Thursday, April 1, 2010

DOL: “We can help.” Employers: “Don’t do us any favors.”


I just received the following email from the Department of Labor:

Today, the Secretary of Labor and the Deputy Administrator of the Wage and Hour Division officially launched a national public awareness campaign called “We Can Help.” This public awareness effort is intended to provide workers with information about their rights in the workplace and to educate them on how to seek the assistance of the Wage and Hour Division when they believe that they have been the subject of a violation.

The campaign includes a launch of a new Web site at http://www.dol.gov/wecanhelp.

It is telling that the most prominent part of this website is a section entitled, “How to File a Complaint.” While it has now been fixed, the website initially identified itself as the “Wage and Hour Devision.” We litigators call that an admission against interest.


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.

NJ Supreme Court hampers corporate email surveillance


Employers generally think that they own and control all data that passes through their computer networks, whether work-related or personal to an employee. Earlier this week, in Stengart v. Loving Care Agency [pdf], the New Jersey Supreme Court issued a landmark decision that should concern all businesses, and could greatly inhibit employers’ ability to monitor how employees use workplace technology for personal reasons.

Consider the following facts. You issue a manager a company-owned laptop. The employee – who is not technologically savvy – does not realize that the Internet browser automatically saves on the hard drive a copy of each web page viewed. During her employment, the employee uses the computer to contact her attorney using her personal, web-based, password protected Yahoo email account. She did not save her private login or password on the computer. After she quit and returned the laptop, she sues for discrimination. You are able to extract, via a computer forensic expert, the emails she sent to her attorney. When you turn over in discovery copies of those emails, it hits the fan.

You rely on the following Electronic Communication Policy for your belief that the employee had relinquished any expectation of privacy over the personal emails stored on the company-owned computer:

The company reserves and will exercise the right to review, audit, intercept, access, and disclose all matters on the company’s media systems and services at any time, with or without notice.…

Email and voice mail messages, internet use and communication and computer files are considered part of the company’s business and client records. Such communications are not to be considered private or personal to any individual employee.

The principal purpose of electronic mail (email) is for company business communications. Occasional personal use is permitted; however, the system should not be used to solicit for outside business ventures, charitable organizations, or for any political or religious purpose, unless authorized by the Director of Human Resources.

The Policy also specifically prohibits “certain uses of the email system” including sending inappropriate sexual, discriminatory, or harassing messages, chain letters, “[m]essages in violation of government laws,” or messages relating to job searches, business activities unrelated to the employment, or political activities. The Policy concludes with the following warning: “Abuse of the electronic communications system may result in disciplinary action up to and including separation of employment.”

The court in Stengart held that the employee had a reasonable expectation of privacy in the personal, password-protected, web-based email account accessed on the company-owned computer.

  • The employee subjectively expected the emails to be private because she used a personal, password-protected email account instead of her company email address, and did not store the account’s password on the computer.

  • The expectation of privacy was also objectively reasonable, because the Policy does not address the use of personal, web-based email accounts, and does not warn employees that the contents of emails sent via personal accounts can be forensically retrieved and read by the company. Moreover, by permitting occasional personal use, the Policy created doubt over who owns the emails.

The following language – which suggests that regardless of the policy language used, the ability of employers to peer into employees’ private, web-based email is severely restricted – is probably the most important part of the opinion for employers.

The Policy did not give Stengart, or a reasonable person in her position, cause to anticipate that Loving Care would be peering over her shoulder as she opened emails from her lawyer on her personal, password-protected Yahoo account….

[This] does not mean that employers cannot monitor or regulate the use of workplace computers. Companies can adopt lawful policies relating to computer use to protect the assets, reputation, and productivity of a business and to ensure compliance with legitimate corporate policies. And employers can enforce such policies. They may discipline employees and, when appropriate, terminate them, for violating proper workplace rules that are not inconsistent with a clear mandate of public policy…. For example, an employee who spends long stretches of the workday getting personal, confidential legal advice from a private lawyer may be disciplined for violating a policy permitting only occasional personal use of the Internet. But employers have no need or basis to read the specific contents of personal, privileged, attorney-client communications in order to enforce corporate policy. Because of the important public policy concerns underlying the attorney-client privilege, even a more clearly written company manual – that is, a policy that banned all personal computer use and provided unambiguous notice that an employer could retrieve and read an employee’s attorney client communications, if accessed on a personal, password protected email account using the company’s computer system – would not be enforceable.

On Monday, I’ll be back with my thoughts on the lessons of this case and how to incorporate them into your Electronic Communications Policy.


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.

Wednesday, March 31, 2010

Department of Labor issues game-changing guidance on the administrative exemption and loan officers


In February, I discussed the application of the Fair Labor Standards Act’s administrative exemption, and made the point that whether an administrative employee is administratively exempt is determined on an employee-by-employee basis. Despite this fact-specific analysis, mortgage loan officers comprised one category of administrative professionals that the Department of Labor has historically found to be covered by the administrative exemption. Last week, however, the DOL issued a game-changing opinion (Administrator’s Interpretation No. 2010-1), in which it concluded that “employees who perform the typical job duties of a mortgage loan officer do not qualify” as exempt administrative employees:

A careful examination of the law as applied to the mortgage loan officers’ duties demonstrates that their primary duty is making sales and, therefore, mortgage loan officers perform the production work [as opposed to administrative work] of their employers.

This pronouncement important for three reasons:

  1. This Interpretation is a stark departure from conventional wisdom, and will likely cause an upheaval in how lenders pay their loan officers.

  2. The DOL has discontinued issuing detailed Opinion Letters in response to specific inquiries from the public. Instead, the Administrator of the Wage & Hour Division will issue formal Administrator Interpretations that are intended to give across-the-board interpretations of general wage and hour issues. If this first Interpretation is any indication, the Administrator will focus on areas of the law that are the most confusing or frequently litigated. These Administrator Interpretations, though, should carry the same import as the former Opinion Letters.

  3. The Department of Labor has swung with the political winds. Even before January 20, 2009, wage and hour was a minefield for employers, but at least you could usually see where the mines were. Now, they are all hidden, waiting for even the most diligent of employers to detonate one. 

Many of my blogging compatriots have shared their own thoughts on this issue:


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.

Tuesday, March 30, 2010

Do you know? Healthcare bill requires lactation breaks


This morning I’m updating and synergizing two of last week’s posts: Do we really need to pump up workplace lactation rights? and House passes Health Care Bill – What does this mean for employers?

Section 4207 [pdf] (on page 1217) adds a new provision to the Fair Labor Standards Act, which will require employers to provide reasonable unpaid breaks for nursing mothers. Specifically:

  • Unpaid breaks must be provided each time a lactating employee needs to express breast milk for up to 1 year after the child’s birth.

  • The employer must provide the employee with a place that is shielded from view and free from intrusion from coworkers and the public other than a bathroom.

  • These requirements are mandatory for employers with 50 or more employees.

  • Employers with less than 50 employees are exempt upon a showing that the requirements impose an undue hardship by causing the employer significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s business.

Because federal law now requires most employers to provide lactation breaks, it’s clear that we do not need a state law raising lactation to a protected class.


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.

Monday, March 29, 2010

Bill seeks to snuff out discrimination against smokers


Take a look at H.B. 470, introduced last week in Ohio’s legislature. It provides: “No employer shall discharge without just cause, refuse to hire, or otherwise discriminate against any person with respect to hire, tenure, terms, conditions, or privileges of employment, or any matter directly or indirectly related to employment, on the basis that the person smokes tobacco.” In other words, it would make “smoking” a protected class, akin to race, sex, disability, etc. The law would protect an employer’s right to adopt and enforce rules prohibiting employees from smoking tobacco, or smelling like tobacco smoke, during the work hours.

As is the case with most anti-discrimination laws, this bill provides for the right to file a lawsuit and recover damages for violations. But, here’s where this bill gets really silly. In addition to civil damages, it also provides for escalating fines of $25,000 for the first offense, $50,000 for the second, and $100,000 for each thereafter.

This law would not be an anomaly. In fact, 29 states plus the District of Columbia have laws that elevate smoking to a protected class. The fact that a majority of states protect smokers as a protected class merely begs the question of whether these laws make good policy.

Compensation Today offers three reasons against a blanket ban on the employment of smokers, and a suggested best-practice:

    1. Like any policy that regulates off-duty conduct, it is difficult to enforce. (Do you really want to run around sniffing your employees for telltale signs of smoking, as they walk in the door each morning?)
    2. You may find that the employee smoking policy limits your pool of qualified job applicants, especially among certain age groups, crafts, or professions.
    3. Even nonsmokers sometimes resent these policies, on principle, as unwarranted intrusions into employee private affairs.

A better approach is to design a workplace smoking policy that regulates smoking in a manner that fits your legitimate business needs. Typically, this approach addresses how to deal with employee smoke breaks more effectively, and involves the discipline of those who abuse break time. And, if you cannot make health insurance distinctions, consider including smoking cessation programs in any health and wellness initiatives you sponsor.

While this proposed middle ground seems reasonable, employers should be free to control health care costs by enacting policies against self-inflicted harm, even if it may single out a class of employees. This situation is different than employers that use high medical costs as a proxy for disability discrimination. While smoking may be an addiction, it is one that started by a personal choice. We do not need to legislate against employment decisions based on a legitimate reason (high health care costs) that do not implicate a congenital characteristic.


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.

Sunday, March 28, 2010

Updated – Breaking News: Obama makes recess appointment of Craig Becker to the NLRB


A few weeks ago I asked, “Who is Craig Becker and why should you care?” It looks like we are all about to find out. President Obama has made Mr. Becker a recess appointment to the NLRB, along with another Democratic nominee. The lone Republican nominee has been left on the sidelines.

For more coverage of this important story, I recommend the following, all who have coverage:

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.

Friday, March 26, 2010

WIRTW #120


Last July, I reported on Kasten v. Saint-Gobain Plastics, in which the 7th Circuit held that the anti-retaliation provision of the Fair Labor Standards Act does not cover unwritten, verbal wage and hour complaints. At the time, I said:

Employers should not get overly excited about this decision. The 7th Circuit’s holding in Kasten appears to be the minority view. Indeed, the 6th Circuit [has] found that an employee’s oral complaints to a supervisor were protected. Employers act at their own peril if they fire employees who make oral wage and hour internal complaints.

This week, the Supreme Court agreed to review the Kasten decision. Some time next year we’ll get the final say on whether the FLSA covers oral complaints. In the meantime, here’s what my fellow bloggers have to say about this important development:

The other big story of the week – also at the Supreme Court – was the oral argument in New Process Steel v. NLRB, which will decide the legality of decisions rendered over the last couple of years by a two-member NLRB. The following blogs have this issue covered from every angle:

In other developments this week…

Social Media

Labor Relations

Harassment & Investigations

EEO & Discrimination

HR Stuff


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.

Thursday, March 25, 2010

A little courtesy goes a long way


disabilityplacards On Sunday I drove my in-laws down to Columbus for Ohio State’s graduation. Upon arriving at the Schottenstein Center, stopped to ask a traffic-directing cop if I could turn in for disabled parking. He asked to see the handicapped placard, which my father-in-law showed him. The cop followed with the following, in the most patronizing and condescending voice possible: “Do you see that little hole at the top? That’s so you can hang it from your mirror so I can see it and don’t have to ask you for it.” That’s 25 more words than it would have taken him to simply say, “Thank you sir. Turn here.”

There is a lesson to be learned from this little parable. It often takes a lot more effort to be an ass than it does to be nice. The next time you feel bothered by something an innocently-intentioned employee says or does, think of this story. And then think of which response will more likely result in resentment and division, emotions that lead employees to sue or form unions. And then rethink your response.


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.

Wednesday, March 24, 2010

Ohio Supreme Court (finally) upholds the constitutionality of a workplace intentional tort statute


In two anticipated opinions, the Ohio Supreme Court has finally found an intentional tort statute that passes muster under Ohio’s constitution. The opinions – Stetter v. R.J. Corman Derailment Servs. and Kaminski v. Metal & Wire Prods. Co. – confirm the constitutionality of R.C. 2745.01. This statute provides:

(A) In an action brought against an employer by an employee, or by the dependent survivors of a deceased employee, for damages resulting from an intentional tort committed by the employer during the course of employment, the employer shall not be liable unless the plaintiff proves that the employer committed the tortious act with the intent to injure another or with the belief that the injury was substantially certain to occur.

(B) As used in this section, “substantially certain” means that an employer acts with deliberate intent to cause an employee to suffer an injury, a disease, a condition, or death.

(C) Deliberate removal by an employer of an equipment safety guard or deliberate misrepresentation of a toxic or hazardous substance creates a rebuttable presumption that the removal or misrepresentation was committed with intent to injure another if an injury or an occupational disease or condition occurs as a direct result.

To understand the importance to Ohio’s businesses of these decisions and the statute they uphold, we first need to take a little trip back in time to see where we’ve been. Workers’ compensation generally provides employers with immunity from civil lawsuits for workplace injuries. A limited exception exists for what is known as an “intentional tort.” The Ohio Supreme Court first recognized this exception in 1982 in Blankenship v. Cincinnati Milacron Chems., Inc. Supreme Court developed this theory over the years in in cases such as Jones v. VIP Dev. Co., Van Fossen v. Babock & Wilcox Co., and Fyffe v. Jeno’s, Inc.

Under these prior cases, to establish the requisite “intent” for a workplace intentional tort, one would have to show:

  1. knowledge by the employer of the existence of a dangerous process, procedure, instrumentality or condition within its business operation;
  2. knowledge by the employer that if the employee is subjected by his employment to such dangerous process, procedure, instrumentality or condition, then harm to the employee will be a substantial certainty; and
  3. that the employer, under such circumstances, and with such knowledge, did act to require the employee to continue to perform the dangerous task.

As the Fyffe court further explained:

To establish an intentional tort of an employer, proof beyond that required to prove negligence and beyond that to prove recklessness must be established. Where the employer acts despite his knowledge of some risk, his conduct may be negligence. As the probability increases that particular consequences may follow, then the employer’s conduct may be characterized as recklessness. As the probability that the consequences will follow further increases, and the employer knows that injuries to employees are certain or substantially certain to result from the process, procedure or condition and he still proceeds, he is treated by the law as if he had in fact desired to produce the result. However, the mere knowledge and appreciation of a risk – something short of substantial certainty – is not intent.

On at least two occasions after Fyffe, the Ohio Supreme Court struck down as unconstitutional statutes that attempted to tighten the Van Fossen/Fyffe common law rules for workplace intentional torts. Thus, until the enactment in 2005 of the current R.C. 2745.01, courts often liberally applied the the Van Fossen and Fyffe decisions to remove a variety of workplace accidents and injuries from the workers’ compensation system and hold employers liable in tort.

This week’s decisions in Stetter and Kaminski upholding R.C. 2745.01 as constitutional are huge victories for employers. Van Fossen and Fyffe’s fuzzy “substantial certainty” standard, which courts liberally applied to the detriment of many employers, has been conclusively replaced with a much tighter statute. Now, all workplace injuries are covered by the workers’ compensation system unless the employer deliberately intended to injure the employee. The Ohio Supreme Court has reaffirmed that workers’ compensation really is supposed to be an employee’s exclusive remedy for workplace injuries in all but the most egregious of cases.


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.

Tuesday, March 23, 2010

Do we really need to pump up workplace lactation rights?


Philly.com ran a story last week by Philadelphia attorney Beth Thorne, who recounted her lack of privacy at work to express breast milk. Ohio, like Pennsylvania, is in the majority of states that do not have a law that requires employers to accommodate lactating moms. Some Ohio legislators want to change this omission.

A bill has been drafted – but not yet introduced – that would amend Ohio’s discrimination statute to include “lactation” as a protected class. This law would expand the prohibition against discrimination because of or on the basis of sex to include discrimination because of or on the basis of lactation. It would also require employers to provide lactating employees “reasonable, unpaid time each day” for the expression of breast milk, and further require employers to make a reasonable effort to provide a sanitary room or area (other than a toilet stall) for this purpose.

While this law is noble in purpose, I question whether it is needed in the first place.

  • Ohio’s law against sex discrimination likely already covers lactation. In Allen v. totes/Isotoner Corp., two of the most conservative justices of the Ohio Supreme Court concurred that lactation is covered by Ohio’s proscriptions against employment discrimination on the basis of sex/pregnancy. While the majority dodged this issue, the Court gave clear direction of how it rule if the issue arose again. We should not be in the business of unnecessarily amending laws.

  • Is this really a problem that needs to be fixed? Are lactating employees really being denied the opportunity to pump? The empirical evidence would suggest that the answer is no. In my 13 year career I’ve never come across the issue. LEXIS reveals scant few cases on this topic, even in jurisdictions that have workplace lactation laws. So, if this is not a problem that needs correction, what reasons – other than placating certain special interests – call for the passage of workplace lactation legislation?


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.

Monday, March 22, 2010

House passes Health Care Bill – What does this mean for employers?


I have not read any version of the health care bill. In fact, anyone outside of Capitol Hill, the White House, lobbyists, or some major news agencies who tells you otherwise is probably lying to you. So, I don’t have a lot to say about this legislation. In fact, I’m not embarrassed to say that I have not yet formed an opinion pro or con about it. What is embarrassing is the partisan politics that this issue has created. No one can honestly say that they are in favor of the bill because they are blue or against it because they are red. They are dishonest opinions based solely on party lines.

So, what can I tell you about this legislation? Employers are not required to provide health insurance to their employees. Instead, employers with 50 or more employees who do not provide health insurance will be fined $2,000 per employee. Employers smaller than 50 employees likely will not feel much of an effect from these changes.

For more on this important issue, I recommend reading Dan Schwartz’s post at the Connecticut Employment Law Blog.


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.

Friday, March 19, 2010

WIRTW #119


The best advice of the week comes from BLR’s HR Daily Advisors, which recommends that companies could save thousands by merely spending a few minutes with their employment lawyer. Here’s the rest of the best I read this week.

Big Verdicts

Discrimination

Labor Law

Wage & Hour

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.

Thursday, March 18, 2010

70% of hiring managers report rejecting candidates following internet searches


According to a recent survey conducted by Microsoft, 70% of U.S. hiring managers reject candidates based on information located online, while only 7% of consumers think that online information affected their job search. 2512148775_61fa58b4b3_m

The following are the most two most interesting findings from the study:

Do you review online reputational information about candidates when evaluating them for a potential job / college admission?

  • All the time – 44%
  • Most of the time – 35%
  • Sometimes – 9%
  • Rarely – 5%
  • Never – 6%

What are the types of online reputational information that influenced decisions to reject a candidate?

  • Concerns about the candidate’s lifestyle – 58%
  • Inappropriate comments and text written by the candidate – 56%
  • Unsuitable photos , videos, and information – 55%
  • Inappropriate comments or text written by friends and relatives – 43%
  • Comments criticizing previous employers, co-workers, or clients – 40%
  • Inappropriate comments or text written by colleagues – 40%
  • Membership in certain groups and networks – 35%
  • Discovered that information the candidate shared was false – 30%
  • Poor communication skills displayed online – 27%
  • Concern about the candidate’s financial background – 16%

And yet, nearly 90% of recruiters and HR professionals surveyed report that they are somewhat to very concerned that the online reputational information they discover may be inaccurate. If you want to review the complete findings, Microsoft has made available a summary as a PDF, and its full research results as a PowerPoint.

What does all of this mean? Here’s what I’ve said previously on this issue:

There is a justified fear that a lot of the information on the internet is unreliable and unverifiable. I have another problem with HR departments willy-nilly performing internet searches on job applicants – the risk that such a search will disclose protected information such as age, sex, race, or medical information.

For more on developing a DIY internet background screening strategy for your company, see Googling job applicants. You can also check out what the Delaware Employment Law Blog has to say on this issue.


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.

Wednesday, March 17, 2010

Whose opinion counts for determining “incapacity” under the FMLA?


The FMLA defines serious health condition as “an illness, injury, impairment, or physical or mental condition that involves … continuing treatment by a health care provider.” The FMLA’s regulations define “incapacity” as the “inability to work, attend school or perform other regular daily activities due to the serious health condition, treatment therefore, or recovery therefrom.” The regulations further define a “serious health condition involving continuing treatment by a health care provider” as requiring a “period of incapacity of more than three consecutive, full calendar days.

How does an employee establish incapacity for three or more days? Is an employer required to take the employee and his or her word, or can the employer require the employee to support the claim of incapacity with medical evidence? Courts take three approaches.

Some courts hold that an employee’s own statements, without any medical support whatsoever, are sufficient to establish incapacitation to support a claim for FMLA leave. One court, for example, even allowed an FMLA claim to proceed when an employee’s statements about his health directly contradicted his doctor’s note, which permitted him to return to work without restrictions.

Other courts, including Schaar v. Lehigh Valley Health Services, Inc., a recent case from the Third Circuit, hold that an employee can support a claim of incapacity for FMLA-leave purposes with a combination of the employee’s own statements in combination with documentation from a health care provider. In the Schaar case, for example, the employee supported her claim for an FMLA entitlement with a doctor’s note, which said that she was incapacitated for two days, along with her own statements that she was incapacitated for another two days.

Both of these views give employees a tremendous amount of latitude to game the system by claiming FMLA-leave that may not be medically supported. Luckily for Ohio employers, Ohio’s district courts subscribe to the most restrictive view, that an employee can establish that he or she was required to be absent from work only upon the production of “evidence showing that a health care provider made a professional assessment of his condition and determined, based on that assessment, that an extended absence from work was necessary.”

Regardless of the legal standard employed in determining whether an employee is “incapacitated” and therefore eligible for FMLA leave, your best defense against potential liability is to use the FMLA’s medical certification process to verify the employee’s qualification for the statutory leave.

And, on a totally unrelated topic, in honor of St. Patty’s day here’s a very cool picture I took of O’Neill’s Pub in Dublin.

ry%3D400 (1)  


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.

Tuesday, March 16, 2010

Do you know? 12% of employees knowingly violate IT policies


According to a recent survey conducted by IT security company Fiberlink (H/T Workplace Diva), 12% of employees admit to knowingly violating IT policies. What types of violations might be occurring?

  • Inappropriate or excessive use (YouTube, shopping, gaming, pornography).
  • Misappropriation of confidential information.
  • Harassment of co-workers or others.
  • Moonlighting (e.g., checking Mary Kay sales).

I think the 12% number is light. I would bet that it’s closer to one-quarter to one-third of employees that misuse their employers’ technology. What can you do to best protect yourself. Let me suggest a seven-point plan.

  1. Audit your internet and email systems. Take stock of how much time employees spend on-line, what types of sites are being visited, and the breakdown of personal use versus work use. Once you get a handle on how your systems are being used, you can figure out what type of policy you want for your workplace, and how restrictive it needs to be.

  2. Draft and implement a Technology Policy. It should cover computers, email, social networking, and mobile devices. For more on how to draft this type of policy, see Do you know? 10 tips for drafting a workplace electronic communications policy.

  3. Cross-reference the Technology Policy in your Harassment Policy and training, and in any confidentiality policies, business ethics policies, and non-competition agreements.

  4. Require all employees to sign an acknowledgement that they received the policy, read it, had the opportunity to ask any questions about it, and understand it.

  5. Train all employees on the ins and outs of the policy, including what you consider inappropriate use of the internet and email, and that violations will lead to discipline or termination.

  6. Apply and enforce the policy fairly, consistently, and non-discriminatorily.

  7. At least annually, review and if necessary revise policies to keep them legally up-to-date.


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.

Monday, March 15, 2010

Beware these types of problem employees


Today is the Ides of March. For Julius Caesar, it meant a knife in the back from his best friend. Yet, Caesar had been warned to beware the Ides. I, too, provide the following warning. Beware these archetypes of problem employees in your organization:

  • The chronically absent employee.
  • The chronically late employee.
  • The chronically ill employee.
  • The insubordinate employee.
  • The complaining employee.
  • The bullying or harassing employee.
  • The substance abusing employee.
  • The thieving employee.
  • The disloyal employee.
  • The unhappy employee.

Each of these employees comes bearing a knife in the form of a potential lawsuit. At the same time, each is also loaded with legal landmines. For example, the absent or late employee may have an underlying medical issue causing their attendance issues. The harassing employee will put in a motion a chain of events under your harassment policy. The first step, though, in dealing with these issues is to recognize that they are issues at all.


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.

Friday, March 12, 2010

WIRTW #118


The big story that I missed this week is the refocused Congressional attention on the passage of the Paycheck Fairness Act on Capitol Hill. This law would make the following key changes to pay discrimination law:

  1. Prohibits an employers from retaliating against employees for discussing wage information.
  2. Permits uncapped punitive and compensatory damages for Equal Pay Act claims.
  3. Requires employers to show “a bona fide factor other than sex, such as education, training, or experience” to establish a defense to a EPA claim (a much more difficult standard than the current “any factor other than sex” standard).
  4. Changes classes in EPA class actions from “opt in” to “opt out.”

Take a look at the following posts from my fellow blawgers to catch up on what is happening with this important piece of legislation on the Hill:

Here’s the rest of the best I read this week:

Wage & Hour

Labor Relations

Harassment

Other Discrimination

Technology


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.

Thursday, March 11, 2010

Playing 20 questions with the employee versus contractor distinction


As reported by the Washington DC Employment Law Update, the Treasury Department and Department of Labor have been jointly charged to eliminate legal incentives for employers to misclassify employees as independent contractors, and investigate potential misclassifications. Misclassifications carry potentially severe penalties. For example, employees are subject to wage and hour laws, and must have payroll taxes paid on their behalf. Contractors, on the other hand, do not have to paid minimum wage or overtime, and can be 1099’ed.

How do you know if you are misclassifying employees as contractors? Consider these 20 questions, none of which are dispositive, but each of which is an important part of the calculus. The more yes answers you have, the more likely the worker is an employee.

  1. twentyqIs the worker required to comply with others’ instructions about when, where, and how to perform the work?

  2. Is training part of the work experience?

  3. Are the worker’s services Integrated into the business operations?

  4. Do the services have to be rendered by the specific worker charged with the task?

  5. Does the person or entity for whom the services are performed hire, supervise, and pay assistants?

  6. Is there a continuing relationship between the worker and the person or entity for whom the services are performed?

  7. Is the work on a full-time basis?

  8. Is a regular and consistent schedule required?

  9. Is the work performed on the premises of the person or entity for whom the services are performed?

  10. Does the worker have to perform services in the order or sequence set by the person or entity for whom the services are performed?

  11. Is the worker required to submit regular or written reports to the person or entity for whom the services are performed?

  12. Is the worker paid on a set schedule, whether by the hour, week, or month?

  13. Does the person or entity for whom the services are performed ordinarily pay the worker’s business and/or traveling expenses?

  14. Does the person or entity for whom the services are performed furnish tools, materials, and other equipment?

  15. Does the worker rely upon the person or entity for whom the services are performed to provide facilities for the work?

  16. Is the worker’s base compensation unrelated to his or her performance or the performance of the enterprise?

  17. Does the worker only provide services to one person or entity at a time?

  18. Does the worker refrain from making his or her services available to the general public on a regular and consistent basis?

  19. Does the person or entity for whom the services are performed retain the right to discharge a worker?

  20. Does the worker retain the right to end his or her relationship with the person or entity for whom the services are performed at any time without incurring liability?


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.

Wednesday, March 10, 2010

Who is Craig Becker and why should you care?


Craig Becker is President Obama’s nominee to the National Labor Relations Board. He is also the Associate General Counsel of the Service Employees International Union, the country’s fastest growing labor union. SEIU President Andy Stern is one of the most outspoken proponents of the Employee Free Choice Act.

Prior to being the SIEU’s in-house lawyer, Mr. Becker was a law professor at UCLA. During his academic life, he authored a 1993 article in the Minnesota Law Review, in which he argued:

  • Traditional notions of democracy should not apply in union elections.

  • Employers should be allowed to challenge union elections, even with evidence of union misconduct.

  • Employers should be prohibited from placing observers at the polls to challenge ballots.

  • Employer captive audience meetings should be grounds for overturning elections, and must grant unions equal access to company property.

It is unclear which of these ideas – including the EFCA for which the SEIU so strongly advocates – Mr. Becker things he could accomplish by administrative fiat as a member of the NLRB.

On February 9, Senate Republicans successfully filibustered Mr. Becker’s nomination, effectively blocking his appointment. In the words of Senate Republican Ben Nelson:

Mr. Becker’s previous statements strongly indicate that he would take an aggressive personal agenda to the NLRB and that he would pursue a personal agenda there, rather than that of the administration. This is of great concern, considering that the board’s main responsibility is to resolve labor disputes with an even and impartial hand.

Now word has come that President Obama may make Mr. Becker a recess appointment to fill the three-year-old vacancy on the NLRB. This news comes on the heals of Vice President Biden’s comments to the AFL-CIO that the administration will “get [the EFCA] done.”

All of these developments should be sobering to businesses. And, the fact remains that statistics show that labor unions don’t need the help. According to recent NLRB data [pdf], labor unions win-rates in secret ballot elections is at its highest level in decades, at 66%. If Mr. Becker is appointed to the NLRB, expect his number to increase dramatically.

What can you legally do to prepare for the wave of union organizing that is on the horizon? Consider that according to the AFL-CIO Union Handbook for Organizers, the following 6 factors are likely to lower the chance of a successful organizing campaign:

  1. A belief by employees that the boss is not taking advantage of them.

  2. Employees who have pride in their work.

  3. Good performance records kept by the employer, which reinforces the recognition and appreciation of employees’ efforts and their feelings of job security.

  4. No claims of high-handed treatment, but instead firm, fair, and warranted discipline.

  5. No claims of favoritism, other than that is earned through work performance.

  6. Supervisors who have good relationships with subordinates.


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.

Avoiding shifting explanations avoids claim of pretext


Rep. Eric Massa resigned from Congress last week. Depending on the interview and the day, he either resigned: for health reasons, because of allegations he inappropriately touched a male aide, or because he, a Democrat, voted against the health care bill. Three very different reasons over the course of a week. Can we believe any of them, given these shifting explanations?

You may be wondering, what does Massa’s political downfall have to do with employment law? It serves as an excellent illustration of the dangers of shifting explanations in discrimination litigation.

For a plaintiff to succeed in a discrimination case, he or she must show that the employer’s stated reason for the challenged decisions was a pretext (i.e., a lie or a cover-up) for discrimination. One of the easiest ways for a plaintiff to establish pretext is to show that the employer’s explanation for the decision changed over time. Shifting reasons cast a cloud of doubt over the veracity of the explanation and the legitimacy of the decision. Once the fact-finder has reason to disbelieve the employer’s explanation, the case is sunk. As the United States Supreme Court stated in St. Mary's Honor Center v. Hicks, “the factfinder’s disbelief of the reasons put forward by defendant (particularly if disbelief is accompanied by a suspicion of mendacity) may … show intentional discrimination.”

The takeaway – it is important to have your reason for the decision pinned down at the time the decision is made. Further, the reason must remain reasonably consistent for the lifespan of the case. You cannot offer the employee one reason, have another written in the personnel file, provide the EEOC another in the position statement, and have the decision maker tell yet another at deposition. At best, these shifting explanations will buy you a jury trial; at worst, they will result in a large jury verdict.


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.