Owner: Ohio Employer's Law Blog URL:ohioemploymentlaw.blogspot.com Join Date: Mon, 31 Dec 2007 11:01:49 -0600 Rating:0 Site Description: Practical employment law information for businesses in Ohio and elsewhere Site statistics:Click here
Court vindicates employer who turned a blind eye to a request for a reasonable accommodation 2008-04-24 06:00:00 Buboltz v. Residential Advantages, Inc., decided last week by the 8th Circuit, illustrates the important point that merely because an employee has a disability does not mean that an employer must make a reasonable accommodation. This case also highlights, however, the risks that employers assume when ignoring a potential request.
Buboltz is legally blind. Residential Advantage, Inc. ("RAI") provides residential services to disabled individuals who cannot live independently. It hired Buboltz as a direct service provider ("DSP"), meaning she was responsible for providing services to the residents. Part of a DSP's job is to provide transportation to the residents. As an accommodation for Buboltz's blindness, however, at the time of hire RAI exempted her from that job function. When her supe Read more:Court
, turned
What else I'm reading this week #28 2008-04-25 06:00:00 Allow me to start this week with some self-promotion. To the immediate right of this post is a sidebar entitled Subscribe. It uses technology called RSS (which is short for Really Simply Syndication). RSS will deliver daily updates of this blog directly to your PC, either in a feed reader (such as Google Reader, which I use and recommend), or to your email (no spam or unsolicted email, I promise). To fully understand RSS and how it will greatly simplify your web surfing and information gathering experience, please check out Dan Schwartz's excellent post on this topic at the Connecticut Employment Law Blog. If you want to receive daily updates on what is going on in the world of employment law in Ohio and elsewhere, please consider clicking the orange box to the right or entering your email
What are an employer's responsibilities to an employee taking FMLA intermittent leave? 2008-04-28 06:00:00 Intermittent leave continues to be the thorn in employers' sides in administering the FMLA. One key burden that intermittent leave puts on employers is covering an employee's work who is performing at less than a full schedule.
Lewis v. School Dist. #70, recently decided by the 7th Circuit, suggests it would be unlawful under the FMLA for an employer to consider an employee's use of intermittent leave when evaluating the employee's performance. Lewis took intermittent leave to care for her housebound chronically ill mother. The School District fired her during her period of intermittent leave because she had not completed all of her assigned responsibilities. The court believed that a jury could conclude that the District terminated her in retaliation for taking intermittent leave under
Harassment by radio station 2008-04-29 07:16:00 Reeves v. C.H. Robinson Worldwide, decided yesterday by the 11th Circuit, asked the following question:
Whether daily exposure to language and radio programming that are particularly offensive to women but not targeted at the plaintiff are sufficient to satisfy the "based on" and "severe or pervasive" elements of a hostile work environment claim.
The plaintiff was the only woman who worked in her area. On a daily basis, her male co-workers used a barrage of the foulest and most sexist language one could conjure. They also listened to a morning radio show
that was played every morning on the stereo in the office. Discussions of the following material on the show offended her: (1) breast size of female celebrities and Playboy Playmates; (2) sexual arousal and women's nipples as indica Read more:Harassment
Is exposure to generalized offensive comments enought to create a hostile environment? 2008-04-30 08:11:00 Yesterday, we examined Reeves v. C.H. Robinson Worldwide in discussing whether an employer has an obligation to ban the use of radios in the workplace to prevent harassment. Today, we'll look at the other interesting aspect of the case, whether conduct that is offensive to women, but not targeted at them, constitutes sexual harassment.
Reeves alleged that the following sexually offensive language permeated the work environment each and every day for nearly 3 years. Notably, Reeves did not allege that any of the offending conduct was directed at her specifically. Instead, it appears that she was subjected to the same crude language as her male co-workers.
For example, one of Reeves's co-workers frequently used sexually crude language that offended her, including:
Often using the phras Read more:create
Genetic Information Nondiscrimination Act clears Congress 2008-05-01 15:06:00 In news that surprises no one but is nonetheless significant, the House has passed the Genetic Information Nondiscrimination Act (GINA) by a vote of 414-1. It passed the Senate last week by a 95-0 margin. President Bush is expected to sign GINA into law shortly. Among other provisions related to health insurance coverage, the bill will make it illegal for employers to use genetic information in hiring, firing, or promotion decisions.
For information on GINA, take a look at today's AP wire story as reported by the New York Times. The full text of the bill, as passed by the House, is also available.
I'll have more on GINA's potential impact if and when President Bush signs it.Presented by Kohrman Jackson & Krantz
Read more:Congress
Further reflections on Reeves v. C.H. Robinson Worldwide 2008-05-01 06:50:00 I've been thinking a lot about the Reeves
case, because something about it just hasn't been sitting right with me. I think I've finally put my finger on it. When a female employee or women in general are not the target of the offensive conduct, finding that the harassment is "based on" sex because women are more likely to be offended by the conduct then men confuses the intent of the alleged harasser with whether the plaintiff welcomed the conduct.
To establish a prima facie case of sexual harassment, an employee must prove, among other factors, that the sexual harassment was unwelcome and that the harassment was based on sex. By injecting a gender's perceived sensitivities into the equation, the court makes the intent of the conduct irrelevant. In doing so, the Reeves court has essentia Read more:Further
, Robinson
, Worldwide
Everyone celebrate RSS Awareness Day 2008-05-01 06:42:00 Today is May 1, which only means one thing -- it's RSS Awareness
Day. For those of you who already subscribe to my feed, feel free to ignore this news. For those who don't, and either found me via a search engine, or maybe you just have me bookmarked and simply visit the site everyday, please click over to rssday.org and read about how subscribing to a blog's feed will greatly simplify your life. Then, please consider subscribing to the Ohio Employer's Law Blog to receive automatic updates of all of your employment law news.Presented by Kohrman Jackson & Krantz
The softer side of employment law 2008-05-02 14:40:00 Ellis v. United Parcel Service, decided this week by the 7th Circuit, is legally interesting in its dealing with the issues of interracial dating, race discrimination, and the ultimate lawfulness of UPS's termination of a manager for violating its nonfraternization policy. What's more interesting to me, though, is the Court's cautionary words on the issue of whether a nonfraternization policy makes good business sense:
In closing, we emphasize that our decision today should not be construed as an endorsement of the UPS nonfraternization policy. When a company like UPS runs expensive ads that ask "What can Brown do for you?" it might be wise for it to ask if this policy is really worth all of the fuss this case has created. As we observed in Hennessy v. Penril Datacomm Networks, Inc., 69 Read more:employment
Lawsuit illustrates potential problems with employee testing 2008-05-02 08:28:00 Today's Jackson (Tennessee) Sun is reporting that Kilgore Flares Co., a Tennessee defense weaponry manufacturer, has been hit with a class action lawsuit related to its neurological testing of hirees:
The class action lawsuit, filed on behalf of Robinette Anderson, states that the company uses a nerve test to determine who it hires. The test is supposed to determine the risk of potential employees' developing carpal tunnel syndrome, according to the suit.
The suit states Anderson was denied a position at the Toone plant after being tested. The suit also states the findings from these tests are "based upon unreliable measures." ...
"The country's leading scientists have concluded the nerve conduction exam has an exceptionally small, and often times wrong, predictive value for determin Read more:Lawsuit
, problems
What else I'm reading this week #29 2008-05-02 06:30:00 Just a quick heads-up for everyone that I will be taking next week off from regular blogging while I'm out of town in depositions. In my absence, and in anticipation of the blog's upcoming birthday, I plan on re-running some of the past year's best posts. New content will resume on May 12.
This week's review starts with a couple of wage and hour highlights. The aptly named Wage & Hour -- Developments & Highlights brings us the story of Fenway Park's food vendors, who have filed a class action for unpaid wages and overtime. Meanwhile, HR World reports that Quest Diagnostics has settled with the Department of Labor for $688,772 in overtime back wages regarding the misclassification of 238 employees as non-exempt.
Alaska Employment Law has an interesting bit about how one judge em
Best of -- Sixth Circuit confirms that it will not second-guess an employer's honest belief 2008-05-05 06:00:00 The following two SixthCircuit
decisions make it clear that pretext for discrimination or retaliation does not exist if the employer engages in a reasonable investigation and has an honest
and good faith belief
in the rationale for its employment decision. These cases are a good reminder that one of the best defenses to any discrimination, retaliation, or harassment claim is a thorough, well-documented investigation.
Michael v. Caterpillar Fin. Servs. Corp. concerned a six-year African-American employee who had a good employment record until her manager was replaced. Shonta Michael claimed that the discipline, including a very confrontational meeting in which the new manager aggressively yelled at her, was racially discriminatory and that she was retaliated against after she complained
Best of -- A Whopper of a Sex Harassment Claim 2008-05-06 06:00:00 One of the surest ways for a company to guard against harassment lawsuits is to have in place a reasonable mechanism by which a victim of harassment can complain to the company. In today's workplace, one would be hard pressed to find a company that does not have a harassment policy, either in its employee handbook or otherwise. It is not enough, however, merely to have complaint procedures in place. Those procedures much be understandable, workable, and meaningful for them to provide any protection to an employer. EEOC v. V & J Foods, out of the 7th Circuit, illustrates the important distinction between a complaint procedure that is or is not meaningful, and the consequences that can befall an employer with an unworkable system.
Samekiea Merriweather, 16 years old, worked afte Read more:Harassment
Best of -- Document, document, document 2008-05-07 06:00:00 As the record reflects, there was a myriad of problems with Plaintiff's job performance and treatment of his subordinates that justified Defendants' decision to fire Plaintiff. This, however, is not what Defendants told Plaintiff during their final meeting. Defendants did not tell Plaintiff he was being fired for poor performance, but rather because of an unspecified "personality conflict." While the law does not specifically require an employer to list every reason or incident that motivates its decision to terminate an employee, we are skeptical of undocument
ed accounts of employee conduct that may have been created post-termination. Under the facts of this case, however, ample evidence exists that indicates that Plaintiff's performance was inadequate to meet his job requirements. I
Best of -- Lessons from Childrens' Lit 2008-05-09 06:00:00
"Farmer Brown has a problem. His cows like to type. " So starts Click Clack Moo, Cows That Type, one of my soon to be two year old daughter's favorite books. In Click Clack Moo, Farmer Brown's cows and hens decide that they need electric blankets to keep warm at night in the barn. They deliver their demand to Farmer Brown on notes typed by the cows on a typewriter. When Farmer Brown refuses their demands, they go on strike, withholding milk and eggs. Ultimately, in a deal brokered by the duck, Farmer Brown agrees to accept the cows' typewriter in exchange for electric blankets. The labor dispute ended, and the cows and hens went back to producing milk and eggs. The deal backfired on Farmer Brown, though, as Duck absconds with the typewriter and leverages it into a diving board for the pon Read more:Lessons
, Childrens
Best of -- Use a wage and hour audit to proactively head off claims 2008-05-08 06:00:00 "Wage Wars: Workers are Winning Huge Overtime Lawsuits," graces the cover of this week's BusinessWeek magazine. It should serve as a harsh wake up call for all companies. The article cites recent huge wage and hour settlements and verdicts, including an $18 million settlement paid by Starbuck's and eight and nine figure jury verdicts against Wal-Mart. In fact, the article estimates that American companies have collectively paid over $1 billion to settle these types of claims
over the past few years.
The sweatshops of the 1920s and 1930s that led to the passage of the Fair Labor Standards Act and its 40-hour workweek are virtually non-existent. Nonetheless, claims for unpaid overtime continue to rise, more than doubling in the federal courts from 2001 to 2006. Almost always, these c
Overtime not required for time not actually worked 2008-05-12 07:07:00 One article that caught my eye last week while I was out was a piece by Tracy Coenen, on her Fraud Files Blog, about a scam that was uncovered in the Wisconsin prison system. It seems that under the prison's overtime policy, the guards figured out that they could call of sick for their own shift, but then pick up the next shift and collect time-and-a-half for overtime.
It appears that the Wiscon Read more:worked
What else I'm reading this week #30 2008-05-12 06:39:00 After an exciting week in Tulsa, Oklahoma, I have returned. I hope everyone enjoyed some of the hits from the archives I ran last week in my absence. Before we get back to regular posting, let's take a look at some of what else we missed last week.
Recall that in Dewitt v. Proctor Hosp., the 7th Circuit permitted an associational disability discrimination claim to proceed based solely on evidenc
Cat fight on aisle 6: court leaves open the possibility that a handbook can create a contract 2008-05-13 07:29:00 In White v. Fabiniak, Wal-Mart fired Carla White for threatening to "slap the piss" out of a co-worker, Stephanie Jeppe. Prior to the termination, White had used Wal-Mart's Open Door Policy to complain to her supervisor that Jeppe had been threatening her.
White was an at-will employee of Wal-Mart. At the start of her employment, Wal-Mart provided her an employee handbook that contained, among o Read more:fight
, aisle
, leaves
, possibility
, create
, contract
Do your policies cover electronic message boards 2008-05-15 08:43:00 The National Law Journal reports that "message boards in the workplace could be a troublesome new source of liability for employers." Many companies have policies that cover the use of traditional bulletin boards. What happens, however, if an employee posts on a company-owned message board that he wants to start a union? Can the company lawfully take action against that employee? What other liabil
Is mommy bias real? 2008-05-14 08:10:00 The Cincinnati Enquirer writes that "anti-mommy bias persists. There's an assumption that once a woman becomes a mother, she won't be as competent at her job or as committed or dependable - without the employee ever getting the chance to prove herself." The article continues:
Mother's Day recognizes mothers for their dedication, resourcefulness and persistence. But some working mothers say that
Carnival of HR is available 2008-05-14 07:29:00 The Career Encouragement Blog has posted this week's Carnival
of HR. Please take a few minutes out of your day to peruse the best of the of the HR blogosphere.Presented by Kohrman Jackson & Krantz
Read more:available
In responding to harassment complaint, prompt means prompt 2008-05-16 10:41:00 In Bailey v. USF Holland, the 6th Circuit had occasion to examine whether the employer's response to two African-American employees' claims of racial harassment was sufficiently prompt to defeat liability. This case provides a good case study from which companies can learn how, and how not, to respond to an employee's internal complaint.
Bailey and Smith, both African-American, were dock workers
What I'm reading this week #31 2008-05-16 06:30:00 In my absence last week, I completely missed my blogiversary. It's been a little over a year now since I launched the Ohio Employer's Law Blog with my first post, The Song Remains the Same -- Has Burlington Northern Really Changed the Landscape of Retaliation Claims? A quick thank you to all of my subscribers, commenters, everyone who's linked to me, provided an idea for a post, and quoted me both
Another take on second-hand harassment 2008-05-19 07:00:00 Remember Reeves v. C.H. Robinson Worldwide from a few weeks ago. It allowed a plaintiff to proceed with a sexual harassment claim even though she was not the target of the alleged offensive conduct. The 6th Circuit has now also weighed in on this issue of second-hand harassment (sort of), in Bailey v. USF Holland, which we discussed Friday. (Please follow the link for the background of the Bailey
Interracial Association Discrimination found unlawful 2008-05-21 06:32:00 Associational discrimination has become a hot employment law topic. The ADA expressly authorizes claims based on one's association to a person with a disability. Earlier this year, the 6th Circuit recognized an associational retaliation claim based on one employee's close relation to another employee who engaged in protected activity. Now, the 2nd Circuit has joined the 6th Circuit in permitting a Read more:Discrimination
How to apply new email soliciation rules 2008-05-20 09:48:00 Late last year, the NLRB issued its decision in Register-Guard, which determined that an employer can lawfully prohibit union-related use of company email systems if the employer has a consistently enforced policy prohibiting "non-job-related solicitations." If it was not clear before, after Register-Guard it is clear that an employer's email system is company property and "employees have no statu
Court rules that employee's cancer not sufficiently limiting for ADA protection 2008-05-22 07:43:00 Employers often struggle with leaves of absence. The FMLA only requires 12 weeks of unpaid leave for a serious health condition. If, however, an employee has a disability covered by the ADA, an unpaid leave of absence longer than 12 weeks might be required as a reasonable accommodation. Before one can consider whether such an accommodation is reasonable or necessary, one must first address the thr Read more:Court
President signs GINA - genetic information discrimination now unlawful 2008-05-21 15:14:00
As expected, this afternoon President
Bush signed the Genetic Information Nondiscrimination Act ("GINA") into law.
GINA adds "geneticinformation
" to the list of classes of employees protected by the federal employment discrimination laws. It makes it unlawful for an employer to fail or refuse to hire, or to discharge, any employee, or otherwise to discriminate against any employee with respect Read more:signs
What I'm reading this week #32 2008-05-23 06:30:00 The post of the week is from HR World, and comes in anticipation of next week's season finale of the best show on TV, Lost: 10 Things Every Manager Should Learn from "LOST".
I've recently discovered the Delaware Employment Law Blog, another excellent employment law resource, which this week gives us some thinking points for what it considers the top 5 wage and hour issues facing employers.
The
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