And we thought Danny Ferry was a bad GM

I can't do any more justice to recapping the madness that is the Isiah Thomas sex harassment trial than Bill Simmons has done on espn.com's Page 2, here. Anyone care to predict the verdict? Putting all of the salacious allegations aside, if any one fact is going to doom the Knicks, it's the post-termination memo that came from the desk of the VP for Human Resources (which he denied writing) detailing the plaintiff's performance deficiencies in an attempt to justify her termination after the fact. Ouch.

Ohio Supreme Court rejects common law wrongful discharge age discrimination claim

In a 6-1 decision published today, the Ohio Supreme Court, in Leininger v. Pioneer National Latex, held: "A common-law tort claim for wrongful discharge based on Ohio's public policy against age discrimination does not exist, because the remedies in R.C. Chapter 4112 provide complete relief for a statutory claim of age discrimination. The Court concluded "that is is unnecessary to recognize a common-law tort claim when remedy provisions are an essential part of the statutes upon which the plaintiff depends for the public policy claim and when those remedies adequately protect society's interest by discouraging the wrongful conduct." Because R.C. 4112.02(N) and 4112.99 have broad remedial language allowing for the full panoply of legally recognized relief (i.e., back pay, front pay, compensatory damages, and punitive damages), the age discrimination statute adequately protects Ohio's strong policy against age discrimination and therefore a parallel common law claim is not needed.

This case is significant for two reasons. First, it continues the Ohio Supreme Court's trend towards the reinvigoration of employment at-will, which started in Wiles v. Medina Auto Parts (as an interesting side note, the same lawyer was on the losing side of both Wiles and Leininger). Given the decision in Wiles, though, Leininger's result is not a surprise.

Perhaps more significant is the underlying effect of this decision on the statute of limitations for age discrimination claims. Common law wrongful discharge claims have a four-year statute of limitations. Because state age discrimination claims are now limited to the statute, such claims will be controlled by the statute's 180-day statute of limitations for age claims (unless the employee elects to pursue the lesser remedies of reinstatement/back pay and attorneys' fees available under R.C. 4112.14 and its six-year statute of limitations). It is safe to assume that this case will also do away with public policy claims for all other forms of discrimination, although that effect will most likely not be felt, since R.C. 4112.99 has a six-year statute of limitations for all types of discrimination other than age. As a result of Leininger, and at least as far as state age claims are concerned, employers will have a greater degree of certainty regarding adverse employment decisions after six months (as opposed to four years) have elapsed.

Wage and hour litigation hits the big time

The Wall Street Journal Law Blog has also picked up this week's BusinessWeek cover story on the proliferation of wage and hour litigation and collective actions. The Journal quotes Rochester, New York, employee-side attorney J. Nelson Thomas, "This is the biggest problem for companies out there in the employment area by far. I can hit a company with a hundred sexual harassment lawsuits, and it will not inflict anywhere near the damage that [a wage and hour suit] will." Indeed, Mr. Nelson's law firm's website lists nine separate wage and hour class action lawsuits it is currently handling, against businesses such as Dick's Sporting Goods and NVR, Inc. (aka Ryan Homes), and as a reference for potential clients links to news articles on a half-dozen other successful multi-million dollar lawsuits for back overtime. I cannot stress enough, do not assume that your salaried employees are not entitled to overtime, and do not wait for Mr. Thomas to knock on your door before you figure out whether all of your employees are properly classified and are being paid all to which they are legally entitled. An internal wage and hour audit may cost a few extra dollars up front in legal expenses, but will be immeasurably less expensive in time, aggravation, and actual dollars than defending a wage and hour lawsuit.

Document, document, document!

As the record reflects, there was a myriad of problems with Plaintiff's job performance and treatment of his subordinates that justified Defendants' decision to fire Plaintiff. This, however, is not what Defendants told Plaintiff during their final meeting. Defendants did not tell Plaintiff he was being fired for poor performance, but rather because of an unspecified "personality conflict." While the law does not specifically require an employer to list every reason or incident that motivates its decision to terminate an employee, we are skeptical of undocumented accounts of employee conduct that may have been created post-termination. Under the facts of this case, however, ample evidence exists that indicates that Plaintiff's performance was inadequate to meet his job requirements. In sum, Plaintiff has not put forth sufficient evidence for a jury reasonably to conclude that Defendants did not have an honest belief that Plaintiff performed his job duties poorly.

So said the Sixth Circuit last week in Abdulnour v. Campbell Soup Supply Company, a national origin discrimination case brought by an Iraqi national fired by Campbell Soup for job performance that was less than "M'm M'm Good". The Sixth Circuit upheld the trial court's dismissal of the lawsuit on summary judgment because Abdulnour could not come forward with any evidence, other than his own subjective disagreement, that Campbell Soup did not honestly believe in the reasons proffered for his termination. Clearly, however, as the quote above demonstrates, the appellate court was troubled by the lack of documentation in Abdulnour's personnel file for the alleged performance deficiencies. It is safe to assume that if Abdulnour could have come forward with any evidence at all to support his allegation of pretext, the court would not have hesitated to ding the company for its poor documentation.

The lesson to be learned is basic, but one that cannot be repeated enough. Any employer's greatest defense against a claim of discrimination is a well-documented history of performance problems to support the termination, coupled with comparable treatment of similarly situated employees. When in doubt, document all performance problems with all employees. If the discipline or counseling is oral only, document that fact also. Have all employees sign off on all such records, and if the employee refuses to signify the receipt of the discipline, document that failure as well. The Sixth Circuit in the Abdulnour case cannot be any clearer that when an employer relies on undocumented accounts of misconduct to support a termination, it is fair for the court and a jury to draw the inference that those accounts were created post-termination. The Abdulnour decision is the anomaly, and almost universally cases with poorly documented personnel files will not end well for the employer. Campbell Soup dodged a bullet; do not put your company in similar risk.

Use a wage and hour audit to proactively head off claims

"Wage Wars: Workers are Winning Huge Overtime Lawsuits," graces the cover of this week's BusinessWeek magazine. It should serve as a harsh wake up call for all companies. The article cites recent huge wage and hour settlements and verdicts, including an $18 million settlement paid by Starbuck's and eight and nine figure jury verdicts against Wal-Mart. In fact, the article estimates that American companies have collectively paid over $1 billion to settle these types of claims over the past few years.

The sweatshops of the 1920s and 1930s that led to the passage of the Fair Labor Standards Act and its 40-hour workweek are virtually non-existent. Nonetheless, claims for unpaid overtime continue to rise, more than doubling in the federal courts from 2001 to 2006. Almost always, these cases are not the result of the intentional withholding of overtime premiums. Instead, they fall into two classes: off-the-clock pay claims and the misclassification of employees. The former concerns pay for working through lunch breaks, donning and doffing gear, and required travel time. Regarding the latter, employees fall into two basic classes for coverage by the FLSA, exempt and non-exempt. Companies and the employees themselves often mistakenly assume that white collar employees are exempt, and blue collar employees are not. Paying an employee a salary (as opposed to an hourly wage), however, is not enough to qualify an employee as exempt. The FLSA only provides an exemption if an employee meets the specific qualifications for the executive, administrative, professional, outside sales, or computer employee exemptions. These exemptions are highly fact specific, and wholly depend of the nature of the actual work performed, and not a job title. For example, merely labeling an employee as a manager or supervisor is not enough to qualify an employee for the executive exemption, unless that salaried employee customarily and regularly directs the work of two or more other employees, and has the authority to hire or fire. The other exemptions have similarly stringent requirements (click here for a copy of the federal regulations on these exemptions).

The question is not whether companies need to audit their workforces for wage and hour compliance, but whether they properly prioritize doing so before someone calls them on it. According to the BusinessWeek article: "While violations appear widespread, employees themselves rarely think to make wage and hour claims. Instead, they usually have it suggested to them by lawyers." It is immeasurably less expensive to get out in front of a potential problem and audit on the front-end instead of settling a claim on the back-end. The time for companies to get their hands around these confusing issues is now, and not when employees or their representatives start asking the difficult questions about how employees are classified and who is paid what.

How long is too long for retaliation

Does an employee who complains that she is being discriminated against and is fired three months later have a case for retaliation? According to the Cuyahoga County Court of Appeals in Mendlovic v. Life Line Screening of Am., Ltd., the answer is no. In that case, Mendlovic claimed that she told the owner of the company that her supervisor was not "giv[ing] her a chance" because she is a woman. Two to three months later, she was fired. The court found that the gap between the complaint and her termination did not, as a matter of law, show a sufficient causal connection.

Often, employees feel emboldened after complaining about discrimination, as if granted some sort of immunity from termination. After all, no employer wants to buy a retaliation lawsuit, even if otherwise legitimate grounds exist for the termination. Now, at least in Cuyahoga County, that immunity has a duration. The taint of retaliation will wear off after two or three months, absent any other evidence of retaliation. Notwithstanding, any termination of an employee who has complained about retaliation should always be viewed as high risk, and should never be undertaken without serious deliberation, and in most cases the involvement of your employment lawyer.

The Blog is in trial

Posts will be sparse for the next week or two, as the Blog is in the middle of trial. I'll be keeping a look out for interesting items to post when I can grab a free moment or two.

Court confirms that independent contractors can be discriminated against

In a case affirming the longstanding rule that independent contractors are not covered by Ohio's employment discrimination laws, the Lucas County Court of Appeals highlights the pitfalls employers face in treating workers as independent contractors instead of employees.

Bill Perron served Atlas Roofings as a sales agent. Atlas set forth the terms of his relationship in a Sales Agent Agreement. Under the Agreement, Atlas provided Perron with a specific sales territory, which Atlas could adjust at its own discretion. Perron worked out of an office in his home, and was to use his best efforts to procure customers. Atlas, however, retained control over the products Perron could sell, as well as their pricing and other terms and conditions of sale. Also, Perron was prohibited from selling any competing products. Atlas paid him solely on commission, with no benefits of any kind, because, according to the Agreement, he was "engaged in [his] own independent business." Perron was to maintain his own insurance policies, and pay his own taxes, none of which would be withheld. Finally, to make sure that the terms of the relationship were perfectly clear, the Agreement specifically provided that Perron was an independent contractor.

When Perron turned 65, Atlas began to transition Perron's sales territory to another, presumably younger, representative. In fact, Perron's manager admitted as much in an intra-company e-mail:

As Bill approaches his 65th birthday (late June 2004) we thought of using 2004 as a "transition year" for Bill by starting to develop Bill's eventual replacement group.... Atlas's game plan for Bill Perron had always been for Bill to handle the commercial line for a couple of years, to get him past his 65th birthday.... Thus, the 2004 transition plan would ... keep Bill Perron compensated through November 1, 2004, keeping his Social Security in tack [sic] without fear of penalty for early retirement.

Unsatisfied with a forced retirement, Perron sued Atlas for age discrimination. Despite the smoking gun e-mail, the trial court dismissed the age discrimination claim because Perron was an independent contractor, and not an employee. In Perron v. Hood Indus., Inc. d/b/a Atlas Roofing Corp., the Lucas County Court of Appeals upheld the dismissal of the lawsuit and Perron's treatment as lawful.

While the civil rights laws clearly only cover employees, and not independent contractors, what is not always clear is what qualifies one as an employee as compared to an independent contractor. The Court cited to the well-worn "right of control" test to make its determination:

If the employer reserves the right to control the manner or means of doing the work, the relation created is that of master and servant, while if the manner or means of doing the work or job is left to one who is responsible to the employer only for the result, an independent contractor relationship is thereby created.... Factors to be considered in determining who has the right to control includes indicia such as who controls the details and quality of the work; who controls the hours worked; who selects the materials, tools, and personnel used; who selects the routes traveled; the length of employment; the type of business; the method of payment; any any pertinent agreements or contracts.

The Court agreed that Perron was an independent contractor, and not an employee. In reaching that conclusion, it relied heavily on the language of the Agreement, the fact that he worked out of his home, set his own hours, was paid solely in commissions, received no benefits, and paid his own taxes. The Court was not persuaded by Atlas's discretion and control over its products, pricing, and orders.

Companies might be tempted to use this case as a template for designating workers as contractors. This case, however, could have just as easily been decided in Perron's favor, and on another day it very well might have been. It points out the very real dangers companies face in trying to classify workers as independent contractors. Separate and apart from the serious tax implications of misclassifying an employee as a contractor, I would not want to be in front of a jury trying to justify Atlas's e-mail on a legal distinction between independent contractor and employee. Employers should consider all of the risks associated with classifying someone as an independent contractors, and should not make such a decision without first consulting with employment counsel.

Federal Judge blocks No-Match Rules

The San Francisco Chronicle is reporting that a U.S. District Court Judge Maxine Chesney has issued a nationwide Temporary Restraining Order blocking, at least until October 1, the Department of Homeland Security's recently enacted rules that require employers to terminate undocumented workers. I've previously detailed the new regulations, which specify the steps employers should take upon receipt of a no-match letter from the Social Security Administration. The judge has indicated that to save the regulations the government will have to present evidence showing a connection between a no-match letter and "a reasonable inference that the person is here illegally." The AFL-CIO, which brought the lawsuit, has argued that past experience with no-match letters shows that they are often sent mistakenly because of clerical errors and legal name changes. This issue is one in which employers might be served aligning themselves with labor unions. If the regulations are ultimately struck down, employers will receive a reprieve from the onerous task of re-verifying the employment status of innumerable employees.

Requiring a return-to-work medical certification of full duty or no restrictions violates the FMLA

Rather than reporting on Clark v. Gospel Light Publications, I'll merely direct everyone over to The FMLA Blog. The Clark case holds that a policy requiring that a return-to-work medical certification specify that the employee can work full duty or without restriction violates the FMLA. When you couple this opinion with Bryson v. Regis, in which an FMLA claim was allowed to continue even though the employee could not perform the essential functions of her job at the end of her leave, the FMLA is becoming more and more difficult for employers to administer. Companies face an awful Hobson's choice. You violate the FMLA if you require a doctor's note attesting to the employee's ability to return without restrictions, and also violate the FMLA if you refuse to accept a doctor's note requesting light duty. The FMLA was never intended to create job rights beyond 12 weeks, and yet these two recent decisions seem to do exactly that, much to the likely chagrin of HR departments everywhere.

Happy Labor Day

It might be a little late into the holiday, but I'd be remiss as an employment law blogger if I did not wish everyone a happy Labor Day. No fresh content today (check back tomorrow), but in honor of the holiday of the working person I'm linking to my favorite post from the first three months of the blog -- Lessons from Childrens' Lit.

Is the 40-hour work week relevant?

Yesterday's Cleveland Plain Dealer had an interesting article (available here) on the state of the American work week. Surprisingly, the average person worked 1.7 hours less per week in 2006 as compared to 1956 (39.2 hours versus 40.9 hours). It notes, however, that these statistics can be misleading, since they lump blue collar and white collar workers together. In reality, the white collar workforce is expected to work longer and harder, often putting in 50 and 60 hour weeks. Blue collar workers, on the other hand, only average 34 hours per week. Moreover, despite the shorter average work week, we still work more hours per year in this country than any other Western industrialized country except South Korea. In light of these statistics, is the 40 hour work week as relevant as it was in 1938 when the Fair Labor Standards Act was enacted to curb exploitation, boost job creation, bring the country out of the Great Depression? An argument can be made that regulated overtime is no longer needed, as companies would voluntarily pay overtime to non-exempt employees as a recruiting and retention tool to get and keep the best workers. Regardless, out of the fear of exploitation and a perception of entitlement, the FLSA and its overtime provisions are not going anywhere anytime soon.

Religious discrimination claims rise

This morning's Pittsburgh Post-Gazette reports on the increasing number of religious discrimination cases. Title VII (and Ohio's counterpart, R.C. 4112), prohibits employers from discriminating against individuals because of their religion in hiring, firing, and other terms and conditions of employment. For example, religious harassment is just as illegal as sexual harassment, and an employer has the same duty to investigate a claim by a Muslim employee that he is being harassed on account of his religion as it would have to investigate a claim of sexual harassment by a female employee. In our post-9/11 world, such claims have become more and more prevalent.

The law also requires employers to reasonably accommodate the sincerely held religious practices of an employee or prospective employee, unless doing so would create an undue hardship. Some common examples of reasonable accommodation are flexible scheduling, voluntary substitutions or swaps, job reassignments, and lateral transfers. These situation most often arise when an employee requests a day off for a religious holiday (such as Good Friday or Yom Kippur), or seeks not to be scheduled to work on the Sabbath. An employer can claim undue hardship if accommodating an employee's religious practices requires more than ordinary administrative costs. For example, hiring a new employee or rescheduling other employees would probably present an undue hardship, while other employees volunteering to cover a shift most likely would not. Moreover, a religion does not have to be traditional to qualify for protection. The Post-Gazette article cites a California case in which a vegan bus driver won a judgment against a county transit agency for firing him after he refused to hand out "free hamburger" fliers for a fast food restaurant.

As workplaces are becoming more culturally, ethnically, and religiously diverse, religious discrimination will continue to be a hot button issue. Employers should not ignore requests for accommodations, no matter how strange they might seem. One person's Mind Body Energy is another person's Christianity. The accommodation may have a small price associated with it, but I can assure you such a price will almost always be less than the price of defending a discrimination lawsuit.

Ohio Supreme Court may be asked to clarify Coolidge

In addition to providing a good summary of the history of the public policy wrongful discharge tort in Ohio, Klopfenstein v. NK Parts Industries, Inc. also sets the stage for a potential battle in the Ohio Supreme Court over the proper statute of limitations for a claim under Coolidge v. Riverdale Local School Dist. Coolidge held that an employer cannot discharge an employee who is receiving temporary total disability workers' compensation benefits solely on the basis of absenteeism or inability to work, when the absence or inability to work is directly related to an allowed condition. The Cuyahoga County Court of Appeals, in Brooks v. Qualchoice, held that Coolidge does not create a new public policy exception to the employment at-will doctrine, but instead illustrates conduct that is retaliatory under R.C. 4123.90 (the workers' comp anti-retaliation provision). In Klopfenstein, the Third District Court of Appeals disagreed, holding, "Coolidge creates an independent public policy exception to the employment at-will doctrine." These divergent holding have significant implications, because the two claims have vastly different statutes of limitations. An aggrieved employee has 4 years to file a public policy wrongful discharge claim, as compared to 180 days for a retaliation claim pursuant to R.C. 4123.90. The workers' comp retaliation statute also has strict notice requirements that a claimant must meet as a prerequisite to bringing suit, in addition to more restrictive damages.

Klopfenstein will not be the last word on this issue. Whether in an appeal from that case, or some future case, the Ohio Supreme Court will be called upon to clarify its Coolidge holding and definitively state the proper statute of limitations. In anticipation of that future battle, let me suggest that Klopfenstein was wrongly decided. R.C. 4123.90 states: "No employer shall discharge ... any employee because the employee filed a claim ... under the workers’ compensation act for an injury ... which occurred in the course of and arising out of his employment with that employer." If an employee is terminated because of workers' comp-related absences, that employee is being terminated because of the claim. Thus, the termination falls squarely within the coverage of R.C. 4123.90. It is the job of the legislature, and not the courts, to expand the statute of limitations for Coolidge claims if it sees fit to do so.

Big changes in the political winds?

I've written a lot since starting this blog about the various bills introduced in the House and Senate to amend Title VII and other employment law statutes. Indeed, one of my very first posts asked whether federal legislation would bring us new protected classes. Following my lead, the National Law Journal has nicely summarized the assorted employment law reforms Congress has introduced this session:

• Ledbetter Fair Pay Act: reverses the Ledbetter decision by setting forth that each discriminatory paycheck is a discrete act of discrimination for purposes of triggering Title VII's statue of limitations.
• American with Disabilities Restoration Act: amends the definition of "disability" to undo a decade of Supreme Court precedent.
• Employment Non-Discrimination Act: adds protections for sexual orientation and gender identity to Title VII.
• Genetic Information Non-Discrimination Act: prohibits employment decisions based on genetic information.
• Civil Rights Tax Relief Act: eliminates taxation of non-economic damages received by employment plaintiffs.
• Equal Remedies Act: removes Title VII's caps on compensatory and punitive damages.
• Arbitration Fairness Act: invalidates pre-dispute arbitration agreements requiring arbitration of employment disputes.

Some of these reforms, namely ending the loophole that allows companies to invidiously discriminate on the basis of sexual orientation, are long overdue. Others, such as the ADA Restoration Act, the Equal Remedies Act, and Ledbetter Fair Pay Act, will have far greater and more onerous consequences for employers. Because the Democrats don't have enough votes to overturn a Presidential veto, most of these bills currently are nothing more than political rhetoric. If, however, a Democrat wins the White House, 2009 will be a very interesting year, as companies should expect sweeping changes to federal employment laws, the likes of which have not been seen for more than a decade.

I can't make this stuff up

Ollis v. HearthStone Homes presents a textbook example of how not to make personnel decisions, and is also just plain funny.

The owner and president of HearthStone, John Smith, practices a fringe religion that focuses on Mind Body Energy (MBE) sessions to cleanse one's negative energy. He required his employees attendance at such MBE sessions to enhance their work performance. The case recounts Smith's interesting MBE practices:

According to Smith, an employee’s negative energy could be discovered either through a machine that tests a person’s electromagnetic energy field or through a manual process called “muscle testing.” Muscle testing may require a person to extend his or her arms while answering “yes” or “no” questions. If the person’s extended arms remain strong while questioned as someone pushes down on the arms, the answer is “yes,” whereas, weak arms indicate an answer of “no.” Another example of muscle testing is to place two fingers together and to answer “yes” or “no” questions. If the fingers remain together, the answer is “yes”; whereas, if they separate, the answer is “no.” Smith used muscle testing to make business decisions. Smith equates muscle testing “to someone who may pray before they make decisions.”

On one occasion, Smith determined by muscle testing an employee that drainage problems in a HearthStone subdivision were caused by that employee's ancestors perishing on the land during the Ice Age. Smith determined that the employee was unknowingly defending the land on behalf of her ancestors, and required her to attend MBE sessions to cleanse her negative energy.

Smith also used muscle testing in conducting a sexual harassment investigation against the plaintiff, Doyle Ollis, a devout Christian. After the investigation, Smith terminated him for “poor leadership and lack of judgment," which the jury found to be pretext for Ollis's opposition to Smith's MBE practices and religious discrimination. For the termination, the jury awarded Ollis a whole whopping dollar in damages (plus attorneys fees). Perhaps the jury's low award was influenced by Ollis's admission that he had asked the complaining female subordinate several inappropriate questions, including asking her about her “freakiest” sexual encounter, how long she had known her spouse before she had sex with him, how many sexual partners she had, and if she wore thong underwear. As an aside, HearthStone later terminated the complaining employee for reportedly “removed her clothing at a golf outing and ... doing cart-wheels naked on a golf course.”

Like I said, I can't make this stuff up.

Suspended Bengal claims disability discrimination

The following is from the Cincinnati Bengal's website:

The attorney for Bengals linebacker Odell Thurman has filed a claim of disability discrimination against the NFL. John Michels said Thursday that he has notified the U.S. Equal Employment Opportunity Commission that he feels his client is being discriminated against because he is perceived as an alcoholic.

Michels said it doesn't matter that Thurman acknowledged in court that he is an alcoholic when he appeared for a DUI stemming from a Sept. 25, 2006 traffic stop. He indicated that Thurman has passed all required programs stipulated by the league.

"He has not had an alcoholic problem since the incident last fall," Michels said.

The NFLPA has not yet responded to Thurman's request to appeal to NFL commissioner Roger Goodell's July 26 decision to extend Thurman's year-long suspension for another year. Michels said if the EEOC finds for Thurman, the commission can offer such remedies as reinstatement and back pay.

Michels cited a recent precedent. The EEOC ruled in favor of Roy Tarpley, the former Dalllas Mavericks forward banned in 1995 for violating the league's substance abuse policy. The commission said the NBA violated the Americans with Disabilities Act when it didn't reinstate Tarpley even though he had passed all drug tests taken in the last four years.

Michels said the Bengals are named in the claim only because they are Thurman's direct employers. He said the claim was not a Bengals decision and that the commission is aware that the suspension came from the NFL and not the club.

I'm not sure what to make of this claim. On the one hand, you have a new NFL commissioner try to put his stamp on the league as a no-nonsense disciplinarian. Then again, if Thurman has truly been clean and sober for the past year, and has complied with the terms of his suspension, it could appear that the NFL is punishing him for his addiction, and not past violations of league rules. My best guess is that the EEOC will dodge these tough issues and never reach the merits of the charge, because the entity imposing the discipline, the league itself, is not Thurman's "employer," and his employer, the Bengals organization, had nothing to do with the discipline.

6th Circuit expands FMLA job restroration rights

Yesterday the 6th Circuit decided Bryson v. Regis, a significant FMLA decision that could have far-reaching implications for employers' administration of FMLA leave programs and employees' job restoration rights.

Karen Bryson worked in a Lexington, Kentucky, Supercuts for 15 years, starting as a stylist and working her way to store manager. As store manager, Bryson reported to area manager Kim Sawyer. In December 2003, after injuring her knee more than year hence, Bryson took an FMLA leave of absence for corrective surgery. Deposition testimony revealed that Sawyer was very upset with Bryson's leave, referred to her in management meetings as a "crippled ass," and told co-workers that she would make sure Bryson did not have a job to return to after her leave.

Bryson was scheduled to return on March 10, 2004, at the end of her 12 week entitlement. On March 8, Bryson left Sawyer a voice mail message to let her know that she could not return to full status on March 10. When Sawyer never returned the call, Bryson next contacted one of Sawyer's contemporaries, Julie Wilson. Bryson told Wilson that she would not be able to stand for 10 hours a day, but that she could work a full day albeit with some standing and some sitting. Also on March 8, Bryson's doctor completed Supercut's "Release/Intent to Return to Work" form. On that form, Bryson checked the box that indicated that she could not at that time perform all of the essential functions of her position and was requesting assistance with her temporary restriction of seated work only. Bryson mailed the form to Supercuts on March 8, but Supercuts did not receive it until March 15.

Meanwhile, on March 10, when Bryson was no call/no show, Supercuts terminated her employment via a letter authored by Supercut's corporate FMLA Administrator, which stated: "It has been brought to my attention that as of today your health care provider has not released you to return to work with or without restrictions. Because you have exhausted your 12 workweek entitlement to job protected leave under the FMLA, we are unable to continue to hold your position."

Bryson sued Supercuts and its parent corporation, Regis Corp., for FMLA retaliation and disability discrimination. The district court granted summary judgment to the employer and dismissed Bryson's lawsuit. The Sixth Circuit, however, in a decision that has potentially far-reaching implications in how employers administer their FMLA leave programs, reversed the dismissal of the FMLA retaliation claim and remanded the case for trial.

The resurrection of Bryson's FMLA claim is troubling. The Court focused on the gap between Supercut's letter of termination and its receipt of Bryson's "Release/Intent to Return to Work" form, coupled with Sawyer's anger over the leave. It found those two factors to be sufficient evidence of pretext to get this case to a jury. It appears that the 6th Circuit was bothered by Sawyer's comments, and saved Bryson's claim even though she could not have been legally entitled to her job on March 10. Indeed, the Court's analysis ignores one crucial undisputed fact -- regardless of anyone's intent, Bryson was simply not able to return to her job on March 10. She was instead requesting reinstatement to a temporary light duty position, but as the 7th Circuit confirmed earlier this month, the FMLA does not provide for light duty. Nevertheless, Bryson v. Regis implies, if not explicitly holds, that employers cannot terminate an AWOL employee at the end of FMLA leave if the employer knows that the employee can return to work in some limited fashion.

This case seems to create new rights under the FMLA that heretofore did not exist. Even though Bryson was not disabled under the ADA, the 6th Circuit seems to require Supercuts to have accommodated her injury either by providing her light duty, otherwise modifying her job functions, or extending her leave beyond the FMLA's 12 weeks. Bryson presents a significant expansion of FMLA rights, and places all similar terminations at risk unless the employee is entirely unable to return in any capacity at the end of the FMLA leave.

The Bryson case is also a good reminder for companies to build examples such as Sawyer's retaliatory comments into management harassment training. While the 6th Circuit seems to have expanded employee job restoration rights under the FMLA, one has to wonder if this case would have come out differently without Sawyer's statements about Bryson's injury and continued employment.

Does individual liability have unintended consequences?

Law.com reports today on the increasing number of executives and managers being personally sued for their work-related decisions. Under Ohio's employment discrimination statute, managers and supervisors have been personally liable for their own acts of discrimination since the Ohio Supreme Court decided Genaro v. Central Transport in 1999. The federal wage and hour laws (the FLSA, the FMLA, and the Equal Pay Act) also provide for personal liability, but the same does not hold true for Title VII, the ADEA, and the ADA. Many Ohio discrimination suits name an individual in addition to the company because suing a local manager or supervisor of a non-local company will block removal to federal court. Does that strategy, however, have an intended consequence? According to the law.com article, some attorneys believe that naming an individual unnecessarily ups the ante in employment discrimination cases, causing the defense to dig in their collective heels, making cases more difficult to settle because more people are involved who want their personal reputations cleared. In fact, employers often take these cases just as personally as do employees, because they involve hurtful allegations of racism, sexism, or other forms of bigotry. Whether suing a manager or supervisor will render a case more difficult to resolve should be considered before any individual is added as a defendant to a discrimination suit.

UPDATED - New rules require termination of illegal immigrants

The Department of Homeland Security has announced new rules on the safe-harbor procedures for employers who receive SSA No-Match Letters. These rules require employers to terminate any employee who uses a fake social security number or otherwise cannot be documented as legal. The DHS has also published an interactive Safe Harbor Information Center for employers.

The regulations describe with specificity what steps employers should take upon receipt of a no-match letter:

1. Verify within 30 days that the mismatch was not the result of a record-keeping error on the employer’s part;
2. Request that the employee confirm the accuracy of employment records;
3. Ask the employee to resolve the issue with SSA;
4. If these steps lead to resolution of the problem, follow instructions on the no-match letter itself to correct information with SSA, and retain a record of the verification with SSA; and
5. Where the information could not be corrected, complete a new I-9 form without using the questionable Social Security number and instead using documentation presented by the employee that conforms with the I-9 document identity requirements and includes a photograph and other biographic data.

Employers unable to confirm employment through these procedures risk liability for violating the law by knowingly continuing to employ unauthorized persons.

Costs of compliance will potentially be high, especially for those employers that rely upon unskilled labor. Costs of non-compliance, however, could potentially be devastating. Employers cannot ignore these new rules. If you choose to disregard a No-Match Letter, and it is later determined that some of the employees listed are not authorized to work, your receipt of the letter is evidence that you have knowingly continued to employ unauthorized workers, which could lead to significant criminal and civil sanctions.