The more things change the more they stay the same

According to today's Columbus Dispatch, the Ohio Civil Rights Commission is considering adopting new regulations under which pregnant employees would be entitled to 12 weeks of unpaid maternity leave immediately upon their date of hire. These new rules would apply to any employer with 4 or more employees, as opposed to the federal FMLA's 50-employee limit. Finally, these new state rules would require employers to offer a pregnant employee a light-duty assignment where practical and to reinstate a worker to her former position or an equivalent post when she returns to work. Before any changes can take effect, they must be approved by the Joint Committee on Agency Rule Review, a legislative panel. If the panel approves the changes, they could take effect in September. A copy of the proposed regulations, which amends OAC 4112-5-05(G), are available from the OCRC here, and redlined here.

It is unclear why the OCRC feels these new rules are necessary. It is true that the FMLA only applies to companies with 50 or more employees and to employees with at least one year of employment who have worked a minimum 1,250 hours in the previous 12 months. As this May 22, 2007, post makes clear, Ohio law already requires at least 12 weeks of maternity leave for all pregnant employees. Further, the federal Pregnancy Discrimination Act and its Ohio counterpart already require that employers treat pregnant employees the same as other employees with similarly disabling medical conditions. In other words, if a pregnant employee requests light duty to accommodate pregnancy symptoms, the company must treat that employee's request the same as it would any other similarly disabled employee's request. Similarly, an employer that terminates a pregnant employee during maternity leave does so at its own peril regardless of whether she is FMLA-eligible or not. Such disparate treatment is pregnancy discrimination under current laws.

These proposed new rules do nothing more than codify the status quo. They seem to simply jump on the "family responsibility discrimination" bandwagon. If any good is to come from of these new rules it is that employers will be further educated about maternity leave rights of Ohio employees, which will still remain a minefield for the unwary HR professional. These new rules, however, are not groundbreaking, and should not cause any change in the law or how companies administer maternity leaves.

Family Responsibility Discrimination gains more coverage

Family responsibility discrimination continues to gain traction. It was front and center in a featured piece in yesterday's New York Times Magazine available here, (free online registration required). Aside from providing a nice summary of the legal landscape in this evolving amalgam of discrimination, the article makes five interesting point:

• The U.S. lags behind the rest of the developed world, most of which has much more flexible family leave laws.
• More than 50% of family responsibility discrimination claims are successful, which is significantly higher than the less than 20% success rate for other types of discrimination.
• These lawsuits result in six and seven figure verdicts.
• Even conservative courts are embracing these claims, under the umbrella of "family values."

These points are intertwined, and warrant serious attention from companies. Almost all judges and jurors can relate to caregiving. Even former Chief Justice Rehquist, not known for his liberal viewpoints, in Nevada Dep't of Human Resources v. Hibbs, wrote, "The fault line between work and family [is] precisely where sex-based overgeneralizations has been and remains strongest." The New York Times article makes the point that until either Congress amends the FMLA to extend family leave, other laws are passed, the aggrieved will continue to push reform via discrimination lawsuits, a potentially costly prospect for companies.

Why I love being an employment lawyer

This article, courtesy of the Wall Street Journal's Law Blog, needs no further explanation: The Best Dentist Related Lawsuit Ever. You'd think after 10 years of this I would stop being surprised or entertained at what goes on in places of employment. The biggest surprise is that the dentist was sued for outrage, battery, invasion of privacy, false light, public disclosure of private acts, medical negligence, lack of informed consent, affliction of emotional distress, and retaliation, but not sexual harassment.

And for the Seinfeld fans:

Elaine: Maybe you were still under the gas.Maybe you were hallucinating you're coming out of the gas but you were still under the gas.

Jerry: I don't think so. I think they were getting dressed and not only that - my shirt was out!!!

Elaine: Your shirt was out?

Jerry: I think so.

Elaine: Well, what kind of shirt was it?

Jerry: You know! Like a tennis shirt.

Elaine: Oh! Well - You don't tuck those in?

Jerry: Sometimes I tuck 'em sometimes I don't

Elaine: Well. Were you tucked?

Jerry: I think I was tucked!

Elaine: All right then say you were. I mean - what do you think could have happened?

Jerry: I don't know but I was spitting out and rinsing like there was no tomorrow.

Elaine: Ughhhh!

Jerry: Is this guy a dentist or Caligula?

The Jimmy, Seinfeld Episode 105 (original air date March 16, 1995).

Foreign accents as direct evidence of national origin discrimination

According to the EEOC:

An employment decision based on foreign accent does not violate Title VII if an individual's accent materially interferes with the ability to perform job duties. This assessment depends upon the specific duties of the position in question and the extent to which the individual's accent affects his or her ability to perform job duties. Employers should distinguish between a merely discernible foreign accent and one that interferes with communication skills necessary to perform job duties. Generally, an employer may only base an employment decision on accent if effective oral communication in English is required to perform job duties and the individual's foreign accent materially interferes with his or her ability to communicate orally in English. Positions for which effective oral communication in English may be required include teaching, customer service, and telemarketing. Even for these positions, an employer must still determine whether the particular individual's accent interferes with the ability to perform job duties.

In re Rodriguez demonstrates these principles. Jose Rodriguez applied and was rejected for two vacant supervisory positions at FedEx, despite the hiring manager believing him to be qualified for the positions. The Human Resource Manager, Adkinson, however, expressed concern that Rodriguez was difficult to understand and that his Hispanic accept and speech pattern would adversely affect his ability to rise through the company's ranks. Witnesses also attributed to Adkinson disparaging comments about Rodriguez's "language" and "how he speaks." After trying to be promoted for nearly a year, Rodriguez ultimately gave up, resigned, and sued FedEx for national origin discrimination. The Sixth Circuit held that Adkinson's comments concerning Rodriguez's accent was direct evidence of national origin discrimination, and sent the case back to the district court to determine FedEx would have refused to promote Rodriguez even without a discriminatory motive. In reaching that conclusion, the Court reinforced that "accent and national origin are inextricably intertwined," and that the EEOC "recognizes linguistic discrimination as national origin discrimination." It is probably little solace for FedEx that the court of appeals affirmed the dismissal of the hostile environment, constructive discharge, and retaliation claims. Now it will have to prove to a jury the legitimacy of its termination in the face of the HR Manager's comments.

Jury verdict underscores rights of veterans

A federal jury in Portland, Oregon, returned a $985,000 verdict in favor of a National Guardsman terminated by Target after his return from military duty. The jury found that the employee was fired when he tried to come back to his old job and that it retaliated against him for asking for reinstatement. The evidence at trial was that Target management told the employee that his enlistment following 9/11 "would not be beneficial to his future career," that he was demoted following his return from active duty, and when the National Guard intervened on his behalf to have his previous position restored, Target terminated him. The jury awarded $85,000 in economic damages and $900,000 in punitive damages for the retaliatory termination. It found the demotion, however, lawful.

This verdict highlights the rights held by employees who take military leaves of absence. Military leaves are covered by the federal Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA). USERRA provides reemployment protection and other benefits for veterans and employees who perform military service. The law applies to all members of the United States military, reserves, and national guard. Under the statute, military service is not only defined as actual active duty, but also inactive duty training. In sum, USERRA requires that all employers must grant military leave for all full-time and part-time employees for up to a period of 5 years, provided the employee provided appropriate documentation for the leave. Employers have no obligation to pay employees during a military leave, and employees have the option to use, but cannot be required to use, accrued paid time off (such as vacation days) during the leave. If a military absence was 90 days or shorter, the employer must restore the employee to his or her former position. If a military absence was 91 days or longer, the employer must restore the employee either to his or her former position if it is still available, or if it is not available, to a job that is equal to the former position in status and pay. Upon an employee’s return from a military leave of absence, the employee must be compensated at the rate of pay he or she would have received had he or she continued working during the period of leave. The employee must also be restored to full participation in benefit plans.

It is a good idea to have a military leave policy so that all supervisors and managers understand the rights and responsibilities under this law.

Federal minimum wage increases today

Today is July 24, which means that the federal minimum wage increases from $5.15 to $5.85 an hour. The Department of Labor is even nice enough to print a new wage and hour poster to hang in your business.

For Ohio businesses, this increase does not mean much, because last November's ballot initiative already raised this State's minimum wage to $6.85. Regardless every Ohio employer subject to the FLSA's minimum wage provisions must post, and keep posted, in a conspicuous place in all of their establishments the federal wage and hour poster. The federal minimum wage may again have meaning to Ohio employers when it increases to $7.25 two years from today.

Small claims court needs reform

Did you know that a company cannot represent itself in an Ohio small claims court? An employee is free to go to small claims court and file any claim $3,000 or under against an employer, and the employer must hire an attorney to represent it at court. Even though a corporation is defined as a "person" under the law, and an individual can appear pro se, a company that tries to exercise the same right will be barred under the guise of the unauthorized practice of law. This rule needs to be fixed. Because the cost of defense often outweighs the cost of the claim, how is justice served if companies have little incentive to litigate? Often, however, companies want to challenge the claim, because at stake is the sanctity of a policy that the employer has spent time and money having drafted, implementing, and enforcing. Also, companies need to send the message that they will not roll over even for small claims brought by employees. So, what you are left with is a company that may not want to pay to fight the claim, and if they do pay to fight it, a pro se plaintiff that will be outmatched in court by having to face cross examination by a hired professional. This system is crying out for reform. Ohio law should be amended so that a company can appear in small claims court through a corporate officer and without an attorney. This amendment will allow the system to work as it is intended, so that small claims can actually be tried with small costs and small hassle.