Ohio Employer's Law Blog

WIRTW #213 (the “Hello Cleveland!” edition)

2012-02-17T07:45:00.000-05:00

Above the Law (c/o the Chicago Sun-Times) reports that Justice Scalia offered the following words of wisdom while speaking to a group of students at the University of Chicago School of Law:

Try to find a practice that enables you to maintain a human existence … time for your family, your church or synagogue, community … boy scouts, little league…. You should look for a place like that. I’m sure they’re still out there. Maybe you have to go to Cleveland.

Readers, introducing the next spokesperson for Positively Cleveland, United States Supreme Court Justice Antonin Scalia.

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

Discrimination

Age Discrimination Suits Jump, But Wins Are Elusive — from NPR’s Morning Edition
Employee is Not “Substantially Limited” Under the ADA When He is Able to Work a 40-Hour Week But No Overtime — from Employment Matters Blog
All You Need Is … A Sexual Harassment Complaint — from Dawn Lomer at i-Sight Investigation Software Blog
A Valentine's Day bouquet of sexual harassment cases — from Robin Shea’s Employment and Labor Insider
Lawsuit Alleges Sexual Harassment at Breastaurant. Again. — from Tim Eavenson’s Current Employment
Plaintiff’s Repeated “I Don't Know” in Depositions Are Claim Killers — from Russell Cawyer’s Texas Employment Law Update
Hoops, Race and Workplace Stereotypes: Why I’m Ordering a Jeremy Lin T-Shirt Today… — from The HR Capitalist, Kris Dunn
New Approaches to Understand Why Women Earn Less — from Stephanie Thomas’s Proactive Employer Blog

Social Media & Workplace Technology

Are Your Employees Committing Thought Crimes? — from Frank Roche’s KnowHR Blog
Tracking Employees By GPS: Better Have a Good Policy — from Mike Haberman’s Omega HR Solutions
I’m unPinterested — from Tim Sackett at Fistful of Talent
Protecting Trade Secrets and Confidential Information In The Social Media Generation — from Trading Secrets
Teacher “Hates” Students on Facebook, Lies, Jokes About Child's Death - Reinstated! — from Phil Miles’s Lawffice Space
What The Internet Knows About You And How To Protect Yourself — from Forbes

HR & Employee Relations

26 Years on the Job and Not One Sick Day — from the Wall Street Journal
Hi boss — I’m too bored … er, sick … to come in fr— from om Today Money
Rogue Employee of the Week – The case of the lunchtime drunk — from damnedif
Nepotism Is Not Illegal — from Donna Ballman’s Screw You Guys, I’m Going Home
Suck it, Cupid. You don’t work here! — from Michael VanDervort’s The Human Race Horses
No-Hire Tobacco Policies: Why They Are a Communication and Cultural Challenge — from TLNT
The Four Questions to Ask Before Changing to PTO — from HR Daily Advisor
Would you get a divorce in order to telecommute? — from Evil HR Lady, Suzanne Lucas
Working from Home More Important than Showering & Spouses — from Jessica Miller-Merrell’s Blogging4Jobs
10 Things Bosses Never Tell Employees — from Inc.com

Wage & Hour

Annals of wage and hour law — from Walter Olson’s Overlawyered
DOL Proposes Significant Changes to the Home Health Care Industry — from BLEG Blog
Federal Judge Enjoins Alleged Retaliatory Group Termination of Warehouse Workers — from Wage and Hour Law Update
“Linsanity” for Employers to Fail to Post Required Notices — from Dan Schwartz’s Connecticut Employment Law Blog
New FMLA Certification Forms Available from DOL — from Smart HR Manager
The wrong way and the right way to request FMLA certification — from Eric Meyer’s The Employer Handbook Blog

Until next week:

Latest stats about supervisors being “Facebook friends” with employees reveals interesting generational data

2012-02-16T08:00:00.001-05:00

ZDNet’s Friending Facebook blog reports on a survey [pdf] conducted by marketing agency Russell Herder, which concluded that 21% of employees are Facebook friends with the boss. I’ve written before about some of the risks, and some of the benefits, that germinate from taking workplace relationships online into the social sphere. Those issues haven’t changed.

There’s a lot of interesting data in the report. At 9 pages, it’s definitely worth your reading time. The data that I found to be the most interesting deals with the impact of an employee’s age on the opinion of online relationships between managers and employees:

Only 28% of employees ages 18-34 believe it is inappropriate to friend their supervisor on Facebook. The number rises to nearly 50% for those ages 45 and up.

These numbers confirm what I’ve long believed—that generational differences in attitudes about the role of technology in our daily lives exponentially complicates employers’ ability to regulate the use of social media in the workplace. To effectively implement a social media policy in your organization, you will have to account for (and solve) this generational divide.

What is an employee’s word for the need for FMLA leave worth? Not much

2012-02-15T08:08:00.000-05:00

How often does this scenario play out in your organization? An employee tells a supervisor that he’s sick and needs to take FMLA leave. The supervisor refers the issue to HR or management. Paralyzed out of fear that they will screw up an FMLA process that they really doesn’t understand, they approve the FMLA leave with no other questions asked.

Because of a fundamental misunderstanding of when employees qualify for FMLA leave, lots of employers over-compensate when dealing with employee medical issues and the FMLA. They over-compensate by mistakenly assuming that any employee with any illness or medical condition is FMLA-eligible. In reality, only an employee with a “serious medical condition” qualifies for FMLA-leave.

In reality, you do not have to take an employee at his or her word that he or she needs FMLA leave. Case in point? Huberty v.Time Warner Entertainment Co. (N.D. Ohio 2/8/12).

Huberty claimed that Time Warner interfered with his rights under the FMLA when it fired him after he asked his supervisor for time off to deal with “stress in his life.” Before Huberty found a doctor to certify his medical condition, he began taking time off. Time Warner terminated Huberty for violating its no-call/no-show policy for three consecutive days.

The court dismissed Huberty’s FMLA claim, concluding that neither his own subjective assessment of his health did not satisfy his burden to establish a “serious health condition.”

There is an abundance of case law that makes it clear that Huberty’s own subjective assessment of his health cannot be used to demonstrate a serious health condition. A colleague on this Court has noted as follows with respect to this burden:

It does not mean that, in the employee’s own judgment, he or she should not work, or even that it was uncomfortable or inconvenient for the employee to have to work. Rather, it means that a “health care provider” has determined that, in his or her professional medical judgment, the employee cannot work (or could not have worked) because of the illness. If it were otherwise, a note from a spouse, parent, or even one’s own claim that one cannot work because of illness would suffice. Given the legislative history surrounding its enactment, the FMLA cannot be understood to establish such liberal standards for its application.

What does this mean for your management of your employees’ FMLA leave? Don’t just take your employees at their word that they need FMLA leave. You have an absolute right to request and receive a timely medical certification before certifying a leave of absence as FMLA-qualifying. Do not short-circuit your rights by rubber-stamping every employee medical request as “FMLA.”

Nothing can go wrong when employees date each other, right?

2012-02-14T08:02:00.000-05:00

In honor of Valentine’s Day, I bring you a story of love, romance … and sexual harassment (what else?).

Sanders v. DaimlerChrysler Corp. starts out like any great love story. Girl meets boy on the assembly line of the local automobile plant. They date for two years. Then, she tells him she doesn’t want to continue their relationship. How does boy respond? Like any alleged harasser, he says, “I can do something to your job.” And, she takes him at his word (he’s a union steward after all). When she has job-related issues returning from a medical leave, she sues the company for, among other things, sexual harassment. Ultimately, this story ended well for the employer; it won the case at trial. But, it cost the company seven years of litigation, more than a dozen depositions, countless motion practice, a costly trial, and a trip to the court of appeals.

I’m not here to tell you that you should forbid your employees from dating. Far from it. The heart is going to go where the heart wants to go. In other words, if your employees want to date, they will — with or without a policy forbidding their relationships and dalliances. Instead, look at workplace romances as an opportunity to educate your employees about the ins and outs of your harassment policy. Train your employees about what is and is not appropriate workplace conduct between the sexes. Focusing on conduct (and misconduct) instead of the relationships will provide your employees the necessary tools to avoid the types of problems that arose in Sanders, which, in turn, will help your organization avoid the litigation expenses those problems often cause.

Happy Valentine’s Day

[Link]

Let’s try not to over-react to the breastfeeding discrimination case

2012-02-13T08:12:00.000-05:00

Last month, I wrote that employers denying lactation rights to employees was not problem that needed remedial legislation. Wouldn’t you know it, news broke last week of a federal judge in Houston who dismissed a sex discrimination case—EEOC v. Houston Funding [pdf]—in which the employee alleged that she was fired because she asked to pump breast milk at work.

Here’s the court’s entire analysis dismissing the lawsuit:

The commission says that the company fired her because she wanted to pump breast milk. Discrimination because of pregnancy, childbirth, or a related medical condition is illegal….

Even if the company’s claim that she was fired for abandonment is meant to hide the real reason — she wanted to pump breast milk — lactation is not pregnancy, childbirth, or a related medical condition.

She gave birth on December 11, 2008. After that day, she was no longer pregnant, and her pregnancy-related conditions had ended. Firing someone because of lactation or breast-pumping is not sex discrimination.

Before I put on my employer-advocate hat, let me go on record and say that the last I checked, women are the only gender that can naturally produce milk, and therefore denying a woman the right to lactate is sex discrimination.

This decision has people angry. As of this morning, the case’s online docket reflects that 12 private non-parties have emailed the judge calling her ruling “shameful” and “absurd” (among other similar pejoratives).

Before people over-react and scream from the rooftops for remedial legislation to clarify that lactation discrimination equates to sex discrimination, one case does not make a rule. In fact, it is much more likely that one case is merely an aberration. I stand by my conviction that 1) Title VII’s prohibitions against sex and pregnancy discrimination adequately cover the rights of working moms to lactate; and 2) we do not need any additional legislation (on top of the Patient Protection and Affordable Care Act) to further to protect this right (EEOC v. Houston Funding notwithstanding).

For additional analysis of this case, I suggest checking out the thoughts of some of my fellow bloggers from last week:

Does Federal Law Prohibit Lactation Retaliation? — from the Delaware Employment Law Blog

Lactation and Nursing Is a Civil Rights Issue — from Outten & Golden Employment Law Blog

Lactation Is Not Caused By Pregnancy or Childbirth, Says Judge — from Screw You Guys, I'm Going Home
Lactation not Related to Pregnancy, Says Federal Judge — from San Antonio Employment Law Blog

Expressing Milk Under Title VII and the PPACA — from LaborRelated

Lactation is Not a Condition Related to Pregnancy Says S.D. Tex. — from Workplace Prof Blog

WIRTW #212 (the “something for nothing” edition)

2012-02-10T09:03:00.000-05:00

One of the benefits of hitting the road to speak as much as I do is all of the great people I meet. One of those people is Jessica Miller-Merrell, who authors the fabulous HR blog, Blogging4Jobs. On February 21 I, along with Mike VanDervort (author of The Human Race Horses) will guest on a free webinar Jessica is presenting, Understanding Unions, NLRB, & Corporate Social Media:

This session provides a broad overview for senior business leaders (and not just HR) regarding the recent legislation surrounding social media, the NLRB, and strategies for how company leaders can maneuver and monitor employee activity on social networking sites. Learn best practices how to manage and discipline your employees, create policies, and awareness throughout your organization.

I’ll be addressing the NLRB’s latest attempts to regulate employer restrictions on employees’ use of social media, in and out of the workplace. The webinar will run from 12:00 to 1:30 pm on February 21, and registration is free.

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

Discrimination

Refusal to Rescind Resignation is Not an Adverse Employment Action — from Phil Miles’s Lawffice Space
Attractiveness A (Dis)Advantage In The Workplace? — from The Proactive Employer Blog
10th Circuit Holds Migraines Not a Disability Under the ADA — from Randy Enochs’s Wisconsin Employment & Labor Law Blog
Disparate Impact – Why Mobile Matters — from Heather Bussing at HR Examiner
The changing definition of a covered disability — from Work Matters
An Employer’s Playbook for Responding to an Allegation of Sexual Harassment — from Jason Shinn’s Michigan Employment Law Advisor
Retaliation Redux: Two cases that should scare employers a lot — from Robin Shea’s Employment and Labor Insider
The first question the EEOC asks — from Warren & Associates Blog

Social Media & Workplace Technology

Facebook addiction explained: study shows psychophysiological arousal from social media — from Boy Genius Report
GSMI’s Social Media White Paper Now Available — from Social Axcess
The so-called “privacy” of employee emails — from Eric Meyer’s The Employer Handbook Blog
BYOD in the Modern Workplace — from i-Sight Investigation Software Blog
Privacy Advice Potpourri: Don’t Lose Your iPhone, Don’t Consider Anything On Your Work Computer Private, and Do Wonder About Mysterious ‘Dings’ On Your Conference Call — from Kashmir Hill’s The Not-So Private Parts
Pinterest accused of replacing external affiliate links with its own — from The Verge

HR & Employee Relations

Workplace Investigation Pitfall: Failure to Take the Complaint Seriously — from Strategic HR Lawyer
Home Alone, Telecommuting, and Man’s Best Friend — from Fitzpatrick on Employment Law
Should I rat out my boss? — from Evil HR Lady, Suzanne Lucas
Keeping Everyone Safe in the Workplace — from Robin Schooling’s HR Schoolhouse
Do You Love Love Contracts? — from Mark Toth’s Manpower Employment Blawg
Nepotism Is Not Illegal — from Donna Ballman’s Screw You Guys, I’m Going Home

Wage & Hour

(FMLA) Form Over Function — from Delaware Employment Law Blog
4th Circuit: FLSA Prohibits Retaliation For Internal Complaints — from Wage & Hour Insights
When Is An “Intern” An Employee Under The FLSA? — from Wage & Hour - Development & Highlights
Overtime for Nannies — from Jim Brennan at Compensation Cafe
The Danger of Unpaid Interns — from Overtime Advisor

Labor Relations

The Fallout from the Latest NLRB Salvo on Social Media — from Dan Schwartz’s Connecticut Employment Law Blog
U.S. Chamber of Commerce and National Labor Relations Board File Competing Summary Judgment Motions in “Quickie” Election Rule Case — from Seth Borden’s Labor Relations Today
New “Right-to-Work” Law- A Test for Union Clout? — from Mike Haberman’s Omega HR Solutions

What isn’t a “complaint” under the FLSA? An Ohio federal court weights in

2012-02-09T08:30:00.000-05:00

In Kasten v. Saint-Gobain Performance Plastics, the United States Supreme Court concluded that the anti-retaliation provision of the Fair Labor Standards Act covers oral complaints — but only if they are “sufficiently clear and detailed for a reasonable employer to understand it, in light of both content and context, as an assertion of rights protected by the statute and a call for their protection.” The issue of what qualifies as a “clear and detailed … assertion of rights” was front and center in Riffle v. Wal-Mart Stores, Inc. (N.D. Ohio 1/24/12).

In Riffle, the only complaints the plaintiff made to her Wal-Mart supervisors were complaints about receiving telephone calls she received at home from co-workers who needed assistance in the cash office. The court concluded that the complaints did not satisfy the threshold established in Kasten.

Plaintiff’s complaints … are insufficient because they are not framed in terms of an FLSA violation as required by Kasten. The complaints plaintiff testified she made to her supervisors could not have reasonably been perceived by defendants as a complaint that plaintiff was not being paid in accordance with the requirements of the FLSA or that defendants otherwise violated the FLSA.

Following Riffle, employers have some guidance as to the types of communications that do not qualify for protection under the FLSA’s anti-retaliation provision. Figuring out what does qualify will prove trickier, and will take years of cases and judicial opinions to sort out.

In the meantime, try not to do the following to your employees who engage in some protected activity:

[Link to YouTube video for those reading in an email]

Another consideration in the high cost of wage and hour litigation: e-discovery

2012-02-08T08:15:00.000-05:00

I’ve written before about the high risks companies face from wage and hour class/collective lawsuits (here’s one example). Here’s another factor to consider: the exorbitant costs imposed by e-discovery and employers’ obligations to preserve electronic records.

Workplace Prof Blog brings us the story of Pippins v. KPMG, a wage and hour collective action alleging that the accounting firm deprived its Audit Associates of overtime wages. Before the class was even certified, the court imposed upon KPGM the obligation to preserve the potential class members’ more-than 2,500 laptop hard drives. Following certification, KPMG argued that instead of preserving all of the hard drives—at an astounding cost of more than $1.5 million—it should only be required to keep a representative sample comprised of the named plaintiffs.

The court disagreed:

Based on Plaintiff’s recollections regarding their former hard drives, I agree with [Magistrate] Judge Cott that the hard drives are likely to contain relevant information. The information on the hard drives will likely demonstrate when the Audit Associates were working (hours) and what they did while at work (duties). This information is obviously relevant in a case asserting violations of the FLSA … since Plaintiffs need to establish what type of work they performed in order to prevail on the merits, and how many hours a week they worked in order to collect damages….

I gather that KPMG takes the position that the only Audit Associates who are presently “parties” are the named plaintiffs, and so only the named plaintiffs’ hard drives really need to be preserved. But that is nonsense…. [T]he duty to preserve all relevant information for “key players” is triggered when a party “reasonably anticipates litigation.” At the present moment, KPMG should “reasonably anticipate” that every Audit Associate who will be receiving opt-in notice is a potential plaintiff in this action.

What are the lessons for employers?

When considering the goofy costs (and risks) of wage and hour non-compliance, you not only have to factor in unpaid wages, liquidated damages, your legal fees, and the employees’ legal fees, but also the costs of preserving all of the electronic information the plaintiffs will seek in discovery. Like most employment cases, there exists a palpable disparity in the ownership of information. Employers possess most of the relevant information, and therefore carry most of the costs in the retention and production of documents.
To guard against these goofy costs, audit your wage and hour practices. ’Tis better to spend a few thousand dollars up front to gain knowledge of which of the myriad wage and hour laws your company might be violating, than to spend a few hundred thousand (or a few million!) dollars later to defend against, or pay out on, a wage and hour class action. (Not that employers can't win these cases).

The digital divide and disparate impact

2012-02-07T07:55:00.000-05:00

According to statistics recently published by Mashable, the digital divide—those who are connected to the Internet versus those who are not—is partially racial. 72% of white homes are connected to the Internet, as compared to only 57% of Hispanic homes and 55% of African American homes.

These numbers mean that if you are using access to technology as a qualifying factor for employment, your hiring practices might have a disparate impact on Hispanics and African Americans. For example, do you only accept job application over the Internet? Or, do you only recruit via Monster.com or LinkedIn? Or do you only consider candidates whom you can vet via Facebook or some other digital footprint? If so, you might want to consider casting a wider net, unless remote technology access is truly job related and consistent with business necessity.

A pisser of an HR policy

2012-02-06T07:45:00.000-05:00

I’m a firm believer in good, sound, and comprehensive HR policies. They are necessary evil to establish the baseline expectations between a company and its employees. For example, they help avoid any confusion about the appropriate uses of email and the Internet. They also tell employees how many days-off they are allowed. And, in some cases, such as harassment and the FMLA, the law just flat-out requires them.

But, like all good things, HR policies can go too far. An example, you ask? How’s this one, courtesy of Above the Law. A San Francisco law firm issued an “Office Restroom Etiquette” policy, which included discussions on how much time to spend taking care of business, how to clean up, and what to do about certain natural odors and noises. It also offered some pointers for its male employees on what to do at urinals:

In urinals, keep your eyes up and ahead and avoid looking around as a mistaken glance in the wrong direction may be embarrassing and might even result in a confrontation. Also, keep as much distance between yourself and others in public restrooms. Always choose the urinal farthest away from other people if possible; this goes for stalls too.

Here’s another true story. I know someone who worked for a company at which the boss monitored employees’ every move via hidden cameras, including how often, and for how long, they visited the restroom. If your management has so much time on their hands that they need to involve themselves in employees’ bathroom habits, you might want to consider downgrading them to part-time status. They obviously do not have enough to fill their plates on a full-time basis.