WIRTW #112

Here’s what you missed this week if you’re only reading my blog.

Labor

• Breakfast with NLRB Regional Director - (Part 3) - What Issues Should Employers Be On the Lookout For? – from Daniel Schwartz’s Connecticut Employment law

• Installing webcams an unfair labor practice? – from the LawMemo Employment Law Blog

• WSJ: Labor Leaders Assess EFCA's Prospects After Brown Election in MA – at the EFCA Report

• DOL Argues State Wage and Hour Class Actions are Compatible with the FLSA – from the Washington D.C. Employment Law Update

Sex Discrimination & Harassment

• Pregnancy discrimination in the workplace still a very live issue – from Donna Seale’s Human Rights in the Workplace

• Adverse employment action based on gender-related non-conforming behavior and appearance is impermissible – from Employment Law Matters

• Of slacks and sex discrimination – from Colleen McGushin’s Work Matters

• Do employers have a heightened duty to protect teen workers from harassment? – by Sindy Warren at the Warren & Hays Employment Law Blog by Sindy

• Judging Credibility of Witnesses in Harassment Investigation – via Debra Reilly’s Workplace Investigations Blog

Non-Competition Agreements

• Court Orders Barring Enforcement of a Non-competition Agreement - Reverse Injunctive Relief – via the My Employment Lawyer Wiki

• Jay & Conan - Best Legal Analysis Roundup – via Teri Rasmussen’s Ohio Practical Business Law

Social Networking

• FINRA Issues Guidance on Blogs and Social Networking Web Sites – from the Social Networking Law Blog

• Q&A On Using Social Networks For Background Screening – from fyiscreening.com

Miscellaneous

• State of the Union — Employment Law – from The Word by John Phillips

• “Zubulake Revisited: Six Years Later” Judge Shira Scheindlin Issues her Latest e-Discovery Opinion – from Electronic Discovery Law

• Sorry Fido, You Won't Qualify Your Owner for FMLA Leave – at the Prima Facie Law Blog

• The Aftermath of a Supreme Court Decision: Another MDV – from Michael Fox’s Jottings By An Employer's Lawyer

• Importance of Litigation Avoidance and Proactive Practices – by Stephanie R. Thomas, Ph.D.

• Shabby Treatment at Termination Begs for a Lawsuit – from HR Daily Advisor

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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.

Don’t forget about the retaliation

According to a story on NJ.com, a jury has ordered an adult novelty company to pay $500,000 to a fired saleswoman. She had sued for harassment and retaliation following her termination, claiming that she was fired after complaining about harassment by a co-worker. According to her attorney, “The president of the company yelled and screamed at her and disciplined her for the first time in the four years she’d worked there. He accused her of saying bad things about the company.”

We can debate whether someone who chooses sell adult products can be sexually harassed. What should not be open to debate, though, is that a company cannot berate, discipline, or terminate an employee following a harassment or discrimination complaint. Allegations of retaliation often turn a defensible EEO lawsuit into a huge liability risk. Unfortunately, this lesson is one that many companies do not learn until it’s too late.

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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.

What’s good for the goose isn’t always good for the gander: legal fees in employment lawsuits

One of the questions clients often ask me is whether they can pursue a plaintiff for defense costs after a successful dismissal. It only seems fair to the client that if they have to pay legal fees if the employee wins a discrimination lawsuit, the employee should be held to the same standard.

The answer is that an employer can pursue a plaintiff for legal fees, but it has to prove that the lawsuit was brought frivolously, which is a tall order. Ohio law defines frivolous conduct as follows:

• It obviously serves merely to harass or maliciously injure another party to the civil action or appeal or is for another improper purpose.

• It is not warranted under existing law, cannot be supported by a good faith argument for an extension, modification, or reversal of existing law, or cannot be supported by a good faith argument for the establishment of new law.

• The conduct consists of allegations or other factual contentions that have no evidentiary support or are not likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.

• The conduct consists of denials or factual contentions that are not warranted by the evidence or are not reasonably based on a lack of information or belief.

While it is not impossible, it is very difficult to prove that a employee acted frivolously in filing an employment lawsuit. Instead of spending time and money worrying about recouping legal fees from ex-employees, employers would better served chalking up litigation expenses as a cost of doing business, or simply avoiding litigation in the first place.

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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.

Do you know? FMLA leave for unmarried fathers

Do you need another reason to get married? The FMLA provides husbands greater rights than unwed fathers.

The FMLA distinguishes between fathers and husbands based on the type of FMLA-leave sought:

• Fathers are entitled to FMLA leave for the birth of their child and for paternity leave to be with the healthy newborn child (i.e., bonding time) during the 12-month period beginning on the date of birth.

• However, only husbands are eligible to take leave to care for his incapacitated pregnant spouse, to care for her during her prenatal care, or to care for her following the birth of a child if she has a serious health condition.

The FMLA only grants unmarried fathers paternity leave rights. It gives no benefit to the unmarried for any leave to care for the baby’s mother, either prenatally or postnatally.

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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.

Faith healing and the FMLA

The Smart HR Manager brought to my attention a recent case out of Massachusetts which held that an employee could not use FMLA leave to care for a spouse with a serious health condition who seeks to travel abroad for faith-based healing. The opinion, however, dodges the issue of whether faith-based healing is covered by the FMLA. Instead, it dismissed the FMLA claim because more than half of the trip was spent visiting family and friends and sightseeing, and the FMLA does not permit employees to vacation with a seriously ill spouse, even in a caregiving capacity.

The case, though, got me to thinking, is a faith-healer covered under the FMLA as a “health care provider?” The most logical place to look is the FMLA’s regulations. Section 825.125 defines a “health care provider” as—

1. A doctor of medicine or osteopathy;

2. Podiatrists, dentists, clinical psychologists, optometrists, and chiropractors;

3. Nurse practitioners, nurse-midwives, clinical social workers and physician assistants;

4. Christian Science Practitioners listed with the First Church of Christ, Scientist in Boston, Massachusetts; or

5. Any health care provider from whom an employer or the employer’s group health plan’s benefits manager will accept certification of the existence of a serious health condition to substantiate a claim for benefits.

Faith-healers do not fall under any of these categories. This conclusion only resolves whether the FMLA covers leave for faith-healing. It does not address whether other laws – such as Title VII’s religious discrimination protections – protect these employees, which is a topic for another day.

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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.

WIRTW #111

Conan O’Brien, Jay Leno, and NBC continue to dominate the headlines this week. I’ve previously shared my thoughts. Here’s what my fellow bloggers had to say this past week:

• What Can Employer’s Learn From Conan O’Brien’s Severance Agreement? – via Molly DiBianca at Delaware Employment Law.

• What Does the Conan-Leno-NBC Debacle Mean for Entertainment Law? – from Above the Law.

• Conan, Leno, Letterman, Money – at The Word on Employment Law with John Phillips.

• Boss Basics: Real Leaders Really Take Care of Their Staffs – from The Business of Management.

• Lessons from Conan's Non-Compete Negotiations – via Rob Radcliff’s Smooth Transitions.

• Thoughts on the Conan O'Brien Debacle – by the Workplace Diva.

The other big story of the week was the election of Scott Brown to fill the late Ted Kennedy’s Senate seat. It cost the Democrats their super-majority, and will have long-lasting effects on the President’s agenda, including his ambitious slate of labor and employment reforms. Here’s what other have to say about the swing of the political tide in Washington:

• The Brown Effect: Is EFCA Dead? – from Mark Toth’s Manpower Employment Blawg.

• How Will Brown's Win Impact Labor and Employment Law? – from the Washington DC Employment Law Update.

• Another Blow to EFCA Passage – via Workplace Horizons.

• Scott Brown win spun as “victory” by Big Labor – at LaborPains.org.

• The Importance Of Scott Brown: Everyone Agrees, But… – via Discriminations.

As for other news of the week that you might have missed…

• The True Cost of Employment Litigation – via Dan Schwartz’s Connecticut Employment Law.

• Comment on ‘Go Time’ For Discrimination Claims – by Stephanie Thomas.

• A Trap for the Unwary: "Professional" Duties and the Professional Exemption – from New York Labor and Employment Law Report by Joseph Dole.

• Employment-related class actions on the rise – by Sindy Warren at the Warren & Hays Employment Law Blog.

• Discrimination on the basis of “color” – at Maryland Employment Law Developments.

• Is This Retaliation or Discrimination? – at the UndercoverLawyer.

• Less Than 15 Employees? There's Always Immigration Discrimination – from Michael Fox’s Jottings By An Employer's Lawyer.

• Non-Disabled Applicant Can Go To Trial Based on Company's Pre-Employment Medical Inquiry, Says Eleventh Circuit – from Florida Employment Law.

• Catch Fishy FMLA Requests With the 3 R's – via Mindy Chapman’s Case in Point.

• Is the job so easy a caveman could do it? – at the Wage & Hour Defense Blog.

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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.

Warning – vulgar language ahead: 11th Circuit decides whether tasteless workplace behavior is actionable as sexual harassment

We recite the profane language that allegedly permeated this workplace exactly as it was spoken in order to present and properly examine the social context in which it arose. We do not explicate this vulgar language lightly, but only because its full consideration is essential to measure whether these words and this conduct could be read as having created “an environment that a reasonable person would find hostile or abusive.”

So starts the 11th Circuit’s opinion in Reeves v. C.H. Robinson Worldwide (1/20/10) [pdf], which decides the issue of whether vulgar language to which all employees (male and female) are equally exposed is actionable as sexual harassment.

The court made a clear distinction between general vulgarities and sex-specific epithets:

While the record is replete with evidence of general, indiscriminate vulgarity, there is also ample evidence of gender-specific, derogatory comments made about women on account of their sex….

Reeves … identified a substantial corpus of gender-derogatory language addressed specifically to women as a group in the workplace. Her coworkers used such language to refer to or to insult individual females with whom they spoke on the phone or who worked in a separate area of the branch. Although not speaking to Reeves specifically, Reeves said that her male co-workers referred to individuals in the workplace as “bitch,” “fucking bitch,” “fucking whore,” “crack whore,” and “cunt.”

Thus, the court differentiated between general, gender-nonspecific swear words, such as shit and fuck, (maybe improper, but not necessarily unlawful) as compared to gender-specific epithets such as bitch, whore, and, the granddaddy of them all, cunt (unlawful harassment).

[T]he context may illuminate whether the use of an extremely vulgar, genderneutral term such as “fucking” would contribute to a hostile work environment. “Fucking” can be used as an intensifying adjective before gender-specific epithets such as “bitch.” In that context, “fucking” is used to strengthen the attack on women, and is therefore relevant to the Title VII analysis. However, the obscene word does not itself afford a gender-specific meaning. Thus, when used in context without reference to gender, “fuck” and “fucking” fall more aptly under the rubric of general vulgarity that Title VII does not regulate….

[W]ords and conduct that are sufficiently gender-specific and either severe or pervasive may state a claim of a hostile work environment, even if the words are not directed specifically at the plaintiff…. It is enough to hear co-workers on a daily basis refer to female colleagues as “bitches,” “whores” and “cunts,” to understand that they view women negatively, and in a humiliating or degrading way. The harasser need not close the circle with reference to the plaintiff specifically: “and you are a ‘bitch,’ too.”

To conclude:

• General vulgarities are not actionable as harassment.
• Severe or pervasive gender-specific words or phrases are actionable as harassment even if the words are not specifically directed at one employee, but merely generally used in the workplace.
• Severe or pervasive conduct targeting a protected group also qualifies as actionable harassment.

The takeaway for employers – words are sometimes not just words, and businesses should respond to complaints about coarse or vulgar language as they would to any other complaint of harassment. An employer cannot just assume that words are harmless and bury its head in the sand.

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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.