Ohio Employer's Law Blog

WIRTW #102

2009-11-06T09:05:00.001-05:00

I'm in Washington D.C. at the ABA's annual Labor & Employment Conference. Consequently, my post paying off my debt to Dan Schwartz genuflecting before the alter of the New York Yankees is delayed until Monday. In the meantime, enjoy the best of this week's posts from elsewhere around the web.

Thanks to Molly DiBianca for again including me in her yearly list of the top Employment Law Blogs. Her list (and her entire blog, for that matter) is an excellent resource for employers.

The U.S. Chamber of Commerce this week launched its Small Business Nation web portal. The Chamber describes it as a “community … founded on the open exchange of information and ideas, while creating the opportunity for small businesses to speak with a unified voice” to bring “together America’s small businesses” and “strengthen individual endeavors while amplifying the collective voice of business.” For my time, it’s best feature is its Toolkits, a bunch of informational mini-sites for small businesses. Spend 10 minutes clicking through the Employer Toolkit for general information on payroll, benefits, employment rules, and employee discipline and termination.

From Steven Greengrass at the New York Times – Lack of Paid Sick Days May Worsen Flu Pandemic. On the same topic, Dan Schwartz has info on recently introduced federal paid sick leave legislation.

Walter Olson’s Overlawyered reports on the ballsiest employment discrimination defendant of all time. And, he won.

World of Work offers some insight on how to avoid age discrimination.

Paul Secunda, at the Workplace Prof Blog, asks whether the EEOC is unfairly attacking employers.

The Word on Employment Law with John Phillips takes a look at David Letterman’s production company’s sexual harassment policy.

During the Bush administration, a two-member NLRB issues a lot of employer-friendly decisions. The Supreme Court had agreed to review the legality of those plurality decisions, as Michael Fox, at Jottings By An Employer’s Lawyer, reports.

Patrick Smith, at the Iowa Employment Law Blog, offers some timely information on what employers can do about H1N1.

Victoria Pynchon’s Settle It Now Negotiation Blog takes a look back to 1938, when it was legally to openly deny jobs to women because their gender.

The Washington DC Employment Law Update lists OSHA’s top 10 safety violations for 2009.

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.

Context is key in employment cases

2009-11-04T09:23:00.000-05:00

The Phillies stand on the precipice of elimination as they head into Game 6 tonight. And, if Pedro Martinez can turn back the clock 10 years for one more start, the Phils’s likely Game 7 starter, Cole Hamels, has some ’splainin’ to do. After the Game 4 loss, Hamels, who has failed to live up to the successes of his 2008 campaign, was quoted as follows: “I can't wait for it to end. It’s been mentally draining. It’s one of those things where, a year in, you just can’t wait for a fresh start.” What’s missing from all of the press coverage lambasting Cole for quitting on his team is that his quote was taken from a 20-minute interview in which he begged for the ball in game 7 to atone for his poor game 3 performance.

Folks, context is key. If we, as lawyers, are doing our jobs correctly, however, context is often missing, obscured, or spun beyond recognition. Take, for example, an age discrimination case in which an executive says, “I always take age into consideration when I make a personnel decision.” That’s a pretty damning statement for an employer. Yet, it’s easy to understand the harmlessness of that statement when it’s taken in context. Maybe that executive doesn’t intend any age-based animus, but, being 65 years old herself, equates age with experience and wants to make sure she hires the most experienced person. Thus, in the quest to testify honesty, she answered “yes” to a damning cross-examination question.

The problem for you, as an employer defending a discrimination lawsuit, is that you often will not have the opportunity to give the explanation and provide the context until much later in the case. The statement likely will be elicited during the plaintiff’s case through careful cross examination. You will not have the opportunity to rehabilitate that witness and have her explain the statement until you recall her as part of your case, likely several days or weeks later. By then, the damage is done. Employment cases often turn on one key fact. In an age case, such an admission by an executive can be that one key fact that results in a plaintiff’s verdict.

The lesson for you, the employer, is this – even the most innocuous statement, when taken out of context, can be perceived as a damning admission. When dealing with problem employees, we must carefully parse and choose our words. Those that are used carelessly will come back to haunt us, even if the intent means no harm.

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? Promissory estoppel versus at-will employment

2009-11-03T08:52:00.000-05:00

In Ohio, the default rule governing employment relationships is employment at-will. Under at-will employment, unless otherwise agreed, either the employer or the employee can terminate the employment relationship at any time and for any reason. Promissory estoppel is one exception to the general rule of at-will employment. It is defined as “a promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise.” In layman’s terms, if it is unfair or unjust to permit a party to back out of definite promise because of some reasonable action taken by the other party on that promise, then the court will enforce the promise like a contract. To prevail on a promissory estoppel claim, a plaintiff must show:

the existence of a clear and unambiguous promise
upon which one would reasonably and foreseeably rely, and
the plaintiff actually relied on the promise
to plaintiff’s detriment.

According to Ohio law, to overcome the presumption of at-will employment, the promise not only must be sufficiently clear and unambiguous, but also must promise continued employment for a specific period. An employee cannot rely upon promises of an indefinite duration, promises of any otherwise nebulous nature, or generalized representations about the employee’s job performance.

Even if you avoid promising employees jobs for a definite period of time, a terminated employee can still try to claim reliance on some other statement or promise. The best defense against an employee claiming promissory estoppel based on some oral statement made by a manager is a clearly worded disclaimer in an employee handbook. Disclaimers should cover the following issues:

Setting forth that all employees are at-will;
Describing what at-will employment means;
Stating that no one has the authority to enter into any agreement altering that at will-relationship; and
That is not reasonable for any employee to rely on any statement by anyone to the contrary.

With such a disclaimer signed by an employee, any reliance by that employee on any promise or statement will likely be found to be unreasonable.

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.

Million dollar verdict underscores the dangers of retaliation claims

2009-11-02T11:07:00.000-05:00

Antonia Susel claimed that her employer, Dix & Eaton, fired her after she alleged that her boss wanted to replace her with a man nearly half her age. Ms. Susel pursued numerous claims, included age and gender discrimination. Last week, a Cuyahoga County jury ruled in favor of Dix & Eaton on four of the five claims. The sole count on which Ms. Susel won – retaliation – brought with it a $1,032,000 verdict. Even though Dix & Eaton replaced Ms. Susel (age 59) by a 32-year-old man after she informed her boss that she did not intend to retire until age 66, the jury did not believe that her age or her gender motivated her termination. According to Ms. Susel’s attorneys (as reported by Olivera Perkins at cleveland.com), she was fired five months after she “went to the human resources manager … and said she felt she was being set up for a wrongful discharge because of her age.” That allegation netted her a $1 million verdict.

This verdict illustrates the risk posed by retaliation liability. No employee is bullet proof; merely lodging a complaint about discrimination does not guarantee a job-for-life. But, if you plan on firing an employee who has complained about discrimination or engaged in some other protected activity, make sure that you are protected by having performance problems or other legitimate grounds for the termination documented before the internal complaint.

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 #101

2009-10-30T08:39:00.000-04:00

Walter Olson’s Overlawyered brings us the most instructive story of the week – if a jury asks for a “ten-digit adding machine to assist in their deliberations,” the defendant best start thinking long and hard about settlement.

Molly DiBianca, at the Delaware Employment Law Blog, on a court’s rejection of a monkey as an ADA-qualifying service animal.

The Word on Employment Law with John Phillips uses last week’s two biggest news stories – balloon boy and the sleeping pilots – to teach a lesson on employee discipline.

Marcia McCormick, at the Workplace Prof Blog, discussing a case filed by a witch claiming religious discrimination.

Sindy Warren, at the Warren & Hays Blog, suggesting that managers and their employees should not be “Facebook friends.”

Michael Maslanka’s Work Matters gives some dos and don’ts for the ADA’s reasonable accommodation interactive process.

Kris Dunn, The HR Capitalist, thinks employers can learn a lot from how ESPN handled the Steve Phillips situation.

Dan Schwartz, at the Connecticut Employment Law Blog, on the Arbitration Fairness Act and its potential effect on the future of arbitration clauses in employment agreements and collective bargaining agreements.

Christopher McKinney’s HR Lawyer’s Blog discusses a lawsuit recently filed by the EEOC in which it is seeking protection under the ADA for a pregnancy-related condition.

Employment Law Matters cautions employers with a third shift that this weekend’s switch to standard time could result in having to pay an extra hour of work to employees caught in the change.

Mary Keating’s Maryland Employment Law Developments shows how a desire for a more “energetic” employee can be viewed as evidence of age discrimination.

Wage & Hour Counsel illustrates the more aggressive tactics being taken by the Obama Department of Labor in wage and hour cases.

Finally, BLR’s HR Daily Advisor relates 6 lessons of successful management drawn from a former Walt Disney World Executive.

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.

New EEO poster required for all employers with 15 or More employees

2009-10-29T08:33:00.000-04:00

Federal law requires all employers covered by the federal anti-discrimination laws (those with 15 or more employees) to post multilingual notices describing the federal laws against job discrimination. To account for two new laws – the Genetic Information Non-Discrimination Act and the ADA Amendments Act – the Equal Employment Opportunity Commission has updated its mandatory posting. Employers have two options to comply with this new requirement, both of which are available on the EEOC’s website at www.eeoc.gov/posterform.html:

Print out and post a supplement to their existing “EEO is the Law”; or
Print and post the EEOC new poster.

Alternatively, employers can order up to 10 copies of the poster, free of charge, from the same EEOC site linked above. If you need more than 10 copies, that same website has the address and phone number of the EEOC Clearinghouse to contact.

The new posting is mandatory effective November 21, 2009.

[Hat tip: World of Work]

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.

World Series wager – the response

2009-10-28T13:46:00.000-04:00

Dan Schwartz’s response to my post from this morning discussing our friendly wager: Revisiting Derek Jeter’s Contract and a World Series Challenge. Dan correctly brings up yet another reason to root for the Phils – 10,000 losses vs. 26 World Series wins. We might be the defending champs, but we are definitely the underdog, and who doesn’t love an underdog?

A World Series wager

2009-10-28T08:43:00.000-04:00

Anyone who knows me or who’s been a faithful reader knows that I grew up in Philly and avidly root for all of its teams. Fellow employment law blogger Dan Schwartz (of the Connecticut Employment Law Blog) has a similar affection for his New York teams. For our two blogs, tonight’s World Series is the perfect storm, which has led to the following wager – the loser has to write a post on his blog praising the winning team (with an employment law spin, of course).

Other than reading Dan’s praise of the Phillies, here are 5 reasons to root for the Fightins’:

Win one for Harry: If you wonder why the Phillies are wearing an “HK” patch on their uniforms, it’s for Harry Kalas. Harry the K was the long-time beloved and revered Phillies Hall of Fame broadcaster who died at the beginning of the season. If you’re not from Philly, you probably know him better as the baritone yet lilted voice of NFL Films. He’s also noted for his stirring renditions of the Sinatra classic High Hopes, which the Phillies now play in his honor after home wins.
Blue collar versus white collar: The Phillies personify Philly’s hard-working, blue collar attitude, and work hard for everything they have. The Yankees are effete spoiled rich kids playing in their new $1.5 billion dollar playground, and are expected to succeed because of how much money they spend. Who do you better relate to?
Charlie Manual: Cleveland ran him out of town because he talks like a bumpkin who doesn’t know what he’s doing. As it turns out, he’s forgotten more about baseball than most know. He’s one of the genuinely good guys in sports. A second ring would likely punch his ticket to Cooperstown and seal his legacy.
Steroids: These are two of the most potent offenses ever to match up in a World Series. But, only one lineup has a star player who’s admitted to using performance enhancers. The Phillies sluggers have always done it naturally.
The evil empire factor: The Yankees? Again? Really? It’s like rooting for the Third Reich to win WWII. Sure, the Germans were rooting for their home team, but was anyone else?

Dan, my readers and I look forward to what you have to say about the Phillies after the series is over.

Meanwhile, try not to get a little misty while Harry the K serenades a 2008 playoff pep rally with High Hopes.

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.

FMLA’s military leave provisions to be amended today

2009-10-27T13:30:00.000-04:00

When President Obama signs the National Defense Authorization Act of 2010 this afternoon, he will make some key changes to how the FMLA covers military leave. Carl Bosland at the FMLA Blog summarizes the details, which expand the coverage and availability of military family leave. The Act’s changes include:

Expanding military caregiver leave to veterans, by extending the 26 weeks of FMLA leave to family members of veterans to cover illnesses or injuries for up to 5 years after a veteran leaves active duty.
Expanding qualifying exigency leave to cover eligible family members of active-duty service members, and not just family members of those called up to the National Guard or Reserves.

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? Handling employees with suspected swine flu

2009-10-27T09:02:00.000-04:00

The President has officially declared H1N1 a national emergency. Hyperbole aside, it is estimated that as many as 60% of the U.S. population will contract the H1N1 virus this flu season. If these numbers are even close to being correct, then it is almost guaranteed that the swine flu will impact your workplace. The CDC offers the following 10 tips for handling H1N1 in your workplace:

Develop policies that encourage ill workers to stay at home without fear of any reprisals.
Develop other flexible policies to allow workers to telework (if feasible) and create other leave policies to allow workers to stay home to care for sick family members or care for children if schools close.
Provide resources and a work environment that promotes personal hygiene. For example, provide tissues, no-touch trash cans, hand soap, hand sanitizer, disinfectants and disposable towels for workers to clean their work surfaces.
Provide education and training materials in an easy to understand format and in the appropriate language and literacy level for all employees.
Instruct employees who are well but who have an ill family member at home with the flu that they can go to work as usual. These employees should monitor their health every day, and notify their supervisor and stay home if they become ill. Employees who have a certain underlying medical condition or who are pregnant should promptly call their health care provider for advice if they become ill.
Encourage workers to obtain a seasonal influenza vaccine, if it is appropriate for them according to CDC recommendations. This helps to prevent illness from seasonal influenza strains that may circulate at the same time as the 2009 H1N1 flu.
Encourage employees to get the 2009 H1N1 vaccine when it becomes available if they are in a priority group according to CDC recommendations. Consider granting employees time off from work to get vaccinated when the vaccine is available in your community.
Provide workers with up-to-date information on influenza risk factors, protective behaviors, and instruction on proper behaviors (for example, cough etiquette; avoid touching eyes, nose and mouth; and hand hygiene).
Plan to implement practices to minimize face-to-face contact between workers if advised by the local health department. Consider the use of such strategies as extended use of email, websites and teleconferences, encouraging flexible work arrangements (for example, telecommuting or flexible work hours) to reduce the number of workers who must be at the work site at the same time or in one specific location.
If an employee does become sick while at work, place the employee in a separate room or area until they can go home, away from other workers. If the employee needs to go into a common area prior to leaving, he or she should cover coughs/sneezes with a tissue or wear a facemask if available and tolerable. Ask the employee to go home as soon as possible.

For other information on dealing with H1N1 in your workplace, flu.gov has a wealth of resources, including a small business guide, a communication toolkit, guidance from the EEOC, and a business pandemic planning checklist.

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.