5 Facebook firings,
4 collective actions,
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

On the tenth day of Christmas,
my employment lawyer gave to me
10 labor campaigns,
9 ladies lactating,
8 discriminating managers,
7 sex harassers,
6 guys-a-lying,
5 Facebook firings,
4 collective actions,
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

On the eleventh day of Christmas,
my employment lawyer gave to me
11 personnel manuals,
10 labor campaigns,
9 ladies lactating,
8 discriminating managers,
7 sex harassers,
6 guys-a-lying,
5 Facebook firings,
4 collective actions,
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

On the twelfth day of Christmas,
my employment lawyer gave to me
12 disabled workers,
11 personnel manuals,
10 labor campaigns,
9 ladies lactating,
8 discriminating managers,
7 sex harassers,
6 guys-a-lying,
5 Facebook firings,
4 collective actions,
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

Happy holidays!

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.