WIRTW #154 (the thankful edition)

In her preschool class last week, my daughter had to share what she was thankful for. Her classmates gave the standard responses—parents, grandparents, siblings, maybe a pet or two. Her answer—Peter Pan. Good to know where my wife and I stand in her corner of the universe.

Here’s what I’m thankful for (at least as my blog is concerned):

• I’m thankful for the nearly 600 subscribers who think enough of what I have to say on a daily basis to have my thoughts delivered to their feedreaders or inboxes.

• I’m thankful for the more than 8,000 different visitors each month who find me via a Google search, a link, Twitter, or some other way, who stop by to read my thoughts and musings.

• I’m thankful for all of my blogging and tweeting colleagues—many of whom I now consider friends—with whom I have shared ideas and links, and engaged in interesting debates.

• I’m thankful for all of the reporters who have used me a source (and spelled my name correctly).

• I’m thankful for my partners, who, when they were the partners, provided me the freedom to start what at the time was a novel project.

• Finally, I’m thankful for my wife, who often puts up with my late-night typing because I have a thought I want to finish for the next morning.

Have a great Thanksgiving and long holiday weekend. I’ll see everyone back on Monday, when we start the stretch run to my annual list of the year’s top 10 labor and employment law stories.

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

Discrimination

• “Legal” Drugs and the ADA, Part III – from Workplace Prof Blog

• EEOC Granted Wide Latitude in Age Subpoena Enforcement – from Workplace Class Action Litigation

• How to Survive the ADAAA: Seven Best Practices for Employers – from Employment and Labor Insider

• Followup and Resources from Where We Live’s Discussion on Gender Wage Gap – from Daniel Schwartz’s Connecticut Employment Law Blog

• “Good parenting” in an age of work-family imbalance – from Work and Family Blog

• Paycheck Fairness Act: Good Riddance – from the Evil HR Lady (writing at BNET)

• Answer to Question of the Week: Body Art – from Mark Toth’s Manpower Employment Blawg

• If you provide public accommodations, beware discriminating against people with disabilities – from Employment Law Bits

• In Defense of the EEOC? No, Just a Reminder About Pancakes – from Michael Fox’s Jottings By An Employer’s Lawyer

Wage & Hour

• What Are YOU Doing About Wage and Hour Compliance? – from Stephanie Thomas at Compensation Cafe

• Baltimore Workers File Class-Action Suit Over ESPN Zone Closure – from Workplace Fairness

• Labor Department Partners With ABA in Lawyer Referral Program – from ABA Journal Daily News

• Care In Drafting Pay Documents Is Essential – from Wage and Hour Laws Blog

Social Networking & Technology

• Nearly Half of CIOs Plan to Restrict Cyber Holiday Shopping from Joe’s HR and Benefits Blog

• CIOs See Smartphones as Data Breach Time Bombs from Ride The Lightning

• Mining Facebook Pages of Police-Officers-To-Be – from Molly DiBianca at the Delaware Employment Law Blog

• Facebook Accounts for 25% of All U.S. Pageviews – from Mashable

• Computer Fraud & Abuse Act: Court Rejects Argument That Employer’s Corporate Policies Can Make Employee Access “Unauthorized” Under the CFAA – from Trade Secrets & Non-Compete Blog

Non-Competition Agreements

• Honoring a competitor’s non-compete? – from Rob Radcliff’s Smooth Transitions

• “Head-Start” Rule Applies to Damages, As Well As Injunctions – from Kenneth Vanko’s Legal Developments In Non-Competition Agreements

Miscellaneous

• NLRB Seeks Briefs in Case Alleging Discriminatory Denial of Union Access to Employer Property – from Seth Borden’s Labor Relations Today

• Are You Working Over the Thanksgiving Holiday? – from Harvard Business Review

• The Importance of Small Businesses – from Michael Haberman’s HR Observations

• How to make an open-door policy a reality – from Work Matters

---

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

Do you know? The voluntariness of release agreements

The facts that led to the severance agreement in Gascho v. Scheurer Hosp. (6th Cir. 11/19/10) [pdf] are what make employment law an interesting way to make a living. The legal issues surrounding the enforceability of a severance agreement, however, are what make this post worth reading.

Mary Ann Gascho, the plaintiff, was a 35-year employee of Scheurer Hospital. For the last 18 years of her employment, she was also married to the hospital’s President and CEO, Dwight Gascho. Dwight, it turns out, was having an affair with one of the hospital’s Vice Presidents. Around the time Mary Ann began to suspect her husband’s infidelities, he began physically abusing her. After Dwight admitted the affair and demanded a divorce, Mary Ann confronted the VP, calling her, among other things, “the whore next door.” That confrontation led to Dwight firing his wife. Cooler heads prevailed, however, when the hospital’s HR Director, Greg Foy, converted the termination into a three-day suspension. That suspension dovetailed into an FMLA leave.

Following the leave, the hospital offered Mary Ann a separation package. Foy presented her the agreement, explained and summarizing its key provisions, recommended that she hire a labor-law attorney to review the document, and told her that she would have 21 days to sign the agreement and seven days to change her mind if she did sign it. There was no physical harm or threats of physical harm between the day she was fired and the day she signed the agreement. Her husband, though, did use various methods of persuasion to try to convince her to sign, including lashing out and yelling at her. After consulting with her children, Mary Ann ultimately signed the agreement.

When she sued the hospital a year later for discrimination, the district court dismissed her claims as barred by the separation agreement. The 6th Circuit agreed, examining the following five factors to determine whether the release was “knowing and voluntary”:

1. Plaintiff’s experience, background, and education.
2. The amount of time the plaintiff had to consider whether to sign the waiver, including whether the employee had an opportunity to consult with a lawyer.
3. Clarity.
4. Consideration.
5. The totality of the circumstances.

1. Mary Ann’s experience, background and education. The court concluded that a nurse—with more than three decades of experience and who rose to a management position—could comprehend the meaning and effect of a settlement agreement.

2. Time to consider the waiver and opportunity to consult an attorney. The hospital gave Mary Ann 21 days to review the agreement and seven days to change her mind after signing it. While Title VII does not have a statutory requirement for waivers, the 21 days mirrors the OWBPA’s requirements for waivers of federal age discrimination claims. “This congressional policy in a related civil rights statute bolsters the conclusion that a 21-day consideration period and a seven-day reconsideration period suffices to establish a legitimate waiver.” That timeline gave Mary Ann ample opportunity to consider the agreement and consult with an attorney.

3. The clarity of the waiver. The waiver “releases and forever discharges [Scheurer] Hospital … from any and all claims of any nature … based on any fact, circumstance or event occurring or existing at or before [Mary Ann’s] execution of this Agreement. [It] includes all claims whatsoever … including … claims under …Title VII of the Civil Rights Act of 1964.” According to the Court, “One does not need a law degree to grasp the import of these terms.”

4. Consideration for the waiver. In exchange for the waiver, the hospital offered Mary Ann a year’s salary plus other benefits, which was more than sufficient consideration.

5. Other relevant circumstances. Mary Ann claimed that she was under duress to sign the agreement. The court disagreed:

All bargaining, whether to buy a house, to take a job or to settle a dispute, comes with implicit economic and psychological pressures—that if the one party does not take the offer, it may go to someone else…. The better the offer, indeed, the greater the implied fiscal threat, creating the possibility that a claim of duress grows stronger the more generous the offer. 

That Gascho worried about having to file a lawsuit (and winning it) if she opted not to accept the settlement offer is precisely the kind of pressure anyone (not independently wealthy) would face in this context…. “No legal system can accept an assertion that ‘this contract was signed under duress because my only alternative was a lawsuit.’ That would eliminate settlement—and to a substantial degree the institution of contract itself.” …

Over one month had passed since the last act of physical violence…. Gascho had plenty of time to consider the agreement, plenty of time to rescind the agreement after signature and plenty of time to consult a labor attorney, as one hospital executive (Greg Foy) recommended she do. She spoke with several people before she signed the agreement, including friends and trusted family members (e.g., her children), and none of them advised her not to sign it. It is difficult to square these circumstances with the notion that Gascho’s husband coerced her to sign the agreement.

Like Mary Ann Gascho, anyone is free to challenge the knowing and voluntary nature of a release. As this case shows, however, it is very hard for employees to win these challenges.Courts treat settlement agreements as sacrosanct. If you resolve a case with an employee and obtain a signed agreement with a release that meets these criteria, you can ordinarily rest comfortably that you are free from future lawsuits brought by that employee.

EEOC poised to explore plight of older workers in current economy

Last Wednesday, the EEOC heard testimony that age discrimination is causing older workers to have a difficult time maintaining and finding new employment. The EEOC believes that the current economic climate is exacerbating this problem. At a minimum, it is increasing the number of employees who claim to be victims of age discrimination. Last year, the EEOC received 22,778 charges of age discrimination, which represented 24.4% of all charges filed, up from 16,548 charges and 21.8% in 2006.

The EEOC heard the following testimony:

• William E. Spriggs, Ph.D., Assistant Secretary for Policy, U.S. Department of Labor: “[D]uring a deep and long recession, the lengths of time that people remain unemployed increases. Older workers have been overwhelmed in this current recession and their numbers are high among the worst indicators. They are the slowest to be reintegrated from unemployment to employment, which indicates that their job search is longer and more challenging. This comes at the cost of human capital depreciation for older workers.”

• Mary Anne Sedey, plaintiff-side employment lawyer: She claimed that older workers rarely litigate discriminatory hiring claims, and urged the EEOC to investigate age discrimination in hiring. She cited three reasons: applicants lack information about why they were turned down, they are reluctant to file a claim based on a hunch, and they cannot find lawyers willing to take their claims.

• Michael Foreman, Director, Civil Rights Appellate Clinic, Pennsylvania State University Dickinson School of Law: He discussed the impact of Gross v. FBL Financial Services, Inc., which held that the ADEA requires a plaintiff to show that his or her age was the “but-for” cause of the employment decision. He argued that Gross applies an unreasonably high burden for plaintiffs in age cases, “preventing potentially legitimate claims of discrimination from ever reaching a jury.”

• Deborah Russell, Director of Workforce Issues in AARP’s Education and Outreach Department: She discussed some proactive steps employers in the healthcare industry have taken to meet the needs of the over-50 demographic.

• Cornelia Gamlem, Society for Human Resource Management: She discussed some suggested best practices for recruiting, retaining, and managing mature workers, including workplace flexibility, retention programs, targeted recruitment, and reductions in force management.

EEOC Commissioner Stuart J. Ishimaru said, “The treatment of older workers is a matter of grave concern for the Commission. We must be vigilant that employers do not use the current economy as an excuse for discrimination against older workers.” Going forward, it is clear that the EEOC will target age discrimination as an enforcement priority. Any company that is either reducing ranks via layoffs, or hiring to re-staff as the economy rebounds, should pay extra attention to age discrimination issues in light of this administrative enforcement.

---

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

WIRTW #153 (the redux edition)

Except for two huge stories (the failure of the Paycheck Fairness Act and on-going coverage of the NLRB’s complaint challenging a Connecticut company’s social media policy), it’s been a pretty quiet week.

For more on the Senatorial sinking of Paycheck Fairness, see Maryland Employment Law Developments, The Proactive Employer, Washington Labor & Employment Wire, Connecticut Employment Law Blog, Washington D.C. Employment Law Update, HR HQ, Colorado Employer's Law Blog, and the DOL’s Work in Progress blog (for a pro-employee viewpoint).

For more on the future legality of workplace social media policies, see The ChamberPost, Philip Miles’s Lawffice Space, HR Observations, New York Labor and Employment Law Report, The Labor and Employment Law Blog, Nolo’s Employment Law Blog, Delaware Employment Law Blog, Joe’s HR and Benefits Blog, Minnesota Labor & Employment Law Blog, TLNT, and Today's Workplace (for a pro-employee viewpoint).

Also this week, the EEOC issued a Q&A for small businesses on its GINA regulations, in addition to some background information on the regulations.

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

Social Networking

• Facebook Unfriending as Workplace Retaliation? – from Molly DiBianca at the Delaware Employment Law Blog

• Paula Berg: Turning Lemons into Lemonade: 11 Components of a Social Media Crisis Plan – from Huffington Post

• What You Can and Can’t Say - Room for Debate – from the New York Times

• IndustryWeek : Has Email Become a Dinosaur? Workforce Prefers Twittering – from industryweek.com

• Facebook account protected from disclosure in discovery, for now – from Internet Cases

Discrimination

• Is It Sexual Harassment to Require Employees to Submit to Pat-Down Searches that Involve Inappropriate Touching? – from Workplace Prof Blog

• Stray Remarks May Bolster Discrimination Claims In California – from Hunton Employment & Labor Law Perspectives™

• The Gender Wage Gap: If Employment Discrimination Isn’t the Reason, What Is? – from Daniel Schwartz’s Connecticut Employment Law Blog

• Stupid Manager Tricks: Sexual Harassment Edition – from Stephen Meyer’s HR Cafe

• Do you need insurance against employee lawsuits? – from dailyherald.com

• Ergonomics and Reasonable Accommodations – Part 1 – from Kiernan’s Corner: Preventive Law for Employers

Trade Secrets and Non-Compete Agreements

• How Non-Competes for Execs and Lebron James Are Linked – from Kris Dunn, The HR Capitalist

• Who Should Investigate Leaks of Proprietary Information? – from Trade Secret / Noncompete Blog

• Litigation Budgets in Non-Compete Cases – from Trade Secrets & Non-Compete Blog

Labor Relations

• Board to Revisit Dana Corp., Voluntary Recognition Bar – from Seth Borden’s Labor Relations Today

• New NLRB General Counsel Nips at Employers’ Heels Without EFCA – from EFCA & Labor Law Reform Blog

Employee Relations and HR

• Is it time for retailers to adopt a crowd management plan before Black Friday? from Business, Employment and Real Estate Law in Ohio

• Things Not to Say at Work – from Tom Crane’s San Antonio Employment Law Blog

• Expecting the unexpected – from Michigan Employment Law Connection

Wage & Hour

• FMLA FAQ - How do I calculate FMLA leave around the holidays? – from FMLA Insights

• Happy Thanksgiving! Turkey Processing Plant Workers Sue For Overtime – from Wage & Hour - Development & Highlights

---

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.

The failure of the Paycheck Fairness Act ends the golden age of employment law

The Democrats swept into office in January 2009 with promises of paradigm-shifting labor and employment law reforms: card check union recognition, Title VII coverage for sexual orientation and gender identity, expanded FMLA coverage, the end of arbitration agreements, and paid sick leave are but a few of the campaign issues on which the Democrats won the the White House and substantial majorities in both halves of Congress.

Yesterday, the Senate failed to vote to close debate on the Paycheck Fairness Act. That vote, coupled with the incoming Republican majority in the House, means that we likely have seen the end of any significant employment law reforms by the Obama administration’s first (only?) term. The scorecard is stunning. The lone significant employment law legislation to become law under Obama’s watch is the Lilly Ledbetter Fair Pay Act, which, in and of itself, is not all that significant. It affects the timeliness of discrimination claims, and potentially exposes businesses to more lawsuits. Yet, if you ranked the various pieces of legislation discussed and debated over the last two years, Ledbetter would rank pretty low in terms of societal impact.

In comparison, President Bush passed three key pieces of employment legislation during his last year in office: the FMLA military leave amendments, the ADA amendments, and the Genetic Information Nondiscrimination Act. The significance of these three laws will be felt for years to come.

In early 2009, I joined the chorus of employment lawyers who believed that President Obama would change the landscape of labor and employment law. No one ever likes to be wrong. For the sake of American businesses, many of which are still trying to climb out of the worse recession in 80 years, I have never been so happy to have been off the mark.

---

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.

Three steps to avoid a discriminatory hiring claim

Bartlett v. Gates (6th Cir. 11/16/10) [pdf] involved a plaintiff who claimed that he was passed over for a promotion because of his age and sex. The 6th Circuit Court of Appeals reversed a district court’s dismissal of the discrimination claims for the following three reasons:

1. The plaintiff was objectively as qualified as, if not more qualified than, the successful candidate. He had 24 years of experience as compared to eight. In addition, he possessed superior educational credentials, including a bachelor’s degree, whereas the successful candidate had not graduated from college. There was also some evidence of superior communication skills and job-specific work experience.

2. The hiring manager had not conducted any job interviews and lacked basic knowledge about the successful candidate. Despite the employer’s explanation that it had hired the best-qualified candidate for the position, the hiring manager was unable to describe her credentials. The hiring manager testified that she was able to making a hiring decision without holding any interviews because of her personal knowledge and familiarity with the job applicants’ experience, backgrounds, and competency. Yet, she did not know whether the successful candidate even had a prior experience related to the core functions of the job.

3. There was some direct evidence of discriminatory animus. The plaintiff’s supervisor and hiring manager made comments to and about the plaintiff such as informing him that his 34 years on the job were “enough,” joking about whether he had taken up “antiquing or traveling or something like that,” and suggesting that the plaintiff should retire.

What lessons can employers take away from this case to avoid a discriminatory hiring claim? Here’s three:

1. If you are not going to hire the most qualified person, at least know what you are getting yourself into. Perform a comparison of candidates, including their qualifications, relevant experience, and key demographics. Have objectively supportable reasons why you chose the 29-year-old over the 53-year-old.

2. Meet the candidates. When you whittle the field down to the final few, meet and interview them. Do not rely solely on paper. If you know the candidates, do not rely solely on past experience. Talk to them, avoid illegal questions, and form reasoned, objectively supportable pros and cons for each.

3. Finally, if you feel the need to make racial, sexist, or ageist comments in the months before and after a hiring decision, wait until you get home, make sure all your doors and windows are closed, and yell them into a pillow.

---

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

Do you know? Post-employment retaliation

The typical retaliation scenario involves an employer firing an employee who complained about discrimination or engaged in some other protected activity. What happens, however, if the employer retaliates after the end of the employment relationship? Do the anti-retaliation laws reach these allegations of post-employment misconduct? The short answer is yes.

The logical place to start in deciphering this “yes” is with the statues themselves. Ohio’s anti-retaliation provision, O.R.C. 4112.02(I), makes it illegal

for any person to discriminate in any manner against any other person because that person has opposed any unlawful discriminatory practice defined in this section or because that person has made a charge, testified, assisted, or participated in any manner in any investigation, proceeding, or hearing under sections 4112.01 to 4112.07 of the Revised Code.

All of the federal anti-discrimination laws (Title VII, the ADEA, the ADA, and GINA) contain similar prohibitions. In Robinson v. Shell Oil Co. (1997), the U.S. Supreme Court concluded that the term “employees” in Title VII’s retaliation provision “includes former employees,” allowing an employee to “bring suit against his former employer for postemployment actions allegedly taken in retaliation.” Because of the similarity in language across the federal and state statutes, it’s safe to assume this result applies across the board.

What does this mean for employers? It means that retaliation does not stop on the last day of employment. It means that employers must treat ex-employees who have engaged in protected activity with the same kid gloves as current employees. And, it means that ex-employees can sue you for post-employment adverse actions such as:

• A negative job reference
• The filing of a lawsuit or counterclaim (with a large caveat)
• The denial of pension credits or other benefits to which the employee was entitled
• The filing of a law enforcement complaint
• Threats and ostracism

Just one more concept to build into your EEO training for your managers and supervisors.

What dryer drums have to do with unpaid wages (or, a scathing judicial indictment of class action lawsuits as extortion)

Thorogood v. Sears, Roebuck & Company (7th Cir. 11/2/10) [pdf] involves the attempted litigation of multiple class action lawsuits in different states over the issue of whether the advertising of a stainless steel dryer drum was deceptive. In brief, after a district court dismissed a class action lawsuit brought by Thorogood against Sears in Tennessee, the same lawyers filed a similar claim in California on behalf of a different plaintiff, Murray. The case caught my attention because of judge’s scathing indictment of class action lawsuits (I apologize for the long quote, but it is worth reading):

The class action is a worthwhile device for economizing on the expense of litigation and enabling small claims, illustrated by Thorogood’s claim, capped at $3,000, to be litigated at all (though when the claim is deceptive advertising, a proceeding before the Federal Trade Commission is a more economical alternative to a class action suit). But the device also lends itself to abuse. [C]lass members are interested in relief for the class but the lawyers are primarily interested in their fees, and the class members’ stakes in the litigation are ordinarily (and in the present case or cases) too small to motivate them to supervise the lawyers in an effort to align the lawyers’ incentives with their own…. Defendants, wanting to minimize the sum of the damages they pay the class and the fees they pay the class counsel, are willing to trade small damages for high attorneys’ fees…. These convergent incentives forge a community of interest between class counsel, who control the plaintiff’s side of the case, and the defendants, but may leave the class members out in the cold….

An additional asymmetry, also adverse to defendants, involves the cost of pretrial discovery in class actions. One purpose of discovery—improper and rarely acknowledged but pervasive—is: “it makes one’s opponent spend money.” … In most class action suits, including this one, there is far more evidence that plaintiffs may be able to discover in defendants’ records (including emails, the vast and ever-expanding volume of which has made the cost of discovery soar) than vice versa. For usually the defendants’ conduct is the focus of the litigation and it is in their records, generally much more extensive than the plaintiffs’ (especially when as in a consumer class action the plaintiffs are individuals rather than corporations or other institutions), that the plaintiffs will want to rummage in quest for smoking guns.

The merit of Murray’s case, like Thorogood’s, of which it is a close copy, is slight. But the pressure on Sears to settle on terms advantageous to its opponent will mount up if class counsel’s ambitious program of discovery is allowed to continue. A letter from Mark Boling, Murray’s co-counsel, to Sears’s counsel, printed at the end of this opinion, illustrates the point. The letter reminds Sears that discovery is proceeding and “will involve Plaintiff’s counsel delving into the full extent of Defendants’ alleged wrongdoing” in order to justify not only equitable relief but also punitive damages—which are potentially very large given the size of the class and the possible preclusive use of any judgments favorable to the plaintiffs in suits brought in other states. The letter continues: “as we progress through the various stages of this litigation, the cost of settlement will necessarily increase…. At this point, we may want to consider whether an appropriate olive branch for resolution can be mutually created on a class wide basis commensurate with the status of the case. If interested, please pick up the telephone and call me. In the meantime, Plaintiff will continue to diligently and timely prosecute this case to an appropriate result.” In other words, unless Sears settles now (implicitly for modest relief for the class and an agreement with class counsel to recommend to the judge generous fees for Krislov and Boling), it will incur the considerable cost of responding to class counsel’s distended project of “delving” and assume the risk of a very large adverse judgment. And as Boling’s letter also points out, “if plaintiff is successful on a motion for class certification, the court as the gate keeper will demand a more significant recovery for resolution.”

This scenario is not all that much more different than the standard wage and hour class action.

• Like the Sears example, employers in wage and hour class actions bear a disproportionately large share of time and expense in discovery. Employers have most, if not all, of the wage and hour records, many of which are archived and expensive to recover. Discovery of email exponentially adds to the discovery expense. These high costs bear heavily on an employer’s decision whether to settle or litigate a case.

• Like Sears, employers feel an inordinate pressure to settle these claims. The exposure in wage and hour lawsuits can be large (sometimes, even “bet the company” like exposure). The risk of high attorneys’ fees award only serves to exacerbate that pressure to settle. It is not a secret that claimants use that exposure to their advantage to leverage early resolutions.

• And, like the Federal Trade Commission in a consumer case, there exists a federal agency that can economically litigate a meritorious claim, the Department of Labor.

Now that we all know what dryer drums have in common with wages and hours, we can get back to defending class action lawsuits.

[Hat tip: PointofLaw.com]

WIRTW #152 (the Facebook firing edition)

Last week, I wrote about the NLRB’s complaint against a Connecticut company claiming that its social networking policy violated federal labor law. Since then, the story has exploded across the Internet, being picked up by the New York Times, the Wall Street Journal, Law.com, the ABA, CNN, ABC News, MSNBC, Fox News, NPR, and cnet, to name a few. The NLRB itself has even gotten in on the act, updating its own Facebook page to publicly discuss the issue (not to pre-decide the case or anything). It’s also been a popular topic across the blogosphere:

• Are Employee’s Facebook Posts Protected Activity? – from Delaware Employment Law Blog

• NLRB Alleges that Connecticut Company Illegally Fired Employee Over Comments on Facebook – from Connecticut Employment Law Blog

• How does the NLRB’s Facebook firing complaint relate to the struggle against workplace bullying? – from Minding the Workplace

• NLRB Files Complaint Against CT Employer for Firing Employee Over Facebook Postings – from Wisconsin Labor & Employment Law Blog

• More On American Medical Response -- a/k/a The “Facebook Firing” Case – from Labor Relations Today

• Is Bashing your Boss on Facebook Protected Activity? – from HR Lawyer’s Blog

• Employee Fired for Disparaging Her Boss on Facebook – from San Antonio Employment Law Blog

• When Are Facebook Updates a Firing Offense? – from HBR.org

• NLRB: Facebook Discussions Between Co-Workers are Protected Speech – from Work in Progress

• NLRB Issues Complaint Over Employee’s Posting on Facebook – from Wyatt Employment Law Report

• Case To Watch: NLRB Challenges Employer’s Termination of Employee Based on Violation of Social Media Policy – from Digital Workplace Blog

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

Discrimination

• Update: Teacher who allegedly branded cross onto student’s arm drops suit – from Walter Olson’s Overlawyered

• Non-sexual acts can support a sexual harassment claim – from Sindy Warren at the Warren & Hays Employment Law Blog

• Combating Stereotypes of Workers with Disabilities – from DOL’s Work in Progress

• Third Circuit Holds Ledbetter Fair Pay Act Does Not Save Untimely Failure-to-Promote Claims – from Pennsylvania Labor and Employment Blog

• Work-Life Balance: Men Want It, Too – from Work and Family Blog

• The role of incorrect perception in retaliation, hostile environment claims – from Work Matters

• ‘Zip It’ Doesn't Work When Firing Employees – from Case In Point

HR and Employee Relations

• Ethics Policies: You Got ‘Em – Now Flaunt ‘Em! – from Employment Essentials

• Maybe You Should Just Offer Reasonable Bereavement – from Evil HR Lady

• Telecommuting and HR – from Michael Haberman’s HR Observations

• 10 Things You Probably Don’t Want To Post On Facebook If You’re Looking For A Job – from fyiscreening.com

• HR Plays Too Much Defense – from Fistful of Talent

Litigation

• Satan No Obstacle to Settlement – from Philip Miles’s Lawffice Space

• Supreme Court Hears Arguments in Arbitration Preemption Case – from Washington D.C. Employment Law Update

• Workplace Prof Blog: Sternlight on theSCOTUS Class-Action Arbitration Case – from Workplace Prof Blog

• Court of Appeal: No Attorney Present at Plaintiff’s Mental Examination – from What’s New in Employment Law?

• Garbage Objections = Sanctions – from Resolving Discovery Disputes

• Twelve Ways To Alienate The Trial Judge – from Litigation, Evaluation and Trial Strategy Blog

Technology

• The Future of Human Resources and Social Media – from Mashable

• U.S. Loses Argument that the Computer Fraud & Abuse Act Applies to Employees Who Access Work Computers – from Trade Secrets & Non-Compete Blog

• Firesheep: A Wolf in Sheep's Clothing - Beware! – from Sharon Nelson’s Ride The Lightning

• What is the ABA Commission on Ethics 20/20 considering re law blogs? – from Real Lawyers Have Blogs

Wage & Hour

• GINA Rules Require New Disclosures In Requests For FMLA Certification – from FMLA Insights

• Sixth Circuit’s FMLA Reminders to Employers, Part Three: It Ain’t Over ‘Til It’s Over – from Iowa Employer Law Blog

• Overtime: It’s the Work, Not the Title That Matters – from The Word on Employment Law with John Phillips

• Another Interesting Development from Last Tuesday - $4 MDV for FLSA Retaliation – from Michael Fox’s Jottings By An Employer’s Lawyer

• Second Circuit Affirms Denial of Class Certification for Hertz Station Managers and Provides Guidance on FLSA Certification Standard – from Employment Class Action 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.

Court makes clear that an ADA reasonable accommodation does not require preferential treatment in filling open positions

In Garcia v. Whirlpool Corp. (N.D. Ohio 11/5/10) [pdf], the trial court dismissed a disability discrimination claim because the plaintiff agreed that the individuals hired into the open position for which she sought reassignment as a reasonable accommodation were more qualified.

Here are the facts. Garcia had a 10-year history of shoulder problems relating to workplace injuries suffered on a Whirlpool assembly line. After her third shoulder surgery, which did not correct the problem, her doctor informed her that she had reached maximum medical improvement. Accordingly, she could not return to her assembly line position.

Whirlpool had a job bidding procedure, in which hourly employees, like Garcia, could bid on open positions. Whirlpool’s policy and practice was to hire the most qualified candidate, which it generally considered to be the qualified employee with the most seniority. Garcia expressed interest in and applied for several administrative, salaried, or supervisory positions. Ultimately, all of her applications were unsuccessful. Whirlpool awarded the jobs to employees with prior management experience, prior job-specific experience, or a college degree.

Ultimately, Whirlpool fired Garcia pursuant to its medical leave policy, which allowed for a maximum of two years of leave.

The district court disagreed with Garcia that Whirlpool owed her a transfer to one of the open positions as a reasonable accommodation. While the ADA requires an employer to consider reassignment to a vacant position if the disabled employee cannot be reasonably accommodated in his or her current job, it does not require a promotion as a reasonable accommodation. Thus, because none of the jobs for which Garcia applied were comparable to her assembly line job, and many would have been promotions, she could not prove that she was qualified to work with a reasonable accommodation.

Additionally, Whirlpool was entitled to fill the vacancies by following its internal policy and bidding procedure to hire the most qualified candidates. The court made it clear —at least in the 6th circuit and majority of other circuits—that the ADA does not mandate preferential treatment:

[T]he ADA does not impose a mandatory obligation to reassign the disabled employee where the employer has a policy of awarding the transfer position to the most qualified candidate, and the employer would be required to turn away a superior candidate.

Because Garcia could not contest that the individuals Whirlpool hired were more qualified, her ADA claim failed.

---

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.

The 5 most interesting things about GINA

To have Gina, Gina all for my very own
It’s much too wonderful, so very wonderful
To know that Gina is mine alone
 – Gina, Johnny Mathis

Yesterday, the EEOC published the long-awaited regulations to the employment provisions of GINA [pdf], the Genetic Information Nondiscrimination Act. According to the EEOC, GINA has 4 stated purposes:

1. To prohibit the use of genetic information in employment decisions;
2. To restrict employers and others from requesting, requiring, or purchasing genetic information;
3. To require that employers maintain genetic information as a confidential medical record, with strict limits on disclosure; and
4. To provide remedies for individuals whose genetic information is acquired, used, or disclosed in violation of the Act. 

After taking a day to digest these regulations, here’s what I found to be the 5 most interesting things the regulations provide:

1. GINA does not just cover employees’ genetic information. It also covers the genetic information of relations as attenuated as great-great-grandparents, great-great-grandchildren, and first cousins once-removed (the children of first cousins).

2. GINA is intended to be a broad anti-discrimination statute. It not only prohibits discrimination against employees on the basis of genetic information in hiring, firing, compensation, terms, conditions, or privileges of employment, but also harassment on the basis of genetic information, and retaliation where an individual opposes any act made unlawful by GINA, files a charge of discrimination or assists another in doing so, or gives testimony in connection with a charge.

3. GINA’s prohibition against the request of genetic information about an employee or family member includes Internet searches in a way that is likely to result in obtaining genetic information, even if the information is publicly available. However, if an employer “inadvertently learns genetic information from a social media platform which he or she was given permission to access by the creator of the profile at issue” (such as an employee who posts family medical history on his Facebook wall, and his supervisor, with whom he is a Facebook friend, sees it), GINA has not been violated. Employers are similarly protected for genetic information employees inadvertently disclose during casual “water cooler” conversations.

4. GINA permits employers to obtain genetic information as part of employer-provided health or genetic services, such as voluntary wellness programs. While the regulation do not define “voluntary,” they do provide that employers can offer certain financial incentives to employees without stripping the wellness program of its voluntariness.

5. GINA requires that employers keep all genetic information confidential, stored in separately maintained confidential medical files, consistent with the medical information storage obligations of the ADA. There is, however, a grandfather provision for genetic information obtained before November 21, 2009. Employers need not strip that information from non-confidential files.

As I noted above, there has been a lot of coverage around the blawgs about these regulations. If you are looking for more information and analysis on GINA’s regulations, I recommend the following:

• EEOC Issues Final GINA Regulations – from Washington D.C. Employment Law Update (the most comprehensive summary I’ve seen)
• Social Media and GINA – from Philip Miles’s Lawffice Space
• Final GINA Regulations (Finally!) Published: Addresses Treatment of Acquisition of Genetic Information Via Social Media – from the Social Networking Law Blog
• Finally, EEOC Issues Final GINA Regs – from Kiernan’s Corner: Preventive Law for Employers
• EEOC Issues Final GINA Regulations – from the Iowa Employer Law Blog
• EEOC Issues Final GINA Regulations for Employers – from the Delaware Employment Law Blog
• EEOC Issues Final GINA Regulations – from Human Resources News
• Final GINA Regulations Address Online Searches, Wellness Programs, and More – from Nolo’s Employment Law Blog
• Final GINA Regulations Published: Impact in Connecticut Still Unclear – from Dan Schwartz’s Connecticut Employment Law Blog

In the face of these regulations, expect to see genetic discrimination claims as a growing trend in 2011.

---

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

Do you know? FMLA & bereavement leave (or, what to do when a supervisors calls an unauthorized leave request “cool”)

The FMLA covers a lot of family emergencies. Death, however, is not one of them. There is no situation in which the FMLA, on its face, provides for a leave of absence for bereavement. Lots of employers allow for bereavement leave for lots of situations, but it is not required by the FMLA.

That is, it is not required by the FMLA unless you promise otherwise. In Murphy v. FedEx National (8th Cir. 8/26/10), an employee sought and received FMLA leave to care for her hospitalized husband. When he died a week later, she took three days’ bereavement leave. Thereafter, she told her supervisor she needed 30 more days to “take care of things.” The supervisor responded, “OK, cool, not a problem, I’ll let HR know.” As it turns out, the extra 30 days was a problem for HR, which denied the request and terminated the employee, who had not returned to work.

The 8th Circuit was not all that sympathetic to FedEx’s claim that Murphy didn’t qualify for FMLA leave. The court focused on the supervisor’s statement, “OK, cool, not a problem, I’ll let HR know.” It concluded that one could easily interpret that statement to be an approval of the request for leave.

This is known as coverage by estoppel. While the FMLA does not cover bereavement leave, an employer’s representation, on which an employee reasonably relies to his or her detriment, will create coverage under the statute. In other words, if an employee, based on all the facts the circumstances, reasonably believes that the employer approved the FMLA leave, the employer cannot deny the leave request.

How do you avoid situations like these from cropping up in your workplace? You cannot require all leave requests be in writing, but there are certain steps you can take.

1. Train all managers and supervisors on the minutia of your leave policies. Anyone with any authority of any kind over employees must know what leave is authorized and what is not.
2. Require that all leave requests of any kind go through a designated central person or persons, like an HR manager.
3. Place a statement in your handbook that only leave granted by that central person or persons is authorized, and that no one else within the company has the authority or discretion to grant a leave of absence of any kind. That way, even if a supervisor tells an employee that leave is “cool,” it will not be reasonable for her to rely on that statement.

Do you want to read more on coverage by estoppel?

• Court adopts no-harm, no-foul approach to employer misstatements about FMLA coverage
• Don’t estop yourself into coverage
• Mind your (mis)representations
• Sixth Circuit holds that estoppel can bind a small employer to provide COBRA 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.

Are businesses cracking down on bandwidth?

I cannot work in silence. I never could, and I likely never will be able to. In high school, I did all my homework with the stereo blaring in my bedroom. In college, I studied in the common area of my dorm, with activity buzzing all around. And in law school, the student lounge was my study area. So, it comes as no surprise to me that I’ve never been able to practice law in silence either. These days, it’s either my iPod, or XM radio streaming through my desktop. The latter, however, is a bandwidth hog. Do the math. If you multiply me times a few dozen employees (or a few hundred, or a few thousand, depending on the size of the organization), it’s no surprise that corporate networks are being strained.

It’s also no surprise that employers are starting to fight back. According to the Silicon Valley Mercury News, Lockheed Martin Aeronautics announced to its employees that it would begin blocking music-streaming sites, online radio stations and gaming sites, and sites that stream sports and entertainment audio or video. Lockheed estimates that these recreational uses consumed up to 10% of its Internet bandwidth.

Decisions such as those taken by Lockheed are difficult ones. It’s often a struggle to balance corporate resources and employee morale. There is no right or wrong answer. You could frame the dilemma simply as “more bandwidth costs more money, ergo, bandwidth restrictions.” Or, you believe that happy employees are more productive employees, and determine that what you spend in extra bandwidth you will recoup in added productivity. Or, you can act like the HR manager in Dilbert and reward serious offenders by promoting them.

Bottom line – businesses need to make decisions about the appropriate allocation and use of bandwidth, and incorporate that decision into a workplace technology policy that sets out the dos and don’ts of workplace Internet use.

---

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

WIRTW #151 (the election recap edition)

Here’s my 140-character recap of Tuesday’s election: Obama did not learn from Clinton’s 92 – 94 mistakes. Cost Dems huge. We’ll see if Boehner learned anything from Gingrich’s post-1994 gaffes. Craving a more substantive analysis of the 2010 mid-term elections?

• State Secret Ballot Measures – from Workplace Prof Blog

• Post-elections Implications for Labor Bills in Congress – from Joe’s HR and Benefits Blog

• Impact of Midterm Election on Employment Law – from The Word on Employment Law with John Phillips

• Ohio: More Business-Friendly Approach Is Likely – from HR Hero’s Human Resources News

• Now That the Election is Done and Republicans Own the House, What Does that Mean for Labor? – from Wisconsin Employment & Labor Law Blog

• What did Election Day 2010 mean for the Healthy Workplace Bill? – from David Yamada’s Minding the Workplace

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

Discrimination

• Parents Need Not Apply – from WorkLife Law Blog

• Among Recent Lawsuits Filed By The EEOC, Disability, Retaliation Claims Most Prevalent, Employer Size Varies – from Hunton Employment & Labor Law Perspectives™

• Patience Is A Virtue With Workplace Investigations – from Colorado Employer’s Law Blog

• What Does Climbing the St. Louis Arch Have To Do With Proving Discrimination? Learning Employment Discrimination Law Basics From a Classic Civil Rights Story – from George’s Employment Blawg

• Halloween Harassment – from Abovethelaw.com

• Muslim Truck Driver Refuses to Deliver Alcohol – from Philip Miles’s Lawffice Space

Employee Relations

• “Use good judgment in all situations” – from Walter Olson’s Overlawyered

• Fired and Need Legal Advice? There’s an App for That – from Robert Ambrogi’s LawSites

• Business Case for Work/Life Balance--Really? – from The Careerist

• HR Plays Too Much Defense – from Fistful of Talent

• “Hire Attitude vs Aptitude”: A Lesson from Disney – from Michael Haberman’s HR Observations

• Referring to Former Boss as Slimebag Does Not Constitute Disparagement, At Least in Ohio – from Fitzpatrick on Employment Law

• Ohio School Employees Can Still Be Fired for Criminal Past – from employeescreenIQ Blog

Social Networking and Technology

• NLRB Alleges that Connecticut Company Illegally Fired Employee Over Comments on Facebook – from Dan Schwartz’s Connecticut Employment Law Blog

• Judge Obtains Protective Order Based on a Tweet – from Molly DiBianca at the Delaware Employment Law Blog

• Florida Issues New Jury Instructions: No Tweeting, Blogging, Net Research, etc. – from Sharon Nelson’s Ride The Lightning

Wage & Hour

• Strippers Claim Coverage Under FLSA And File Class Action! – from Wage & Hour - Development & Highlights

• USERRA coverage may be triggered prior to formal military orders – from Employment Law Matters

Trade Secrets & Competition

• Hire a Great Candidate, But Hopefully Avoid a Lawsuit – from Trade Secret / Noncompete Blog

• Just Because Trade Secrets Were Misappropriated Doesn’t Mean Unjust Enrichment Occurred – from Trade Secrets Blog

• Non-competition covenants’ restriction on innovation – from Maryland Employment Law Developments

---

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.

6th Circuit holds that an individual must be disabled to challenge a selection criteria under the ADA (but does it matter?)

Employee use of prescription drugs has been in the news lately. Last week, the New York Times ran a piece discussing the drug testing of employees for prescription medications. The article discussed Dura Automotive Systems, which, over concerns about drug use and worker safety, hired an independent company to administer random drug tests of its employes. It chose to screen for 12 types of drugs, including hydrocodone and oxycodone. Seven Dura employees tested positive for lawful prescription medications and sued following their terminations.

Yesterday, in Bates v. Dura Automotive Systems, Inc. (6th Cir. 11/3/10) [pdf], the 6th Circuit dismissed the claims of any of the plaintiffs who are not disabled under the ADA.

Section 12112(b)(6) of the ADA prohibits discrimination based on qualification standards, employment tests or other selection criteria. It provides:

No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual [by] using qualification standards, employment tests or other selection criteria that screen out or tend to screen out an individual with a disability or a class of individuals with disabilities unless the standard, test or other selection criteria, as used by the covered entity, is shown to be job-related for the position in question and is consistent with business necessity.

The 6th Circuit concluded that the plain language of the statute barred non-disabled employees from pursuing a claim:

Although non-disabled individuals may bring claims under some provisions of the Act, the plain text of subsection (b)(6) only covers individuals with disabilities. The text of subsection (a) and (b)(6) specifically refers to “qualified individual[s] with disabilit[ies],” and not … a broader class of individuals such as “employees.” … A straightforward reading of this statute compels the conclusion that only a “qualified individual with a disability” is protected from the prohibited form of discrimination described in subsection (b)(6)…. Although other sections of the Act apply to non-disabled individuals, the Act’s primary purpose is to prevent discrimination against disabled individuals…. Interpreting subsection (b)(6) as being limited to individuals with disabilities better gives effect to Congress’s decision not to use the word “employees” in this subsection.

This case may end up being much ado about nothing. Because terminations occurred before Jan. 1, 2009, the 6th Circuit decided this case under the pre-amendment ADA, which had a might tighter definition of “disability.” As I have previously discussed, the ADA Amendments Act expands the definition of “disability” so broadly that virtually every employee with a medical condition could be considered “disabled.” Therefore, future drug testing cases likely will not be decided on the issue of whether the tested employees were “disabled.” Instead, courts will decide future cases on whether the drug testing was job related and consistent with business necessity—an affirmative defense under the ADA. For this reason, it is important for businesses to contemporaneously document the job nexus and business need for all employee drug testing.

---

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.

Does your social networking policy violate federal labor laws?

It was only a matter of time before the NLRB inserted itself into the intersection of social networking and employment relations. It has Twitter account. Now, it has issued its first complaint challenging an employer’s social networking policy.

The NLRB has issued a complaint against a company that fired an employee after posting negative comments about her supervisor on her personal Facebook page. The Blog of Legal Times reports that the NLRB not only alleges that the employer illegally fired the employee for the posting, but that the company “maintained and enforced an overly broad blogging and Internet posting policy.”

An NLRB investigation found that the Facebook postings were “protected concerted activity,” and that the company’s blogging and Internet posting policy contained unlawful provisions, including one that barred employees from making disparaging remarks when discussing the company or supervisors and another that prohibited employees from depicting the company in any way over the Internet without company permission.

“Such provisions constitute interference with employees in the exercise of their right to engage in protected concerted activity,” the NLRB found.

This case could have far reaching implications for all employers—not just those that are collectively bargained. If the NLRB concludes that a singular posting on a personal website constitutes protected concerted activity, then it will be nearly impossible for an employer to regulate off-the-clock Internet activity. The NLRB will hold a hearing on this case on January 25, 2011. I will be very interested to read the ALJ’s decision.

---

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.

Reading the tea leaves: Staub v. Proctor Hospital and the “Cat’s Paw”

Before we get into the specifics of the Staub case, let’s first discuss the relationship between a cat’s appendage and employment discrimination law. The “cat's paw” derives from a 17th century fable by French poet Jean de la Fontaine. In “The Money and the Cat,” a monkey tricks a cat into scooping chestnuts out of a fire so that the monkey can eagerly gobble them up, leaving none left for the cat. It generally describes a situation where one is unwittingly manipulated to do another’s bidding. Drawing the parallel between la Fontaine’s fable and discrimination law, one seeks to hold an employer (the cat) liable for the discriminatory animus of an employee who played no role in the decision, but nevertheless exerted some degree of influence (the monkey). As Mike Maslanka put it on his Work Matters blog, the question is what is an employer’s liability “when the guy who pulled the trigger is pure, but the guy who loads the gun is not?”

Thus, the argument in the case is framed like this:

• Employers argue that federal discrimination laws make the employer liable only for the actions of the employee or supervisor who takes the discriminatory action.
• Employees,  however, argue that the is enough that the person with the discriminatory animus (the money) played some role in the process, even if the decision maker (the cat) is completely unaware of the animus.

As for the specifics of the case, Staub brought his claim under USERRA, which, among other things, protects those in military service from discrimination upon their return to employment from active duty. Staub had been a long-time employee of Proctor Hospital before being called upon to serve in Iraq. Many at the hospital were critical of Staub’s military service because of the strain it put on those who had to cover from him in his absence. When the Vice President of HR, who held no hostility towards Staub, terminated him, he sued, claiming that although the decision maker was not personally biased against his military service, she fired him based on the hostility of Staub’s direct supervisors.

The 7th Circuit reversed a jury verdict for Staub, holding:

[W]here an employee without formal authority to materially alter the terms and conditions of a plaintiff’s employment nonetheless uses her “singular influence” over an employee who does have such power to harm the plaintiff for racial reasons, the actions of the employee without formal authority are imputed to the employer…. [W]here a decision maker is not wholly dependent on a single source of information, but instead conducts its own investigation into the facts relevant to the decision, the employer is not liable for an employee’s submission of misinformation to the decision maker.

In other words, under the 7th Circuit’s pronouncement of the cat’s paw, the employer can only be liable if the decision maker is only influenced by the animus of the non-decision makers.

Yesterday, the Supreme Court held oral argument [transcript, in pdf] in this case. It’s hard to read Supreme Court Justices at oral argument. Sometimes they play devil’s advocate, and sometimes they genuinely challenge the attorney. Regardless, I found the following question from Justice Breyer (one the Court’s more liberal justices) to the employer’s attorney to be insightful:

You have A and B, they are both supervisors; in the one case B fires the employee because he is in the Army, and he says it: Ha, ha, that’s why I’m doing it. In the second case he fires the employee … for a perfectly good reason, but A has lied about it. And the reason A lied about it was because she wanted to tell him a lie so B would fire the employee, and her reason is because he’s in the Army. Those two situations, the second seems to me one of … 80 million situations, fact-related, that could arise, and I don’t know why we want a special standard for such a situation. Why not just ask the overall question, was this action an action that was -­ in which the bad motive was a motivating factor. Forget psychoanalysis of A. B is good enough -- or vice versa.

I also found insightful the following exchange between Justices Alito and Kennedy and the employee’s attorney:

   Justice Alito: Even -- even if the employer at that time did every -- made every reasonable effort to investigate the validity of all the prior evaluations, still the employer would be on the hook?

   A: Yes. There is nothing in the statute or in the common law that creates a special rule for thorough investigation.

   Justice Kennedy: Well, that's a sweeping rule. I was going to ask a related hypothetical. Suppose the -- the officer who is in charge, charged with the decision to terminate or not to terminate says: I'm going to have a hearing. You can both have counsel. And you have who, is it -- suppose Buck -- suppose the two employees that were allegedly anti-military here testified and they said there was no anti-military bias, and the person is then terminated. Later the employee has evidence that those two were lying. Could he bring an action then?

   A: Yes. Yes.

   Justice Kennedy: That’s sweeping. That's almost an insurer’s liability insofar as the director of employment is concerned…. He has to insure. He has -- he has done everything he can, he has an hearing, and he has almost absolute liability.

Reading the tea leaves, it is likely that the cat’s paw will survive the Supreme Court’s review in a narrow form. I predict that the court will derive a standard that looks to the ultimate decision and the role that the animus of the non-decision maker played in that decision. I also think that the Court will craft an affirmative defense or other means to rebut the inference of the cat’s paw, such as the decision maker's independent investigation of the circumstances leading to the termination.

---

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

Do you know? 10 provisions to include in severance and separation agreements

Last week, I wrote about problems in enforcing non-disparagement clauses in separation agreements. It got me to thinking—what other clauses should businesses prioritize for inclusion in separation agreements, other than the release and waiver? Here are my thoughts:

1. Consideration: A statement that the consideration provided to the employee is more than that to which the employee is otherwise entitled to employment by way of employment. Otherwise, the release and waiver could fail for the employee not receiving anything of value in exchange.
   
2. Confidentiality: A covenant as to the confidentiality of the agreement. You do not want other employees learning the terms of the separation, or that agreement was even reached. Otherwise, it could open the floodgates to other employees seeking separation packages.
   
3. Secrets: A covenant as to the confidentiality of employer’s confidential and proprietary information.
   
4. Return of Property: A covenant that all corporate property has been returned, or will be returned by a date certain.
   
5. Transition: A promise to reasonably cooperate with the employer as to the transition of job duties and responsibilities.
   
6. No-rehire: A promise that the employee will not apply for any positions in the future, and that the company is not obligated to consider him or her for future employment. Because there is some risk that a clause such as this could be viewed as retaliatory, indemnification language is not a bad idea.
   
7. No Liability: A statement that the agreement is not an admission of liability.
   
8. Governing law, Jurisdiction, and Venue: An agreement as to the law that will govern the agreement, and the jurisdiction and venue in which one must file any lawsuit regarding a breach of the agreement.
   
9. Entire Agreement: An integration clause, stating that the written agreement is the parties’ entire agreement, that no other written or oral agreements exist, and that the parties may only amend the agreement in writing signed by all.
   
10. Voluntariness: An acknowledgement that the employee read and understands the agreement, and had sufficient time and an opportunity to consult with his or her own legal advisor prior to signing the agreement.
    

What else are people including in their separation and severance agreements? Readers, did I miss any?

---

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.

You deserve to be told who to vote for today … at McDonald’s

A McDonald’s franchisee in Canton finds itself in trouble this election season for including inside employees’ paychecks a pamphlet urging them to vote Republican. As if an employer’s inclusion of political literature with paychecks isn’t intimidating enough, the note stated, “If the right people are elected, we will be able to continue with raises and benefits at or above the current levels. If others are elected, we will not.”

These actions likely violate a little-known Ohio law that prohibits an employer from influencing the political opinions or votes of employees. O.R.C. § 3599.05 provides:

No employer or his agent or a corporation shall print or authorize to be printed upon any pay envelopes any statements intended or calculated to influence the political action of his or its employees; or post or exhibit in the establishment or anywhere in or about the establishment any posters, placards, or hand bills containing any threat, notice, or information that if any particular candidate is elected or defeated work in the establishment will cease in whole or in part, or other threats expressed or implied, intended to influence the political opinions or votes of his or its employees.

The lesson is simple—keep politics out of the workplace. It’s divisive, makes employees uncomfortable, and, at least in this instance, illegal.

For more on the intersection between election day and the workplace, see Time off to vote on election day.

[Hat tip: The Word on Employment Law with John Phillips and Joe’s HR and Benefits 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.

Is it illegal to ask employees to promise not to sign union authorization cards?

While the Employee Free Choice Act has stalled in Congress, it does not mean that it is no longer newsworthy. For example, tomorrow, four states (Arizona, South Carolina, South Dakota, and Utah) will have ballot measures aimed at preventing the EFCA from being implemented on a state level.

For more evidence of the continued relevancy of the debate over the ECFA, consider the case of Regis Corp. The NLRB issued a complaint against Regis as a result of allegations that it asked its employees to sign a document revoking their future right to form a union by using an authorization card. According to Regis, the purpose of the document was to protect the workers’ ability to vote in a secret ballot election. Regis also contends that the agreement was completely voluntary—up to 20% of its workers have refused to sign it and none have been terminated. Yet, five employees complained to the NLRB that they felt their jobs were at risk if they didn’t sign the form, or who said they lost jobs because they questioned it.

Last week, the NLRB issued a complaint against Regis as a result of the secret ballot pledge:

The NLRB today issued a complaint against Minneapolis-based Regis Corporation … alleging it illegally solicited employees to promise in writing that they would not sign union authorization cards in the future.

The complaint also alleges that, in a DVD played to employees across the country, the company’s Chief Executive Officer warned that hair stylists would be blacklisted from the industry if they supported a union. In the recording, he exhorted employees to sign a “Protection of Secret Vote Agreement”, which would prospectively revoke any union authorization cards signed in the future. The complaint further alleges that a district manager threatened employees with job loss if they refused to sign the agreement.

The alleged events occurred in the fall and winter of 2009-2010, at a time when legislation was pending in Congress that would have required employers to recognize a union if a majority of employees signed authorization cards. It has not been enacted.

I have not done the research to conclude whether Regis’s pledge is legal or illegal. But, as this case illustrates, under the current pro-labor NLRB labor practices that come close to the line scrutinized before being put into practice. As the NLRB is currently constituted, this federal agency is a hostile audience for employers accused of anti-union measures. When dealing with labor unions or employee concerted activities, employers should view their measures through the same labor-tinted glasses as will the NLRB.

---

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.