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What else I'm reading this week #21 2008-03-07 06:30:00 It seems no matter where you turn these days, you just can't escape the presidential campaigns. John Phillips at The Word on Employment Law has been doing a great series on where the presidential candidates stand on various pieces of pending employment legislation and other labor and employment issues. I highly recommend checking out John's thorough posts if you want a sense of what a Clinton or Obama administration might look like to employers.
Childrens' lit is all the rage with bloggers lately. The HR Capitalist blames a Dr. Seuss book, I Am Not Going to Get Up Today, for the mess of FMLA intermittent leave.
Rush Nigut, better known as Rush on Business, draws some lessons from a case on deleted emails.
The Labor & Employment Law Blog gives some pointers on a topic I've touched
EEOC posts huge gain in discrimination charges 2008-03-06 07:39:00 According to this EEOC press release, discrimination charges filed with the EEOC increased by 9% in 2007. The 82,792 private sector discrimination charges filed last year was the highest volume of incoming charges since 2002 and the largest annual increase since the early 1990s.
Race was the most frequently filed claim, with retaliation a close second and having the greatest percentage increase:
Basis of Charge Filing
2007
2006
Percentage Increase/Historical Comparison
RACE
30,510
27,238
Up 12% to highest level since 1994
RETALIATION
26,663
22,555
Up 18% to record high level, double since 1992
SEX/GENDER
24,826
23,247
Up 7% to highest level since 2002
AGE
19,103
16,548
Up 15%, largest annual increase sin Read more:posts
The uselessness of the Working Families Flexibility Act 2008-03-05 07:11:00 WorkplaceHorizons has tipped me off to a recently introduced Senate bill, the Working Families
Flexibility Act.
This bill, sponsored by Senators Obama and Clinton among others, would provide employees with the right to request, once every 12 months, that his or her employer modify the employee's work hours, schedule, or location. The Act would then require the employer to meet with the employee to discuss the requested modification within 14 days. Within 14 days of that meeting, the employer would have to provide the employee with a written decision regarding the requested modification, stating the grounds for any denial and any proposed alternative modifications. If the employee is still dissatisfied with the employer's decision, the bill would allow the employee to request reconsiderat
Department of Labor publishes new FMLA poster for Military Family Leave Amendments 2008-03-04 09:22:00 On January 28, President Bush signed into law the National Defense Authorization Act for FY 2008. Section 585(a) of that Act amends the FMLA to provide eligible employees working for covered employers new leave rights related to military service. Because of these amendments, the Department
of Labor has published an insert to its FMLA poster that all employers should add to their compendium of workplace postings.Presented by Kohrman Jackson & Krantz
Read more:Leave
, Family
, Military
, publishes
Common stereotypes to avoid during job interviews 2008-03-04 07:16:00 Yesterday, we took a look at some general dos and don'ts to keep in mind when conducting job interviews. Today, we'll delve a little deeper on the same topic, and examine some unconscious stereotypes that can unwittingly taint the interview process
The following are some examples of general stereotypes that could unintentionally pervade an interview and create liability problems under the employment discrimination laws:
Stereotypes in the advertising for candidates (i.e., "young grad").
Applicant's appearance makes him/her seem unable to do the job.
Not hiring or promoting married women because they are not "primary earners".
Refusing to hire or promote pregnant women, unwed mothers, or women with pre-school age children.
Minimum height and weight requirements.
People wit Read more:Common
Jury award to alleged harassers illustrates importance of internal investigations 2008-03-04 07:14:00 A Los Angeles jury has awarded $1.6 million to two white fire department captains suspended after a black firefighter they supervised had his meal laced with dog food. The captains alleged that they were made scapegoats for the misconduct of a Latino firefighter who placed dog food in the spaghetti dinner of a black coworker. The lawsuit centered on their claim that they were discriminated against because they are white, specifically that the fire department never conducted a formal investigation of the incident and disciplined them anyway under political pressure. The Los Angeles Times quotes a 34-year department veteran, "When it comes to a minority -- female or male -- and there's the word 'discrimination,' everybody runs and hides and puts their heads in the sand. The department is afr
Employers must allow time off for employees to vote 2008-03-03 11:11:00 A reader asked whether Ohio employers are required to provide employees
time off to vote - a timely question given tomorrow' presidential primary. Ohio Revised Code section 3599.06 provides:
No employer, his officer or agent, shall discharge or threaten to discharge an elector for taking a reasonable amount of time to vote on election day.... Whoever violates this section shall be fined not less than fifty nor more than five hundred dollars.
Hourly employees do not have to be paid for the reasonable amount of time off they take to vote. To avoid jeopardizing a salaried employee's exempt status, those employees should not be docked.
A quick LEXIS search did not reveal any cases in which an employee claimed a wrongful discharge based on a termination in violation of 3599.06. It is uncl
Avoid hidden interviewing traps 2008-03-03 06:46:00 Today's BLR HR Daily Advisor is entitled, "Help, They Made Me a Supervisor — 9 Disastrous Mistakes New Supervisors Make.":
Pity the new supervisor. Sometimes they do the wrong thing, because they think they have to do something, and sometimes they do nothing when it's critical to do something. We'll cover nine typical types of trouble they get into today.
1. Hiring
Hiring gets to be second nature after a while, but it's a tricky matter at first. Overeager new supervisors think they should find out all they can about the candidate, but don't realize that many questions are off limits—questions about race, religion, disability, and marital and family status, among others.
The fact is that many interview questions may seem innocuous enough, but may create serious discrimination pr Read more:Avoid
Special considerations for employment of veterans with service-connected disabilities 2008-02-29 14:08:00
In Ohio, two laws apply to the employment
of veterans: the federal Uniformed Services Employment and Reemployment Rights Act (USERRA), which provides reemployment rights to returning veterans, and Ohio's ban on military status discrimination, which goes into effect on March 18. If a returning veteran is injured, though, another law might come into play, the ADA. Earlier today the EEOC published guidance for employers on how to handle veterans with service-connected disabilities under the ADA. The following summarizes the EEOC's key points:
How does USERRA differ from the ADA?
USERRA protects the reemployment rights of those who leave their civilian jobs to serve in the uniformed services. The ADA prohibits employers from discriminating against qualified individuals with disabilities Read more:Special
Employer electronic monitoring survey illustrates the importance of clearly defined policies 2008-02-29 06:45:00 The Electronic Discovery Navigator is reporting that according to the 2007 Electronic Monitoring & Surveillance Survey from American Management Association (AMA) and The ePolicy Institute, more than half of all employers have fired an employee for e-mail or internet abuse. According to the report:
The 28% of employers that have fired an employee for e-mail misuse cited the following reasons:
Violation of any company policy (64%)Inappropriate or offensive language (62%)Excessive personal use (26%)Breach of confidentiality rules (22%)Other (12%)
The 30% of employers that have fired an employee for internet abuse cited the following reasons:
Viewing, downloading, or uploading inappropriate/offensive content (84%)Violation of any company policy (48%)Excessive personal use (34%)Other Read more:defined
, monitoring
, Employer
Ohio Senate proposes ban on sexual orientation discrimination 2008-03-12 12:48:00 Senate Bill 305, introduced in the Ohio
Senate yesterday, would include "sexual orientation" in the list of protected classes against which it is illegal for employers to discriminate. It defines sexual orientation as "heterosexuality, homosexuality, bisexuality, asexuality, or transgenderism, whether actual or perceived." According to today's Cleveland Plain Dealer, if S.B. 305 passes, Ohio would become the 22nd state to ban this type of discrimination. The Plain Dealer also points out that only one Republican crossed party lines to sponsor the bill, which does not bode well for its ultimate fate.
While this blog is unabashedly slanted in the employer's favor, I come down on the side of the employee on the issue of sexual orientation discrimination. As I've said here before, is difficul Read more:Senate
Revisiting the facebooking of job applicants 2008-03-12 07:36:00 Several months ago I wrote about basing personnel decisions on an applicant's or employee's off-work online activities. Today, three articles on this same topic came across my screen that make this topic worth revisiting: Do Employers Using Facebook for Background Checks Face Legal Risks?; Facebook a risky tool for background checks, lawyers warn; and Employers may be searching applicants' Facebook profiles, experts warn.
These articles predict indefensible discrimination lawsuits and general gloom and doom for employers who use Facebook, MySpace, YouTube, etc., to conduct background checks on job applicants. They suggest that companies are unnecessarily risking liability in a landscape that is uncertain until courts are asked to lay down some rules on these issues.
What is going on h
Today's schadenfreude moment 2008-03-11 07:13:00 Schadenfreude is a German word meaning, "happiness in the misfortune of others." I'm certain a feeling of schadenfreude has settled in all over Wall Street this morning, given yesterday's news about the Governor of New York.
Today
's question: What do the Governor of New York and an Iowa casino worker have in common? Apparently, love for paid companionship. From the Des Moines Register comes this story of a casino employee terminated for attempting to buy a prostitute on his employer's dime.
Neil Jorgensen, 62, of Kalona worked at the Riverside Casino and Gold Resort south of Iowa City until last November. He was fired after he was given a $100 Riverside gift certificate and a free night's stay at the casino hotel in recognition of a year's employment with the company. He used the gift
Guest blogging at the Connecticut Employment Law Blog 2008-03-10 15:56:00 I'm pulling double duty today. In addition to my regular posts here, I'm also guest blogging at the ConnecticutEmployment Law
Blog to cover for Dan Schwartz while he's in trial. Click on over to Dan's outstanding blog (and I'm not just saying that because of my guest post) and take a look at my thoughts on the federal Healthy Families Act. While your there, be sure to subscribe and add Dan to your feed reader.Presented by Kohrman Jackson & Krantz
Read more:Guest
, Guest blogging
Avoiding more discrimination traps 2008-03-10 07:33:00 Last week I talked about avoiding common traps in the questions that are asked during job interviews. The questioning, however, is not the end of this story. John Phillips' Word on Employment Law points out that even if the right questions are asked, the notes that interviewers take during the process can prove just as damaging. Interviewers always take notes. The notes enable the interviewer to remember key points about candidates and make pertinent comparisons at the end of the process. The key word, though, is "pertinent." John's point, which is an important one, is to make sure that any notes that are taken are job related and deal with a candidate's experience and skills, and not a protected class:
So, you would never write "black," "AA" (even if your explanation is that this stands
What else I'm reading this week #22 2008-03-13 21:26:00 This week's review starts with a couple of posts that should be of particular interest to Ohio businesses. Kris Dunn, The HR Capitalist, reports that Wal-Mart has overtaken GM as Ohio's largest employer. Meanwhile, The Union-Free Employer details a nasty labor dispute between the Service Employees International Union and the California Nurses Association for the right to organize at Ohio's Mercy Health hospital system.
The big news of the week, though, is hooker-gate in New York. Michael Moore at the Pennsylvania Employment Law Blog draws from Governor Spitzer's crisis some lessons for HR in scandal management .
Philip Gordon, the Workplace Privacy Counsel, has a great post on the problems inherent in dealing with a former employee's damaging web posts about your company.
Sticking wi
Defamation liability in internal investigations? 2008-03-13 09:47:00 Jackson v. City of Columbus, decided today by the Ohio Supreme Court, illustrates the importance of being thorough in all internal investigations of employee misconduct, and only disclosing the results of such investigations on a need to know basis.
The Mayor of Columbus asked his Columbus Public Safety Director, Thomas Rice, to conduct an internal investigation of his Police Chief, James Jackson, on allegations of police corruption. In June 1997, Rice presented his report of the investigation to the Mayor and released it to the public. In the report was a statement attributed to Keith Lamar Jones, an inmate at the Chillicothe Correctional Institution, which alleged that Jackson had impregnated a juvenile prostitute. A polygraph conducted during the interview of Jones concluded that he w Read more:Defamation
Is Internet addiction a protected disability? 2008-03-19 07:02:00 There is no doubt that addiction
is a protected
disability under the ADA and Ohio's parallel law. The Department of Labor provides the following helpful summary of the impact of the ADA on employees who have problems with drugs and alcohol:
Employers may prohibit the illegal use of drugs and the use of alcohol in the workplace.The ADA is not violated by tests for illegal use of drugs (but remember to meet state requirements).Employers may discharge or deny employment to persons who currently engage in the illegal use of drugs.Employers may not discriminate against drug addicts who are not currently using drugs and have been rehabilitated or have a history of drug addiction.Employers may not discriminate against drug addicts who are currently in a rehabilitation program. (The EEOC has cla Read more:Internet
Carnival of HR is available 2008-03-19 06:56:00 Wally Bock's Three Star Leadership Blog has posted this fortnight's Carnival
of Human Resources. To quote Wally:
Stroll down the midway and you will find posts full of wit and wisdom that will delight, amaze, and educate. But wait, there's more. You'll also discover new blogs you'll want to read.Presented by Kohrman Jackson & Krantz
Read more:available
Workers' comp retaliation case shows importance of careful documentation 2008-03-18 07:05:00 If you don't want it read by your spouse, seen by your boss, considered by a jury, or splashed on the front page of the newspaper, do not write it down or send it in an email.
Cunningham v. Steubenville Orothopedics & Sports Medicine, Inc., decided this week by Ohio's 7th Appellate District, illustrates the pitfalls that await companies that terminate employees in the midst of a workers' comp leave. It also shows that managers and supervisors must be vigilant in what they put in writing.
Marianne Cunningham was an x-ray technician for Steubenville Orthopedics. She injured her back at work and took a six-week leave of absence after filing a workers' comp claim for her injury. After informing Steubenville Orthopedics that she would be able to return to work the following week, she wa Read more:Workers
Update on Ohio Health Families Act 2008-03-18 06:30:00 The Columbus Dispatch reports that the Ohio
legislature is balking at the Ohio HealthFamilies
Act in its current form. The legislature has until May 8 to pass the OHFA. If it does not, Sick Days Ohio, the Union-led coalition of 180 different groups that sponsored the measure, would be entitled to circulate a petition to gather 120,683 signatures to qualify the law for placement on the fall ballot. A recent Columbus Dispatch poll shows that Sick Days Ohio likely would not have much problem obtaining those signatures. According to the poll, 76% of registered Democrats and 45% of registered Republicans favor the OHFA, while only 15% of Democrats and 44% of Republicans oppose it.
This wide bipartisan public support likely means that the OHFA will appear on November's ballot and will probabl Read more:Update
Rehiring of "boomerang" employees poses unique problems 2008-03-17 08:45:00 Raytheon v. Hernandez, decided by the U.S. Supreme Court in 2003, confirmed that an employer may lawfully refuse to rehire a previously terminated employee as long as the refusal is based on a neutral no-rehire policy and not on some protected trait. Today's South Jersey Courier Post talks about the benefits to employers to rehiring former employees
who left on good terms, so called "boomerang" employees:
[A]s the marketplace becomes more globally competitive for skilled workers, companies find that it makes perfect sense to rehire former workers.... No longer is it seen as disloyal for an employee to go to another company for career opportunities, and employers are welcoming back former workers with open arms.
In rehiring a former employee, consideration must be paid to whether that s Read more:poses
, unique
, problems
What else I'm reading this week #23 2008-03-21 06:30:00 Lots of really good practical advice this week:
Michael Moore of the Pennsylvania Employment Law Blog gives 5 things every HR employee should know about retaliation.
John Phillips, guest blogging at the Connecticut Employment Law Blog, tells us what to do with a problem employee who lacks any documentation to support the termination.
BLR's HR Daily Advisor provides 7 traps to avoid in managing employees with disabilities.
George's Employment Blawg talks about the use of surveys to measure employee satisfaction and other issues.
The HR Capitalist, Kris Dunn, blogs on how not to write vacation policies.
Finally, the Alaska Employment Law Blog talks about why it is not a good idea to conduct locker room video surveillance of your employee.Presented by Kohrman Jackson & Krantz
English-only rule at Philadelphia restaurant upheld 2008-03-20 06:49:00
As a native of Philadelphia
, nothing makes my mouth water more than a cheesesteak (please, please, don't call it a Philly cheesesteak, which is redundant, or a steak and cheese, which will just show your ignorance). You might be asking yourself, what do cheesesteaks have to do with employment law?
Geno's, one of the sacred temples of cheesesteaks at the corner of 9th and Passyunk in South Philly, had a small problem with the Philadelphia Commission on Human Relations about a sign hanging in its window that reads, "This is America. When ordering, please speak English
." Yesterday, a split three-member panel of that Commission ruled that the sign did not convey a message that service would be refused to non-English speakers. Anti-immigration groups are heralding Geno's owner, Joey Vento, a Read more:restaurant
Would you promote your poor performers? 2008-03-25 09:27:00 Would you promote an employee who ranked a 2 out of 10 on his or her last performance review? That is exactly what the Democratic and Republican parties are asking us to do. The Presidential campaign is referred to as one long job interview. Yet, the 3 people who are applying for the job get low marks from the public. According to RealClearPolitics, only 21% of the country approves of the job Congress is doing. Yet, John McCain, Hillary Clinton, and Barack Obama are all sitting Senators and vying for this promotion.Presented by Kohrman Jackson & Krantz
More on internet addiction 2008-03-25 06:38:00 Donna Seale at Human Rights in the Workplace is continuing our discussion on the differences between American and Canadian disability discrimination law and Internet addiction
. Her latest is as follows:
As for Mr. Hyman's comments that even if an employer paused to consider accommodating an Internet addicted employee the employee would still have to perform the essential duties of the job, I completely agree. Where we part company is on the approach to the actual question of accommodation. While it may not be easy to think up possible ways an employer could accommodate an Internet addicted employee who needed to use the Internet and e-mail to do her job, the law in this country still requires an employer to engage in that process. Failure to actually engage a process to consider what
The importance of following established criteria 2008-03-24 07:15:00 In Dunlap v. Tennessee Valley Auth., decided last week by the 6th Circuit, illustrates the dangers employers face when deviating from established criteria
in the hiring process.
David Dunlap, a 52-year-old African American, was one of 21 applicants for 10 positions with the TVA. Before it began interviewing, the selection committee decided that the interview would account for 70% of an applicant's final score and technical expertise would account for the other 30%. While the committed would score each candidates after his or her interview, the committee would also review the the scores from all of the prior interviewees and re-score them. This "score-balancing" caused the final scores to vary widely from the initial scores. For example, Dunlap's attendance record of only a few days off f
Dealing with Internet addiction under the ADA 2008-03-24 05:44:00
Last week, I asked whether the ADA affored protection to Internet
addicts. I concluded that the ADA would not protect an employee who spends all hours of the workday surfing the Web for non-work reasons:
Rest assured, though, that even if the DSM recognizes Internet or email addiction
as a bona fide mental disorder, employers should still be able reasonably to regulate use at work without running afoul of the ADA. Just as the ADA does not entitle an employee who claims sex addiction to sexually harass co-workers, the ADA is almost certainly not going to permit an Internet addict not to perform his or her job.
Donna Seale at Human Rights in the Workplace, a blog on Canadian employment law issues, suggests that under Canadian discrimination laws, the result might be different:
While I
Employer must pay employee for time spent at the doctor 2008-03-28 07:00:00 If an hourly employee is injured on the job, and the employer's workers' compensation carrier subsequently sends the employee to a doctor's appointment to re-evaluate the work-related injury, must the employer pay the employee for the time spent at the doctor? According to the 8th Circuit in Howser v. ABB, the answer is yes.
In the case, ABB offered Howser two choices for her doctor's appointment: it would compensate her for the time missed from work but deduct that time from her accrued paid leave benefits, or she could take an unpaid absence. Because she took the unpaid absence, ABB did not compensate her for the 3.8 hours she spent at the doctor's appointment. The Court held that because ABB's workers' comp administrator, its agent, directed her to attend the appointment, the 3.8 hour Read more:Employer
What else I'm reading this week #24 2008-03-28 06:30:00 One story that has received a lot of press this week, but that I have not touched, is the $100 million tip pooling judgment received by Starbucks lead employees. This claim seems to be unique to California wage and hour laws, which requires all employees, even supervisors, to receive their fair share of tips. Kris Dunn, The HR Capitalist, has what is probably the best take I've read on this case.
Mark Toth over the Manpower Employment Blawg, however, has the post of the week. Click on over to read about a grievance filed by the Teamsters complaining that a school had violated its collective bargaining agreement by using goats instead of union workers to clear brush.
Dan Schwartz at the Connecticut Employment Law Blog writes about the "ministerial exception" to Title VII and a case in t
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