Can we please fix Ohio’s age discrimination law?

It’s no secret that Ohio’s age discrimination statute is a hot mess. The statute has four different ways a plaintiff can file an age claim against an employer, each with a different statute of limitations and available remedies. What’s more, the statute requires that the plaintiff elect which one of the four specific statutory provisions the claim is asserted. Filing under one provision precludes a plaintiff from asserting a claim under any of the other three. This election can have a significant impact on the litigation, because it will dictate the remedies a plaintiff can seek.

If this scheme not complicated enough, federal law also requires that a plaintiff file an age discrimination charge with the EEOC as a prerequisite to filing a lawsuit alleging a violation of the ADEA. Because Ohio is a deferral state, any charges filed with the EEOC are automatically deemed dual-filed with the OCRC.

Not all Ohio state-law age discrimination claims, however, require exhaustion with the civil rights agency. In fact, R.C. 4112.99, which provides the most expansive remedies, has no exhaustion requirement at all. What happens, however, if a plaintiff files an age discrimination charge with the EEOC? Does that mean that the dual filing with the OCRC asks an election by the plaintiff to pursue an administrative claim (with limited remedies) instead of a civil lawsuit with more expansive remedies?

In Flint v. Mercy Health Partners of Southwest Ohio (S.D. Ohio 4/16/13), the district court concluded that filing first with the EEOC does not serve as an election of administrative remedies under Ohio’s age discrimination statutes:

This Court concludes that the Ohio Supreme Court would likely rule that filing a charge of age discrimination with the EEOC does not comprise an election of remedies…. Therefore, the Court holds that Plaintiffs’ pro se filing of an EEOC charge was not an election of remedies under the Ohio statute. This result acknowledges the complementary nature of federal and state employment discrimination procedures and disarms the “minefield” Ohio’s statutory scheme creates for the litigant wanting to pursue a remedy for age discrimination — something this Court finds particularly important when an employee is attempting to navigate that minefield without the assistance of legal counsel.

Ohio is contemplating expansive changes to its employment discrimination laws. The legislature should take the opportunity to disarm this "minefield" by creating one unified statute of limitations for all discrimination claims (I suggest one year to bring Ohio more in line with its federal counterpart), and eliminate the goofy and confusing election requirement that results from having four different types of age discrimination claims.

The legal and ethical issues of the class action “pick off”

Have you heard that the new owner of the Cleveland Browns has gotten himself into a bit of legal trouble? It’s alleged that Jimmy Haslem’s other business, Pilot Flying J, defrauded trucking companies of fuel rebates. In an effort to head-off a stream of civil lawsuits, Mr. Haslam has been meeting with customers to settle the alleged missing rebates. One such customer sought a temporary restraining order to stop such meetings because, according to the Wall Street Journal, Pilot was “obtaining releases, and settling claims before the potential class members even know the full extent of their claims.” Yesterday, the court denied the restraining order, permitting Haslem’s company to continue attempting to settle these claims.

Recall that just two weeks ago, the Supreme Court decided a case involving the pick-off named plaintiffs in wage and hour collective actions. In the Genesis Healthcare case, however, the employer communicated the offer to the plaintiff through her attorney. What happens, however, if the employer communicates directly with un-represented and un-named members of a yet-to-be-certified class? Is there anything prohibiting an employer from contacting them directly in an effort to obtain settlements of their potential claims? It depends.

There is nothing inherently unethical in defense counsel contacting putative class members at the pre-certification stage. According to ABA Comm. on Ethics and Prof’l Responsibility, Formal Op. 07-445 (2007) [pdf], communications between defense counsel and putative class members does not violate the Models Rules of Professional Responsibility because there is no attorney-client relationship between plaintiffs’ counsel and members of an un-certified, putative class.

Yet, a court still might limit such communications if they are designed to confuse or coerce.

In Gulf Oil v. Bernard (1981), the U.S. Supreme Court rejected the argument that defense counsel are per se prohibited from contacting putative class members before a class is certified. Instead, a court can only limit pre-certification communications to address communications that misrepresent the status or effect of the case or that have an obvious potential for confusion, and must be based on “a specific record showing by the moving party of the particular abuses by which it is threatened.”

In accordance with the Supreme Court’s Bernard decision, federal district courts have routinely refused to exercise their supervisory authority over communications with putative class members in situations where the complaining party cannot demonstrate actual abuses. Such abuses that would justify a gag order include communications that coerce putative members into excluding themselves from the class, undermine cooperation with or confidence in plaintiffs’ counsel, or suggest retaliation for participating in or assisting the class.

For example, in Parks v. Eastwood Ins. Servs. (C.D. Cal. 2002), the named plaintiffs brought a collective action against their employer for unpaid overtime under the Fair Labor Standard Act. Prior to sending a court-approved notice to putative class members, the employer sent a memorandum to its employees asking them to contact the company’s general counsel if they had any questions regarding the case. The court concluded that a curative communication was unnecessary because the at-issue memorandum was not coercive and did not suggest that any employee would be retaliated against for joining the class.

There are significant strategic decision that companies and their attorneys must make when defending class action lawsuits. Pre-certification communications with potential class members carries a big upside, albeit with the potential of significant risk.

With social media, all of your employees are brand ambassadors; train them accordingly

A Hockessin, Delaware, restaurant has gotten itself into a bit of hot water after it was discovered that its employees posted offensive photographs to the restaurant’s Facebook and Instagram pages. The photos were of receipts of bad-tipping customers, and included offensive and racist comments, including “'#deuchbag”, “#cheapass”, “#hillbillies”, “#cheap #jerk #indian”, and “#cheap #jew”.

While the accounts have been disabled, Daily Mail posted some of the screen-caps.

Whether you like it or not, social media has turned each of your employees into a brand ambassador. Can you afford to have your brand sullied by the offensive or racists rants of one of your employees? More importantly, how do you undo the damage caused? While an offending employee should be fired for the transgression, the firing won’t remove the stain left on your business. In this case, the owner posted a public apology to his customers, but that apology will not undo all of the viral damage done by a rogue employee. Additionally, the power to delete the post cannot stop others from publicizing the screencap of death. For example, this restaurant deleted the posts, but they live on in the Daily Mail story and in this post.

What is the answer?

1. Training, training, training. Employees need to understand that they will be held accountable with their jobs if they write something online that damages the reputation of your brand. Do not entrust this issue solely to your employees’ common sense. They will disappoint you.

2. Monitor your brand online. You do not want to find out about something like this for the first time with a reporter asking you for a comments. There are myriad tools available online to monitor your brand’s social presence. They are well worth the investment, especially when compared to the potential harm one disgruntled or renegade employee can cause. Google alerts are free, and are a great starting point. They will not, however, catch much of the social chatter. Two popular paid solutions (which I am not endorsing, but merely informing) are Radian6 and Wildfire.

3. Secure your IT and social media accounts. According to the owner of this restaurant, the accounts were hacked because he “left [his] iPad and stuff all around.” You need to secure your technology to ensure that employees cannot appropriate social media channel to which they should not have access.

If you want to see an example of one large scale organization trains its employees on the appropriate and responsible use of social media, specifically to address the risk of viral damage from negative or irresponsible posts, take a look at the training video Zurich Insurance has made available on YouTube:

YouTube also has available similar examples from Citrix, Sodexo, and KPMG. As with any policy or training your are considering implementing, check first with your own legal counsel.

WIRTW #271 (the “too hot to work” edition)

Do you remember the dental hygienist whom the Iowa Supreme Court declared too hot to work? Earlier this week, she attempted to “redeem” herself by appearing on a recent episode of Comedy Central’s Tosh.0 [h/t Above the Law] (NSFW):

Tosh.0

I’m happy to see that Ms. Nelson doesn’t perceive herself as a piece of meat to be inappropriately ogled by men. After Ms. Nelson lost her sex discrimination case I had sympathy for her because I thought the Iowa court made bad law. I still believe Nelson’s case is bad law; my sympathy for her, however, has gone down the drain.

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

Discrimination

• Senator Murphy: Prospects “Not Too Good” for Federal Bill Prohibiting Sexual Orientation Discrimination — from Dan Schwartz’s Connecticut Employment Law Blog
• Senate must act on gay workplace rights — from The Washington Post
• Hooter’s Waitress Alleges That Brain Surgery Resulted In Her Losing To Losing Her Job — from Workplace Prof Blog
• What Does GINA Have to Do With Employment Practices? — from The Emplawyerologist
• EEOC Checkup: Where Things Stand — from employeescreenIQ Blog
• What The Interactive Process Requires — from California Employment Law
• A Workplace Harassment Case for the Record Books — from i-Sight Investigation Software Blog
• Teach Employees about Sexual Harassment — from Mike Haberman’s Omega HR Solutions

Social Media & Workplace Technology

• Monitoring employees’ use of company trademarks in social media — from Technology for HR
• If worker social media accounts are private, how can financial firms check for trading issues? — from ABA Journal Daily News
• Breaking Bad? NM is the 6th state to pass social media workplace law — from Eric Meyer’s The Employer Handbook Blog
• Federal Court Allows Service On Foreign Defendants Through Facebook — from Trading Secrets
• The top 5 trends in mobile and BYOD security — from Consumerization Blog

HR & Employee Relations

• California Court Tosses Idea Theft Suit Over LOST Television Show Out to Sea — from Trading Secrets
• From bullying, to mobbing, to ouster: The story of Ann Curry — from Minding the Workplace
• Being Proactive May Reduce Risk for Corporate Raiding and Loss of Sensitive Company Information — from netWORKed Lawyers
• Workplace Violence: Some things an employer can do — from Robin Shea’s Employment & Labor Insider
• Lessons from Boston: Employers confront terrorism — from Michigan Employment Law Connection
• How Elevators Reveal Office Pecking Order — from Fast Company

Wage & Hour

• Department of Labor to Increase Frequency of FMLA On-Site Investigations — from Jeff Nowak’s FMLA Insights
• Can Employers Limit FMLA Leave for Married Co-Workers? — from Hiring & Firing
• Employing teens – is it ok not to pay them for “training time”? — from Warren & Associates Blog
• Are Unpaid Interns Handy Helpers or a Source of Liability? — from Labor & Employment Law Perspectives
• Do FLSA Settlements Require Court Approval? — from Phil Miles’s Lawffice Space
• Payment of Wages While on Lock-Down — from CPEhr

Beware bans on pay discussions among employees

Pop quiz. What’s wrong with the following paragraph, which appeared in the April 17, 2013, Wall Street Journal article entitled, Workers Share Their Salary Secrets?

At Brian Bader’s orientation for a tech-support job with Apple three years ago, he says, human-resources managers ran down the list of guidelines workers were expected to follow. Don’t use explicit language on calls with customers. Treat other employees with respect. And, he says, they told the assembled recruits, don’t discuss your pay with co-workers.

If you answered, “An employer can’t legally prohibit employees from discussing how much they make,” give yourself a prize.

As the 6th Circuit explained in NLRB v. Main Street Terrace Care Center:

A rule prohibiting employees from communicating with one another regarding wages, a key objective of organizational activity, undoubtedly tends to interfere with the employees’ right to engage in protected concerted activity…. [T]he fact that the rule was promulgated orally rather than written in an employee handbook, for example, makes no difference….

Does your handbook have a policy that prohibits employees from discussing how much you pay them? If so, get rid of it.

Do your managers and supervisor know that they cannot terminate or discipline employees for discussing how much they make? If not, train them on these rules.

NLRB confirms legality of most at-will disclaimers (and employers everywhere rejoice)

The NLRB has confused me with its apparent reasonableness. Last week, the NLRB published an advice memorandum from its Office of General Counsel, in which it opined that the at-will disclaimer in an employer’s handbook did not violate employees’ Section 7 rights to engage in protected, concerted activity.

Recall that last year, the NLRB launched a preliminary offensive against handbook at-will disclaimers.

In its most recent proclamation [pdf], the Board considered the following at-will language:

Employment with the Company is at-will which means the employment relationship may be terminated with or without cause and with or without notice at any time by you or the Company. In addition, the Company may alter an employee’s position, duties, title or compensation at any time, with or without notice and with or without cause. Nothing in this Handbook or in any document or statement and nothing implied from any course of conduct shall limit the Company’s or employee’s right to terminate employment at-will. Only the Company President is authorized to modify the Company’s at-will employment policy or enter into any agreement contrary to this policy. Any such modification must be in writing and signed by the employee and the President.

The NLRB’s Office of GC concluded that the italicized language is lawful because it cannot reasonably be interpreted to restrict employees’ Section 7 rights to engage in concerted attempts to change the employment at-will status. The Office of GC contrasted this language with other language that an NLRB Administrative Law Judge has previously found unlawful: “I further agree that the at-will employment relationship cannot be amended, modified or altered in any way.” The difference, according to this memo, is the ability to modify the at-will nature of the employment in the future.

The take-aways?

1. The NLRB will examine at-will disclaimers on a case-by-case basis, and I do not expect we will see the Board take the unreasonable position that all at-will disclaimers are unlawful.
2. You should take a look at your current at-will language to make sure it does not foreclose the possibility of future modifications of employees’ at-will status.

I’ll leave you with one final thought. In a footnote, the Office of GC made the following comment: “The Board repeatedly has said that potentially violative phrases must be read in context and that it will not find a violation simply because a rule could conceivably be read to restrict Section 7 activity.” If that statement is true, how can the NLRB continue to justify its over-the-top policy statements on social media policies? If the NLRB can carry its reasonable position on at-will disclaimers over to social media policies, I think we might just become friends.

Staged RIFs qualify for heightened protection from age discrimination

Employers who eliminate headcount as part of a reduction in force receive special protection under the age discrimination laws. In a bona fide RIF, the employer has a built-in legitimate, non-discriminatory reason for a termination—the business considerations and economic necessities that caused the job eliminations. In such a case, an employee cannot establish a prima facie case of age discrimination without some additional direct, circumstantial, or statistical evidence showing that age was a factor in the termination. The mere termination of a competent employee in the face of economically based cutbacks is not enough to establish a prima facie case of age discrimination.

What happens, though, when an employer cuts headcount in stages? For example, what if an employer facing economic distress lays off a number of employees, and a year later lays off someone else? Can the employer claim the benefit of the more stringent age discrimination test that accompanies a bona fide RIF for the later termination?

Such was the case in Weisfeld v. PASCO, Inc. (Ohio Ct. App. 4/17/13) [pdf]. In 2009, PASCO lost a contract that accounted for 80 – 90 percent of its revenue. As a result, it laid off more than 80 percent of its employees. Most of those firings happened shortly after the lost contract. The company waited a year, though, to fire six key employees, including Todd Weisfeld, its 48-year-old director of technology, who declined a restructured job as a network coordinator.

In his ensuing age discrimination lawsuit, Mr. Weisfeld argued that the passage of time between when PASCO terminated him as compared to the bulk of his co-workers precluded the company from claiming that Weisfeld’s termination was part of a reduction in force. The court, however, disagreed:

Contrary to Mr. Weisfeld’s understanding, an employee is terminated pursuant to a reduction in force whenever “business considerations” are the driving force behind the company’s decision. It is immaterial that PASCO eliminated some positions immediately after losing the California contract and waited over a year to eliminate other positions. So long as the company’s decision was because of business considerations and it did not replace Mr. Weisfeld with another employee, his discharge was pursuant to a reduction in force.

Absent any evidence that PASCO lacked a legitimate business reason for eliminating its director of technology position, Mr. Weisfeld’s age discrimination claim failed.

This case shows the powerful advantage that employers hold in defending discrimination cases that arise out of reductions in force. It also shows that RIFs can occur in stages and over time. At least according to Weisfeld v. PASCO, an employer can retain key employees during a layoff and still claim the evidentiary benefit of the RIF when economic realities dictate a later termination of those key employees.