Remedies available for destruction of computer files

Employers can take a lot of internal steps to protect confidential and proprietary information. Confidentiality and non-disclosure policies, limiting distribution to a need-to-know basis, passwords to secure data, locks for file cabinets, and security cameras are some of the more common tools at an employer's disposal. One thing that is difficult to guard against, though, is a disgruntled employee purposely sabotaging or destroying data, which is exactly what Fox News is reporting happened to an architectural firm in Jacksonville, Florida. An employee saw a help-wanted ad in the newspaper for her job, assumed she was about to be fired, went into the office late at night, and erased 7 years' worth of drawings and blueprints worth $2.5 million.

In cases such as these, where an employee erases data, the employer has a federal statutory remedy – the Computer Fraud and Abuse Act. This criminal statute generally prohibits one from causing the transmission of a program, information, code, or command, and as a result of such conduct, intentionally causes damage without authorization to a protected computer.

The seminal case for employee liability under this statute is International Airport Centers v. Citrin. In that case, Citrin decided to quit his employment with IAC and going into business for himself. Before returning his laptop to IAC, he wiped the hard drive loading a secure-erasure program, permanently erasing all of the stored data. His intent was not only to prevent his employer from recovering his work product, but also to hide the improper conduct in which he had engaged before he decided to quit. The 7th Circuit permitted IAC to pursue a private cause of action against Citrin under the Computer Fraud and Abuse Act. To date, no Ohio Court that I am aware of has ruled on whether this liability is available under the CFAA.

While courts are still wrestling with the limits of the CFAA in the employment context, it provides employers with a powerful weapon against disgruntled employees and employees who seek to harm an employer for anti-competitive purposes. To try to deter this type of conduct in your workplace, think about putting language into employee handbooks that informs employees that it would be a violation of federal law to engage in this type of industrial espionage.

[Hat tip: Strategic HR Lawyer]

DOL proposes FMLA changes

In June 2007, the Department of Labor published a 181-page report on the FMLA that concluded, "In the vast majority of cases, the FMLA is working as intended." So, if the FMLA is working just fine, why is today's New York Times reporting that the DOL has proposed new regulations to address corporate complaints that workers are abusing the FMLA?

The Times reports that the proposed changes would require workers to call in to request a leave before being eligible to take it, eliminating the current two-day grace period, with an exception for employees who are too ill to call in. The DOL also proposes tightening medical certification procedures to eliminate disagreements over whether an employees had done enough to show they qualified for leaves.

While this is certainly a step, it remains be seen if this is a step in the right direction for employers who are dying for some help with the FMLA quagmire.

What else I'm reading this week #15

This week has been a historic one for the Blog, as I passed 10,000 visits. Thank you to all my readers for helping me reach this milestone. Part of this success comes from links from other blogs, so allow me to return the favor.

John Phillips from The Word on Employment Law publishes Part IV in his series on Avoiding Employment Lawsuits, focusing on whether you should offer a terminated employee the opportunity to resign.

Dan Schwartz at the Connecticut Employment Law Blog reports on a 2nd Circuit case that reminds us of a very important wage and hour point: if an employee works overtime, you have to pay it even if it was not authorized and even if you have a policy that says it won't be paid unless authorized.

Michael Moore from the Pennsylvania Employment Law Blog continues his series on Five Things Every HR Generalist Should Know, this time focusing on the classification of workers as employees or independent contractors. For my thoughts on this prickly issue, check out Stripping independent contractor protections.

Workplace Horizons has a very thorough post on Microsoft's scary new employee monitoring patent.

D. Jill Pugh's Employee Handbooks Blog gives us some more pointers to keep in mind when firing an employee.

The Labor & Employment Law Blog gives us 5 ways to avoid whistleblower retaliation claims.

HR World reminds us that family-friendly policies help attract and retain employees. I've also written on the pros and cons of family friendly policies.

Alaska Employment Law comments on how well intentioned laws such as the ADA have unintended consequences.

Finally, Lou Michels from Suits in the Workplace reminds us of the dangers instant messaging can cause in the workplace.

An expectational argument for overtime pay

Another day, another wage and hour issue.

In 2006, IBM settled a wage and hour class action lawsuit for $65 million. In the lawsuit, it was alleged that IBM had misclassified 7,600 technical workers as exempt and therefore withheld overtime from them. As a result of the settlement, IBM has reclassified those employees as non-exempt, and has begun to pay them overtime. However, to ensure that the employees not be paid a higher overall salary, IBM has cut their salaries by 15% to compensate for overtime payments. The goal is not to punish the employees, but to keep their total compensation roughly the same as before the reclassification. [See IBM Cuts Base Salaries by Switching 7,600 Workers to Nonexempt Status.]

The blogosphere is starting to light up with criticism of IBM. From HR World: "Newsflash, people aren’t stupid: salary is guaranteed income and overtime is not. Can you say disgruntled employees?"

Let me offer a different perspective, based on expectations. Let's say someone is hired and told, "We are going to pay you $60,000 a year." So, twice a month, the employer expects to cut a check for $2,500 and the employee expects to receive a check for that amount. Now, let's say the Department of Labor comes in and says, "No, no, that is a non-exempt position. You have to pay that employee overtime." Why should that change the fact that the employee still expects to earn $60,000 per year? The employee is doing the same exact work, and should expect the same pay. The only thing that has changed is the Department of Labor's opinion on an exemption. But that determination should have no effect on the employee's salary expectation. So, if an employer wants to figure out what hourly rate, coupled with an average amount of overtime, will get an employee to the expected $60,000 per year, where's the harm? I need someone to explain to me how the employee has been hurt.

Fortune Small Business Magazine: The ticking time bomb of overtime

Fortune Small Business Magazine has a frightening article this week on fatal wage and hour mistakes. While I've written on this topic repeatedly, this article caught my eye because it spotlights an Ohio company that got caught in the Department of Labor's cross hairs.

Rod Cotner, owner of Jericho Mortgage in Lancaster, Ohio, was shocked when the U.S. Department of Labor showed up at his door to investigate a wage-and-hour lawsuit filed on behalf of his 54 loan officers and sales managers. His company was growing - sales exceeded $4 million that year - and his employees were profiting: "Some of the staffers named in the lawsuit were making over $150,000," he says. "After working in the industry for years, I'd never heard of this happening. Everyone pays their officers on a commission basis. How can someone who makes six figures a year demand back wages for his time?"

Ultimately, the lawsuit cost Cotner a $220,000 settlement of back overtime, untold legal fees, and has caused him to cut his staff to fewer than 10 employees. Needless to say, Jericho Mortgage exemplifies how a Department of Labor investigation can devastate a small business.

What really grabbed my attention was this quote: "Cotner, 37, incorrectly assumed that his employees were exempt under the U.S. Fair Labor Standards Act." Jericho Mortgage was not trying to game the system. He was merely doing what his years of experience told him was industry practice, figuring that commissioned loan officers who were earning a good living during the height of the mortgage boom couldn't possibly gripe about their wages. Nevertheless, this small business owner, who was not out to hurt anyone, has had his business decimated.

The fact is few if any companies do wage and hour perfectly. The biggest mistake the a company can make, though (apart from intentionally trying to skirt their obligations) is to assume that employees are not owed overtime. The regulations that govern who is and is not exempt are complex, tricky, and highly fact sensitive. Companies should be engaging lawyers to scrutinize their exempt classifications to ensure that all employees who are supposed to be paid overtime are being paid overtime. All it takes is one phone call by a disgruntled employee to the Department of Labor for any company to be in the same shoes as Jericho Mortgage. Ask anyone who's been audited by the DOL - those are very uncomfortable shoes to wear.

For other posts I've done on the topic of wage and hour audits and the proliferation of these claims, take a look at:

• Use a wage and hour audit to proactively head off claims
• Wage and hour litigation hits the big time
• Department of Labor investigations highlight important wage and hour compliance issues

[Hat Tip: California Labor & Employment Defense Blog]

Take two in FMLA expansion for military families

Both the House and Senate have again overwhelmingly signed the National Defense Authorization Act that President Bush vetoed at the end of last year. It now sits on President Bush's desk where he again is expected to sign it. While I've been burned on this once before, I am optimistic that the President will sign the bill this time. A White House spokesman has said that President Bush is expected to sign the revised legislation. The bill will expand the FMLA to provide FMLA leave because of exigencies related to active military duty, permit an eligible employee to take up to 26 weeks of FMLA leave to care for an injured servicemember, and adds "next of kin" to the family members entitled to take such FMLA leave.

[Hat tip: The FMLA BLog]

Ohio appellate court puts age discrimination statute of limitations in doubt

Ohio's age discrimination statute of limitations has always been one of the quirks of Ohio employment law. All discrimination claims under R.C. Chapter 4112 have a six-year statute of limitations, except for age claims. Until recently, it has been well established that an age claim brought under R.C. 4112.99 had a 180-day statute of limitations. Meyer v. United Parcel Serv., Inc., decided last month by the Hamilton County Court of Appeals, rejects that longstanding conventional wisdom, and holds that plaintiffs have six years to bring such age claims.

One can bring an action for age discrimination under four different provisions within R.C. Chapter 4112:

• First, R.C. 4112.02(N) prohibits discrimination in employment on the basis of age and provides for "any legal or equitable relief that will effectuate the individual's rights." An age-discrimination claim under this statute must be brought within 180 days of the alleged unlawful discriminatory practice.
• Second, R.C. 4112.14(B) provides a remedy for age-based discrimination in the hiring and termination of employees "which shall include reimbursement to the applicant or employee for the costs, including reasonable attorney's fees, of the action, or to reinstate the employee in the employee's former position with compensation for lost wages and any lost fringe benefits from the date of the illegal discharge and to reimburse the employee for the costs, including reasonable attorney's fees, of the action." A six-year statute of limitations applies to these claims.
• Third, R.C. 4112.99 provides an independent civil action to seek redress for any form of discrimination identified in R.C. Chapter 4112. The statute makes violators of R.C. Chapter 4112 "subject to a civil action for damages, injunctive relief, or any other appropriate relief."
• Finally and alternatively, a plaintiff may file a charge administratively with the OCRC under R.C. 4112.05., but such a filing acts as an absolute bar to instituting a civil action in court.

When filing an age claim, one must elect which statute one is filing under.

At least as far back as the Ohio Supreme Court decided Bellian v. Bicron Corp. in 1994, it has been well established that an age claim under R.C. 4112.99 is subject to the 180-day statute of limitations in R.C. 4112.02(N). See Oker v. Ameritech Corp. ("An age-discrimination claim brought pursuant to R.C. Chapter 4112 must be initiated within the one-hundred-eighty-day statute of limitations period set forth in former R.C. 4112.02(N)."); McNeely v. Ross Correctional Inst. ("Whether an age discrimination claim is premised on R.C. 4112.02 or 4112.99, a plaintiff must file the claim within 180 days of the alleged discriminatory act.").

The Hamilton County Court of Appeals, however, has put this conventional wisdom in doubt. In Meyer v. United Parcel Serv., Inc., that court concluded that because R.C. 4112.99 provides an independent cause of action, it is separate from R.C. 4112.02(N), and therefore subject to the same six-year statute of limitations as other claims brought under R.C. 4112.99. The Court based its rationale on the recent Ohio Supreme Court decision in Leininger v. Pioneer National Latex holding that Ohio does not recognize a common-law tort claim for wrongful discharge based on the public policy against age discrimination:

Recently, in Leininger v. Pioneer National Latex, the Ohio Supreme Court held that Ohio does not recognize a common-law tort claim for wrongful discharge based on the public policy against age discrimination, "because the remedies in R.C. Chapter 4112 provide complete relief for a statutory claim for age discrimination." In reaching its holding, the court reiterated its prior holding that had rejected the argument that the specific-remedies provisions of subsections within the chapter prevail over the more general provisions of R.C. 4112.99. The court noted that "R.C. 4112.08 requires a liberal construction of R.C. Chapter 4112. Although R.C. 4112.02(N), 4112.08, and 4112.14(B) all require a plaintiff to elect under which statute (R.C. 4112.02, 4112.05, or 4112.14) a claim for age discrimination will be pursued, when an age discrimination claim accrues, a plaintiff may choose from the full spectrum of remedies available. Leininger's argument also does not take into account the scope of R.C. 4112.99's remedies. In Elek v. Huntington Natl. Bank (1991), 60 Ohio St. 3d 135, 573 N.E.2d 1056, we stated that R.C. 4112.99 provides an independent civil action to seek redress for any form of discrimination identified in the chapter. Id. at 136. A violation of R.C. 4112.14 (formerly R.C. 4101.17), therefore, can also support a claim for damages, injunctive relief, or any other appropriate relief under R.C. 4112.99. This fourth avenue of relief is not subject to the election of remedies."

Meyer's logic is a tortured reading of Leininger, which expressly found that R.C. 4112.02(N) and R.C. 4112.99 are subject to the same statute of limitations for age claims:

Although R.C. 4112.14 was the only statutory claim available to Leininger at the time she filed her complaint due to the expiration of the statute of limitations for claims under R.C. 4112.02 and 4112.05, this fact does not justify limiting our examination of the available remedies under the chapter as a whole. In determining whether a common-law tort claim for wrongful discharge based on Ohio's public policy against age discrimination should be recognized, we need to look at all the remedies available to a plaintiff at the time the claim accrued.

There is certainly some appeal to the argument that it does not make any sense that age claims and all other discrimination claims have different statutes of limitations. On the other hand, R.C. Chapter 4112 has three distinct remedial statutes for age discrimination, more than any other type of discrimination. The point is that if we are going to change the statute of limitations, it should be done by the legislature, and not by an appellate court diverging from 14 years of precedent. To again quote the Leininger decision: "Leininger contends that the short statute of limitations of R.C. 4112.02 ... detracts from the remedial scheme of R.C. Chapter 4112. The period within which a claim must be brought, however, is a policy decision best left to the General Assembly."

The Meyer case is most likely an anomaly. Regardless, if you are practicing in Hamilton County, you should be aware that employees have six-years to file their age claims in that court. This issues bears watching to see if any other appellate districts follow suit, or if the Supreme Court takes up this issue to resolve this recent divergence of opinion.

New breed of employee handbook creates legal problems

The blogosphere has been hopping the past several days over the new employee handbook drafted by newspaper conglomerate the Tribune Company. Rather than recapping the issues, I'll merely direct everyone to a very good summary at the Connecticut Employment Law Blog.

To sum up, though, the Tribune's new handbook (which comes in at a very concise 11 pages) is very informally written, probably in an attempt for it to be better understood. When your harassment policy, however, tells employees:

Working at Tribune means accepting that sometimes you might hear a word that you, personally, might not use. You might experience an attitude that you don't share. You might hear a joke that you might not consider funny.... This should be understood, should not be a surprise and is not considered harassment. Harassment means being told that a raise, promotion or other benefit is dependent on you going on a date with your boss or some other similar activity.

you might have a problem. Limiting the definition of sexual harassment to quid pro quo is a serious misstatement of the law that a review by a lawyer would have caught and corrected. Jocularity and informality are one thing, if that is the image you want to present. Discouraging employees from reporting a hostile environment by incorrect statements of the law is entirely different. There is nothing wrong with savings costs by drafting your own employee handbook. Not having a lawyer review it before it is disseminated, however, will end up costing a company a whole lot more in litigation costs then if it just had a lawyer draft it in the first place.

Untangling Employment Practices Liability insurance

Earlier this month, law.com had a very insightful article on the advantages and pitfalls of business insurance policies. See On the Horns of a Defense Counsel Dilemma. While the article did not specifically concern Employment Practices Liability policies, the issues are the same. Any insurance policy sets up a very curious relationship - the relationships between the policy holder and insurance company, the law firm and their insurance carrier referral source, and the attorney-client relationship.

When I used to do a lot of work for clients under EPL policies, the refrain I most often heard from my client was, "You're the insurance company's lawyer." Nothing could be further from the truth. Unless an insured has paid for the right to select counsel, the insurance company selects and retains counsel for the insured under the EPL policy, and, subject to the policy's deductible, pays the fees. The client, though, is always the insured, and not the insurance company. Ohio law supports the idea that although there exists this odd "tripartite relationship" between the insured, the lawyer, and the insurance company, the only attorney-client relationship that exists is between the lawyer and the insured; there exists no such relationship between the lawyer and the insurance company. A lawyer's ethical duties are always solely owed to the insured. See Swiss Reinsurance Am. Corp., Inc. v. Roetzel & Andress

Notwithstanding any EPL converage a company might have, there are certain key instances where a company may want to have its own employment or corporate counsel involved in litigation, working along side insurance counsel.

• EPL insurance will cover some, but not all, employment related claims in the state of Ohio. For example, it is illegal to insure against punitive damages in this state. Further, different policies may cover different types of claims. For example, discrimination claims may be covered, and wage and hour claims not covered. Therefore, it is important at the outset of any engagement in which there may be insurance coverage to have counsel review the claims, the policy, and any reservation of rights letters to make a determination as to what is and is not covered. Counsel may not agree with the insurance company on coverage. In that case, one is usually better served having an attorney fight that battle with the insurance company.
• Because not all claims may be insured, one might be left with uninsured exposure in a case. Punitive damages or damages that exceed policy limits are two examples of uninsured exposure. Because one might have certain aspects of a case for which there is no insurance coverage, it may be wise to have separate counsel monitoring the litigation, and if the stakes are high enough, taking an active role to hedge against the uninsured risk.
• Conflicts can also arise between the client's interest and that of the insurance company. How to defend a case, whether to settle, and for how much are all issues with which the insured and the insurer can have divergent issues. If such a conflict occurs, the insured may question the loyalty of the attorney hired by the insurance company. In such a circumstance it makes sense to get an outside law firm involved to manage the conflict, push back against the insurance company to triumph your interests, and even possibly take over the defense if the conflict cannot be resolved.

When these issues arise, they are rarely simple or easily resolved. Understanding the nature of this tripartite relationship is the first step in taking control of the process and ensuring that a defense is complete and proper.

Some words to ponder on MLK Day

Forty-five years ago, "the civil rights movement swirled into Birmingham, a city whose bitter resistance to change made it a battleground." Jack Bass, Unlikely Heroes 201 (1981). Dr. Martin Luther King Jr. remarked, "If we can crack Birmingham, I am convinced we can crack the South. Birmingham is a symbol of segregation for the entire South." Id. By blood, toil, and tears, segregation was, of course, cracked in Birmingham, and today the city is led by its fourth black mayor and a majority-black city council. Against this historical backdrop, this appeal from the Northern District of Alabama offers, amid a host of technical issues, an important reminder: despite considerable racial progress, racism persists as an evil to be remedied in our Nation.

Such are the words of the Hon. William H. Pryor Jr. of the 11th Circuit Court of Appeals in Goldsmith v. Bagby Elevator Co. Goldsmith involves appalling allegations of racial harassment, which resulted in a substantial jury verdict affirmed by the 11th Circuit. This Martin Luther King Day is as good a time as any for everyone to stop and reflect on Judge Pryor's words, and ask if you are doing all that you can to combat discrimination of all kinds in your workplace.

Supreme Court to hear retaliation (Crawford v. Nashville) and ADEA disparate impact (Meacham v. Knolls Atomic Power) cases

The U.S. Supreme Court has granted cert. in two more employment cases to be heard this term.

Crawford v. Metropolitan Government of Nashville, which is out of the 6th Circuit, asks if Title VII's anti-retaliation provision protects an employee from being fired because she cooperated with her employer's internal sexual harassment investigation.

Vicki Crawford claimed that her termination after she participated in a sexual harassment investigation constituted retaliation. The 6th Circuit disagreed, holding that participation in a purely internal, in-house investigation, in the absence of any pending EEOC charge, is not a protected activity. The Court reasoned that a contrary result would chill employers' investigations because they would not interview witnesses for fear of potential retaliation liability. Crawford, not surprisingly, is arguing the converse, that such protection is needed so that employees' willing participation in such investigations is not chilled. The EEOC, along with the 3rd, 5th, 8th, and 11th Circuits, disagree with the 6th Circuit's holding.

On first blush, it seems that the employee has the better of the argument. Employees already perceive that they can be fired if the company doesn't like what they have to say. It's hard enough as is to get employees to voluntarily cooperate, and assurances of no retaliation are usually necessary to get them to open up at all. A ruling for the employer in this case would make internal investigations all that much harder to conduct. To quote from the cert. petition:

Workers of ordinary prudence would be likely to avoid cooperating with a sexual harassment internal investigation if they knew they could be fired for doing so, certain as most will be that such cooperation will anger the alleged harasser, who usually is a supervisor and who all too often is the witness's own supervisor. Employees would have a disincentive to cooperate, if their participation in internal investigations is not protected. Placing a voluntary witness into this kind of legal limbo would impede remedial mechanisms by denying interested parties' access to the unchilled testimony of witnesses. (internal quotations and citations omitted).

Meacham v. Knolls Atomic Power Laboratory asks whether an employee alleging disparate impact under the ADEA bears the burden of persuasion on the "reasonable factors other than age" defense. More on this case as we get closer to oral argument.

What else I'm reading this week #14

A few sports related articles to start off this week's round-up. Michael Moore at the Pennsylvania Employment Law Blog discusses the flak over Kelly Tilghman's comments about Tiger Woods, and how her employer diffused a potentially problematic situation. Meanwhile, John Phillips at The Word on Employment Law talks about Randy Moss's legal troubles and an employer's potential liability for hiring a known bad egg. Finally, The HR Capitalist looks at the flip side of the Randy Moss issue, and uses Terrell Owens crying jag to examine the issue of whether your "morale killer" has turned the corner. Being a Philadelphia native and an unapologetic Eagles fan, I'll spare everyone my rant on T.O.

The Manpower Employment Blawg looks at an issue that I've touched on once or twice in last several months - wage and hour class action lawsuits as a booming industry for the plaintiffs' bar. For my thoughts on this issue from back in September, see Use a wage and hour audit to proactively head off claims, and Wage and hour litigation hits the big time.

From the ABA Journal comes a fascinating story about new technology being developed by Microsoft that will enable employers remotely to monitor their workers' productivity, competence, and physical well-being. According to this article, wireless sensors will provide employers with workers' heart rates and stress level, and determine whether they are smiling or frowning, among other data.

The Labor and Employment Law Blog gives a good summary of some of the liability issues implicated by e-mail and voice mail.

Finally, the HR World Blog has an interesting piece on workplace race relations in light of what we saw unfold earlier this week in the Democratic Presidential campaign. You can read my thoughts from October on racial harassment claims in Racial harassment lawsuits on the rise.

FMLA does not protect employees who fail to certify absences

Treatment for substance abuse is a serious health condition covered by the FMLA. Unexcused absences from work are not. The distinction between these two categories made all the difference for Krzysztof Chalimoniuk, who was terminated by Interstate Brands Corporation for excessive absences. In Chalimoniuk v. Interstate Brands Corporation, decided last week, the 7th Circuit upheld the termination and affirmed the trial court's dismissal of Chalimoniuk's FMLA claim.

Chalimoniuk had been battling alcohol addiction for 15 years. On Friday, July 28, he stopped on his way home from work, bought a large amount of alcohol, and over the next three days drank so much he lost his memory of that weekend. He was scheduled to work at IBC the following Monday (July 31), Wednesday (August 2), and Thursday (August 3). On Saturday, July 29, in the midst of his binge, his wife realized he had relapsed and called Fairbanks Hospital to see if she could bring her husband in for treatment. On Tuesday, August 1, Chalimoniuk called his physician's office but it was closed that day. On Wednesday, August 2, he called his doctor's office again, this time speaking to a nurse or receptionist who spoke to the doctor and referred Chalimoniuk to Fairbanks Hospital. On that same day, Chalimoniuk called Fairbanks Hospital and his insurance company to arrange his admission to the hospital. Because of a delay in obtaining insurance approval, Chalimoniuk was not admitted until August 4. He remained in the hospital until August 10. The FMLA certification completed by his doctor stated that he was in treatment from "7/29 - 8/11. Return 8/14."

Chalimoniuk's absences on July 31, August 2, and August 3 put him over the limit under IBC's attendance policy, unless they were covered by the FMLA. Because he did not start his inpatient treatment until August 4, IBC did not grant Chalimoniuk FMLA leave for his three missed work days, and terminated his employment under its attendance policy.

The regulations to the FMLA provide that substance abuse is a serious health condition only if the employee is receiving treatment, and not merely because of the employee's use of the substance:

Substance abuse may be a serious health condition if the conditions of this section are met. However, FMLA leave may only be taken for treatment for substance abuse by a health care provider or by a provider of health care services on referral by a health care provider. On the other hand, absence because of the employee’s use of the substance, rather than for treatment, does not qualify for FMLA leave. 29 C.F.R. 825.114(d).

Thus, under this regulation, Chalimoniuk was entitled to FMLA leave only for treatment for substance abuse. Because he was not in treatment until August 4, his three prior absences were not covered by the FMLA.

Chalimoniuk claimed that his medical certification was incomplete or invalid, creating a duty for IBC to alert him to the deficiency and allow him an opportunity to cure it. The FMLA regulations do impose such a duty on employers. "The employer shall advise an employee whenever the employer finds a certification incomplete, and provide the employee a reasonable opportunity to cure any such deficiency." 29 C.F.R. 825.305(d). IBC did not deny the FMLA leave not because the Certification was incomplete but because they believed it inaccurately overstated the time period that Chalimoniuk was in treatment. Moreover, even if the Certification was incomplete, it would have been impossible for Chalimoniuk to cure the deficiencies, because even he admitted that his treatment did not begin until August 4.

It would be an understatement to say that Chalimoniuk presented an at-risk termination, and it may strike some as unfair that IBC was allowed to terminate him purely because of an administrative delay in his being admitted for treatment. Chalimoniuk and his wife appear to have done everything right -- she called the hospital as soon as she found him drunk, they promptly tried to reach his doctor but could not, and got him admitted to hospital as quickly as their insurer would allow. Nevertheless, the FMLA does not protect him because his treatment did not begin until his actual admission for treatment. I suppose one could rationalize a result in which his treatment would be deemed to have started on the 29th when Chalimoniuk's wife made the call to the hospital, but that would strain the reality of his actual treatment. After all, even Chalimoniuk freely admitted that despite the dates on the Certification, he did not start treatment until he was admitted on August 4.

Most often, FMLA cases teach employers the importance of making sure that all their i's are dotted and t's are crossed. This case illustrates that the same is equally as important for employees, and that employers should consistently apply the FMLA's requirements to employees have failed to properly certify their absences.

Some lessons in handling departing employees and their files

ESPN is reporting that football program files have gone missing from the University of West Virginia office of former coach Rich Rodriguez, who left West Virginia for Michigan. From espn.com:

West Virginia University said Tuesday it will investigate the disappearance of player and football program files found to be missing from the former office of ex-Mountaineers coach Rich Rodriguez.

West Virginia University said Tuesday it will investigate the disappearance of player and football program files found to be missing from the former office of ex-Mountaineers coach Rich Rodriguez.

Paperwork detailing every player on West Virginia's roster, as well as the program's activities over the past seven years, went missing between Rodriguez's resignation as coach to take over at Michigan and the team's return from the Fiesta Bowl, the Charleston (W.Va.) Gazette reported....

After returning to work about a week ago, the staff at WVU's Puskar Center found that most of the files that had been stored in Rodriguez's office, as well as the players' strength and conditioning files in the weight room, were gone, the Gazette reported.

"It's unbelievable. Everything is gone, like it never existed," a source within the athletic department, who spoke on the condition of anonymity, told the Gazette. "Good, bad or indifferent, we don't have a record of anything that has happened." ...

According to the source, the missing files include all of the players' personal files, which encompass contact information, scholarship money awarded, class attendance records and personal conduct records, the Gazette reported....

According to the report, multiple sources said several people in the Puskar Center reported seeing Rodriguez and at least one of his assistants, video coordinator Dusty Rutledge, in Rodriguez's private office shredding paperwork on Dec. 18 -- the day he returned from Ann Arbor after being named Michigan's new head coach. Those who say they witnessed the action said they either paid it no mind or did not know what was being destroyed, according to the report....

West Virginia and Rodriguez are in the midst of a messy legal battle over his departure from Morgantown. The university is trying to recover $4 million from Rodriguez for leaving with six years remaining on his contract. Rodriguez, in turn, said West Virginia breached the contract by not fulfilling all of its terms of the deal.

If Coach Rodriguez took the files, I certainly hope that his attorney is advising him to return them. I couldn't imagine that Coach would try to leverage these valuable documents into a settlement of his other legal issues with the university.

Intrigue aside, Rich Rodriguez's plight is a good learning exercise for employers and employees. Unless there is an agreement that states otherwise, what an employee creates during his or her employment is the property of the employer. The employee is working for the benefit of the employer, and is being paid for it. Accordingly, the employer, and not the employee, owns the files and documents. Because it is the employer's property, the employee has no right to take the property with him or her at the end of employment. These issues are the same whether we are talking about paper or electronic files.

Some take away points for everyone:

• Make sure expectations are clear on the way in the door - handbooks, policy manuals, and employment agreements should clearly state that everything that is created during employment belongs to the company, and that it is expected to be left with the company at the end of employment.
• Supervisors and managers need to be trained so that they do not make any statements contradictory to the policy upon which an employee could claim reliance.
• As best as possible, monitor what employees take out of the company during their employment. Few jobs today are 9 - 5. More and more employees take work home, and some even telecommute. It becomes very difficult to keep tabs on where stuff is, and the more stuff taken out of the office or downloaded, the harder it will be to have it returned if an employee leaves. The good thing about e-mail and portable media is that at least they generally leave a trace that something was taken.
• Reinforce the policy during an exit interview by reminding the employee of the expectation that nothing will leave the company with him or her, and that everything must be returned immediately.
• When all else fails, a letter from a lawyer to a former employee and the new employer goes a long way to getting the documents returned.

6th Circuit affirms maternal profiling verdict

I've been writing lately about maternal profiling, which is employment discrimination against a woman who has, or will have, children. Last week, the 6th Circuit, in Lulaj v. The Wackenhut Corporation, provides us a good example of this type of stereotyping in action.

Lisa Lulaj worked at Chrysler as a fire security officer, first as a Chrysler employee and then as an employee of Wackenhut Corporation after Chrysler outsourced its security operations. Lulaj accepted the transition to Wackenhut solely because she was promised a promotion to a supervisor position. Shortly after the transition, Lulaj filled out forms notifying Wackenhut that she was pregnant and would need a larger uniform. Within a month, her immediate supervisor offered her a lesser promotion than she was originally promised, looking at her stomach and telling her, "You should consider this position considering your position." Within a month, Lulaj went out on maternity leave. When Wackenhut refused to promote her to the originally promised supervisor position at the end of her leave, she decided not to return to work. She sued to pregnancy discrimination under Michigan law, and the jury awarded her a total of $200,000, to which the judge added $49,500 in attorney's fees. The trial judge also took away $142,168 in lost wages because the jury found that Lulaj had voluntarily quit and had not been constructively discharged.

The 6th Circuit rejected Wackenhut's argument that there was no nexus between Lulaj's pregnancy and the promotion decision. The the contrary, the court considered three pieces of evidence critical to its decision that Lulaj was discriminated against:

1. Company managers were aware of her pregnancy long before she officially informed them.
2. The timing of the events suggests discrimination.
3. The way her superior glanced at her stomach suggested that pregnancy was a factor in denying the promotion.

This case is a good example of how maternal profiling can cause a bad result for an employer. At the same time, however, it sets a potentially dangerous precedent by allowing a discrimination claim to stand based in large part on subjective interpretations of glances and stares.

Congress expected to revisit expanded FMLA leave for military families

This morning's New York Times is reporting that Congress is expected to quickly revisit the National Defense Authorization Act that President Bush vetoed at the end of last year. The House and Senate overwhelmingly passed the legislation, which would, among many other things, amend the FMLA and provide up to 6 months of leave to family members (i.e., spouse, son, daughter, or parent) of combat-injured service members to care for their loved ones. The President vetoed it out of a concern that a provision in the bill could lead to legal claims by victims of Saddam Hussein's government against Iraqi assets held in U.S. banks. The Times quotes Congressional aides, who say that Congress will likely send the bill back to the Armed Services Committee, where the disputed provision can quickly be corrected. Congress hopes to have the measure brought back for a final vote by the end of the week. These issues should not affect the FMLA amendments in the bill, and with the amendments, President Bush is expected to sign it.

Supreme Court dismisses Huber v. Wal-Mart from its docket

After more than a decade practicing, it still amazes me how fluid the law actually is. Rarely anything is black or white, and most issues exist in uncertain shades of gray. Such will continue to be the case with Huber v. Wal-Mart. Recall that only a month ago, the Supreme Court decided to hear the issue of whether an employer that has an established policy to fill vacant job positions with the most qualified applicant is nevertheless required to reassign a qualified disabled employee to a vacant position even if that disabled employee is not the most qualified person for the job. According to SCOTUSblog, the Supreme Court has dismissed the case as it has settled.

With no forthcoming guidance from the Supreme Court on this issue, Ohio employers will now have to choose between the 8th Circuit's view in the Huber case (which allowed Wal-Mart to hire to most qualified person and deny the open position to a less qualified disabled employee) and the opposing view of courts such as the 10th Circuit (which require employers to automatically award an open position to a qualified disabled employee if even better qualified applicant are available and despite an policy to hire the best person for the job).

My opinion remains unchanged from when I first reported on this issue. When you don't hire the best person for an open position, it could lead a court to second-guess your judgment and question why a member of a protected class was overlooked in favor of the second/third/fourth/whatever best person. Recognize, however, that this issue is unsettled, and declining to accommodate a disabled employee by transferring that employee to an open position could result in a violation of the ADA if the court agrees with the 10th Circuit's rationale and rejects the 8th Circuit's Huber decision.

Will the Supreme Court review FMLA waivers?

SCOTUS Blog is reporting that the Supreme Court has asked the U.S. Solicitor General for the government's position on whether workers may settle claims under the Family and Medical Leave Act without approval by the Department of Labor or a court. By all appearances, the Court is seriously considering whether to grant cert. in Taylor v. Progress Energy, and resolve the current conflict between the 4th and 5th circuit on this issue. For my thoughts on this issue, click over to FMLA waivers pose a potential trap.

The Golden Rule of employment relations

John Phillips at The Word on Employment Law has a great post up this morning on the crucial role fairness plays in employment relations. John opines (and I wholeheartedly agree) that juries in employment lawsuits often discuss "fairness." In other words, all law aside, did the employer treat the employee fairly? John focuses on 5 key areas of fairness that employers must pass for any employment decision to survive scrutiny:

• Appearance: does an employment action appear fair to an outside observer?
• Counseling: except in the most egregious of cases, was the employee told of a deficiency and given a chance to correct it?
• Consistency: are similar disciplinary problems handled similarly and to the same degree?
• Documentation: can you point to a performance review, written warning, a note in a personnel file, or some other contemporaneous piece of paper that supports the personnel decision?
• Rationale: was the employee given a reason for the decision, and was it the real reason?

These 5 areas of fairness can be succinctly summed up in what I call The Golden Rule of Employment Law. If you treat your employees as you would want to treated (or as you would want your wife, kids, parents, etc. to be treated), most employment cases would never be filed, and most that are filed would end in the employer's favor. I've said this before, but it bears repeating. Juries are comprised of many more employees than employers, and if jurors feel that the plaintiff was treated the same way the jurors would want to be treated, the jury will be much less likely to find in the employee's favor.

Just say no -- Dealing crack is gainful employment, according to the Ohio Supreme Court

Every once in a while you come across a case that just makes you shake your head in disbelief. State ex re. Lynch v. Indus. Comm. is such a case.

In 1967, Henry Lynch suffered an injury at work, from which he was declared permanently and totally disabled and received a commensurate workers' compensation award. Thirty years later, a federal grand jury indicted Lynch for possession, sale, and distribution of crack cocaine, to which he pleaded guilty. It was alleged that from 1994 through 1997, he earned between $300 to $500 a week from selling crack. After he was incarcerated, the Bureau of Workers' Compensation moved to terminate Lynch's permanent total disability compensation. The commission found that Lynch's "criminal activities for profit ... constitute[d] sustained remunerative employment," and terminated his benefits retroactive to the date the federal indictment alleged he began selling crack.

The Ohio Supreme Court upheld that decision, holding that Lynch's ongoing crack-cocaine enterprise constituted sustained remunerative employment sufficient to terminate permanent total disability compensation. In the Court's words:

Lynch also claims that the commission cannot consider the activity he engaged in to be sustained remunerative employment, because the activity was illegal. We disagree. Lynch cannot use the illegality of his pursuits as a shield. Lynch exchanged labor for pay on a sustained basis. This constitutes sustained remunerative employment for purposes of permanent total disability.

So here are the questions of the day: If Lynch has 4 dealers working for him, does he have to abide by Ohio's employment discrimination laws? If he has 50 dealers working for him, does he have to grant them FMLA leave? Are his dealers eligible for workers' comp if they are injured on the job?

[Hat tip to the Evil HR Lady.]