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WIRTW #97

Thanks to the magical ability to schedule posts in advance, I am with my family in Disney World while you’re reading today’s WIRTW. Next week, I will be running a series of what I think are some of my best posts from earlier this year. Today, take a look at what I think are some of the best posts from my fellow employment law and HR bloggers from earlier this week.

The Word on Employment Law with John Phillips thinks a 38-year employee deserve more than a 10-minute termination discussion.

Mark Toth’s Manpower Employment Blawg reports on possible changes to federal labor laws under Obama’s NLRB.

Mindy Chapman’s Case in Point draws a lesson on the ADA from a case involving talk show host Montel Williams.

Molly DiBianca at the Delaware Employment Law Blog has yet another story of someone who got herself in trouble for something posted on a social networking site.

Nick Fishman at the employeescreenIQ Blog discusses Equifax’s decision to stop selling credit reports for employment purposes.

Paul Secunda at the Workplace Prof Blog thinks employers that test employees for legally prescribed drugs are “clueless.”

Carl Boland’s FMLA Blog, on whether telling the office staff about a co-worker’s miscarriage violates the FMLA.

Michael Maslanka’s Work Matters, on the art of the apology.

Patrick Smith’s Iowa Employment Law Blog discusses how to avoid discrimination liability.

Workplace Investigations asks, “What is religion?”

I’ll be back with fresh content on October 5. In the meantime, enjoy next week’s replay.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Discrimination in the air

Consider the following comments relating to the promotion of female officers within a police department:

• The chief will never have a female on the command staff.
• None of you females will ever go anywhere, and other negative statements about women in the department.
• Women do not belong in the police force.
• Accusing a female employee of “bitching” when lodging complaints.

On first blush, these comments would appear to support a claim of sex discrimination. But, consider that these comments were all made by non-decision makers, and that the Chief, who was not alleged to have taken part in any of these comments, had the sole discretion to hire, fire, and promote. If only the Chief could make personnel decisions, then only his comments should be relevant to a discrimination claim. In Risch v. Royal Oak Police Dep’t (6th Cir. 9/23/09) [PDF], the 6th Circuit disagrees with me in sending the case back to the district court for a trial on the employee’s sex discrimination claim.

In finding that there was a triable jury issue, the majority relied on the “discriminatory atmosphere” in the department:

The statements in this case evidence a discriminatory atmosphere in the Department in which male officers frequently made derogatory or discriminatory remarks about female officers. Two of the comments were made by sergeants who were members of the sixteen-person command staff, which serves as the managerial arm of the Department. Discriminatory statements made by individuals occupying managerial positions can be particularly probative of a discriminatory workplace culture….

For my money, the dissent has the better side of the argument as to whether an “atmosphere” can support a discrimination claim:

To be sure, sexist comments by other officers may have greater relevance if Risch were alleging sexual harassment, but she is not; rather, she alleges an unlawful discrete act – denial of a promotion based upon sex. To impute allegedly discriminatory comments and conduct by non-decision making employees within the Department to Chief Quisenberry and conclude that discriminatory animus may have infected his denial of Risch’s request for a promotion requires an inference upon inference – untethered to any proper evidentiary foundation.

Do comments such as those made in the Risch case belong in the workplace? Clearly, the answer is no. However, discrimination cannot exist in the air. It has to have a connection to the actual challenged decision. Without this nexus, we are opening our courts to a broad range of cases that will be decided on emotion and prejudice, not on facts bearing on the employment decision itself.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Is the sky falling? The reality of wage and hour lawsuits

There is no doubt that wage and hour litigation is “the” hot topic in employment law. Dan Schwartz at the Connecticut Employment Law Blog has taken an empirical look at the number of wage and hour lawsuits filed and thinks that all of the hoopla might be a tad overblown. The numbers, however, only tell part of the story.

Federal courts classify their civil filings by type of case. Wage and hour lawsuits fall under the umbrella of “Labor” filings. The following breaks down “Labor” filings for the past five years, both in all federal courts and in Ohio’s two federal districts (courtesy of the Federal Court Management Statistics):

All Federal Districts

	Labor Cases	Total Filings	%
2008	16,788	349,969	4.80%
2007	18,674	335,655	5.56%
2006	16,659	335,868	4.96%
2005	18,322	330,721	5.54%
2004	18,330	358,983	5.11%

Ohio’s Federal Courts

	Labor Cases	Total Filings	%
2008	566	8,225	6.88%
2007	583	8,910	6.54%
2006	614	8,285	7.41%
2005	946	12,077	7.83%
2004	765	13,908	5.50%

As you can see, the total number of cases and percentage of overall cases was was down nationwide in 2008, but steady in Ohio. Moreover, Ohio’s federal courts have a higher percentage of wage and hour cases than the national average.

The danger posed by wage and hour lawsuits, however, isn’t in the number of cases filed. The danger is that most wage and hour cases are filed as class or collective actions, which prove to be very costly and carry with them enormous exposure for employers. You are naive if you don’t think that every plaintiffs attorney asks about wage and hour practices as part of their client intake. Additionally, the Department of Labor just announced the hiring of 250 new wage and hour investigators. Every employer is a target because no employer does wage and hour perfectly. And, even the tiniest slip can lead to a multi-million dollar claim. Do you need a better reason to get a handle on your wage and hour practices sooner rather than later?

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Update on ADA Amendments Act: EEOC Proposed Regulations are Now Available

Earlier today I wrote on the EEOC’s proposed regulation implementing the ADA Amendments Act. This evening, those proposed regulations finally became available. You can download them from HRhero.com. Thanks to Dan Schwartz for pointing this out.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.