Most employers provide fair warning to their employees that the employees should not have any expectation of privacy for any communications they send or receive using the company's computer. Employees can usually find these warnings in the employee handbook. Communications from a company computer - even if made on an employee's personal email account - can become property of the employer.
But employers need to be aware of the limits of such a policy. Under the federal Stored Communications Act (SCA), an employer may not intentionally access an electronic communication service's facility without authorization, or exceed such authorization, to obtain an electronic communication while it is electronically stored in such a facility. In plain English, the SCA forbids an employer from hacking into an employee's personal email account at AOL, Yahoo, or Google to obtain archived emails, even if the employee sent or received those emails on a company's computer.
Employers who violate the SCA could be liable to the employee for the employee's actual, out-of-pocket damages caused by the violation, plus any profits the employer may have derived as a result of the violation. The court may also assess punitive damages against an employer who willfully or intentionally violated the SCA, and award the employee reasonable attorney's fees and costs. The employee may also have a claim under Ohio law against the employer for invasion of privacy.
A recent case out of the District Court for the Southern District of New York illustrates how an employer may run afoul of the SCA. In Pure Power Boot Camp v. Warrior Fitness Boot Camp, an employer accused a former employee of stealing trade secrets. The former employee had used the employer's computer to send and receive personal emails on the employee's personal Hotmail account. The employee had stored the password for access to his personal Hotmail account on the company's computer, so the employer was able to easily access the employee's personal emails through Hotmail.
Pure Power Boot Camp ruled that the emails stored on the Hotmail system were electronic communications the the SCA protected. The employee's use of the employer's computer to receive and send personal emails did not authorize the employer to access the employee's emails electronically stored by Hotmail. Therefore, the employer's access to these stored emails violated the SCA.
The Court noted that emails stored on a personal computer do not fall under the SCA. A personal computer is not the equivalent of an electronic communication service provider's system. Therefore, the employer may have been able to examine its own computers without violating the SCA.
Even though an employer may have adequately informed its employees that they should have no expectation of privacy regarding personal emails sent or received on the company's computer, an employee does not surrender all rights to privacy by using a company's computer to send personal emails. If an employer is concerned about an employee using a company computer to send or receive personal emails, the employer should consult an attorney to discuss whether there are any lawful ways by which the employer can access those personal emails.
March 31, 2009
March 27, 2009
Investigation and Consistent Discipline
A recent decision by the Sixth Circuit Court of Appeals underscores the importance for an employer to properly investigate allegations that an employee engaged in wrongful behavior. In Sybrandt v. Home Depot, U.S.A., Inc., the Court of Appeals affirmed the District Court's judgment in favor of the employer because the employer thoroughly investigated allegations that an employee violated a company policy regarding computer user-identification codes.
In Sybrandt, a 14-year employee had violated the retail employer's "no-self-service" policy on employee transactions. As part of the investigation, a loss-prevention manager and a human resources supervisor interviewed the employee. Their conclusion was that the employee had violated the policy even though there was no evidence that indicated that the employee gained any benefit from the violation. The investigators provided the information they gathered to one of the employer's employment practices managers who asked them to do more factfinding. After the investigators provided a written description of security-camera footage of the violation and provided witness statements, the employment practices manager recommended that the employer terminate the employee. The employer followed the employment practices manager's recommendation and terminated the employee for violating the "no-self-service" policy.
The employee then filed a lawsuit claiming that she was terminated on the basis of her sex, and that the employer's stated reason for the termination was a pretext used to hide sex-based discrimination. The Circuit Court rejected the employee's claims, finding that the employer had an honest belief in its stated nondiscriminatory reason for the termination. The Court based its finding upon the employer's thorough investigation. The Court also noted that the employment practices manager had consistently recommended termination for employees who violated the "no-self-service" policy.
Sybrandt provides valuable guidance to employers who are faced with the task of disciplining employees. The employment practices manager felt he did not have sufficient information or documentation to properly discipline an employee, so he ordered the investigators to continue their investigation. Even though there was no evidence that this long-term employee had acted dishonestly, the employer did not depart from its practice of terminating employees who have violated its policies. Furthermore, the employer was able to produce evidence of prior discipline of employees who violated its policies.
The two reasons why this employer won this case are: 1) the employer's thorough investigation of the allegations; and 2) the employer's consistent application of discipline. With the employer's investigation and consistent discipline, the employer was able to prevail because it was able to conclusively demonstrate that it had a legitimate nondiscriminatory reason for the termination.
In Sybrandt, a 14-year employee had violated the retail employer's "no-self-service" policy on employee transactions. As part of the investigation, a loss-prevention manager and a human resources supervisor interviewed the employee. Their conclusion was that the employee had violated the policy even though there was no evidence that indicated that the employee gained any benefit from the violation. The investigators provided the information they gathered to one of the employer's employment practices managers who asked them to do more factfinding. After the investigators provided a written description of security-camera footage of the violation and provided witness statements, the employment practices manager recommended that the employer terminate the employee. The employer followed the employment practices manager's recommendation and terminated the employee for violating the "no-self-service" policy.
The employee then filed a lawsuit claiming that she was terminated on the basis of her sex, and that the employer's stated reason for the termination was a pretext used to hide sex-based discrimination. The Circuit Court rejected the employee's claims, finding that the employer had an honest belief in its stated nondiscriminatory reason for the termination. The Court based its finding upon the employer's thorough investigation. The Court also noted that the employment practices manager had consistently recommended termination for employees who violated the "no-self-service" policy.
Sybrandt provides valuable guidance to employers who are faced with the task of disciplining employees. The employment practices manager felt he did not have sufficient information or documentation to properly discipline an employee, so he ordered the investigators to continue their investigation. Even though there was no evidence that this long-term employee had acted dishonestly, the employer did not depart from its practice of terminating employees who have violated its policies. Furthermore, the employer was able to produce evidence of prior discipline of employees who violated its policies.
The two reasons why this employer won this case are: 1) the employer's thorough investigation of the allegations; and 2) the employer's consistent application of discipline. With the employer's investigation and consistent discipline, the employer was able to prevail because it was able to conclusively demonstrate that it had a legitimate nondiscriminatory reason for the termination.
March 22, 2009
Employers - Watch that overtime!
In the current economic climate, many employers have adopted restrictive policies against an employee working overtime. But if an employer fails to actively enforce its "no unauthorized overtime" policy, the employer would still be obligated to pay overtime to any non-exempt employee who works more than 40 hours in a week.
Under the Fair Labor Standards Act (FLSA), if an employee works more than 40 hours in one week, the employer must pay that employee one-and-a-half times the employee's normal hourly rate for all time worked in excess of 40 hours. There are several types of employees who are exempt from this provision of the FLSA, such as executives, administrative support personnel, and professionals. The United States Department of Labor has issued regulations that define which employees are exempt.
Some employers have adopted strict policies against overtime work, requiring all overtime work to be pre-approved. But adopting a policy will not prevent an employer from being required to pay overtime to an employee who worked unauthorized overtime. The employer must also take steps to enforce the policy.
According to the Department of Labor regulations, unrequested work that is permitted is considered work time for which an employee must be compensated. If the unrequested work means the employee worked more than 40 hours in a week, the employee must be paid for those extra hours at the overtime rate.
The Department of Labor places the onus upon employers to exercise control to see that unwanted work is not performed. The regulations state that the employer has the power to enforce its rule against unapproved overtime and must make every effort to do so. If an employee continues to work after the end of a shift to correct the employee's own mistakes or to complete a project and the employer knows or has reason to believe that the employee is continuing to work, the work performed after the end of the shift is still work time and counts against the 40-hour workweek.
The Labor Department regulations do not permit an employer to sit back and accept the benefits of an employee's work without compensating that employee. To prevent unwanted overtime work, an employer must be vigilant. Because of the variety of settings in which employees now perform their work (i.e., the employer's office, at home, at a client's office, etc.), an employer should consult with an employment attorney to discuss ways by which an employer may enforce its policy against unauthorized overtime.
Under the Fair Labor Standards Act (FLSA), if an employee works more than 40 hours in one week, the employer must pay that employee one-and-a-half times the employee's normal hourly rate for all time worked in excess of 40 hours. There are several types of employees who are exempt from this provision of the FLSA, such as executives, administrative support personnel, and professionals. The United States Department of Labor has issued regulations that define which employees are exempt.
Some employers have adopted strict policies against overtime work, requiring all overtime work to be pre-approved. But adopting a policy will not prevent an employer from being required to pay overtime to an employee who worked unauthorized overtime. The employer must also take steps to enforce the policy.
According to the Department of Labor regulations, unrequested work that is permitted is considered work time for which an employee must be compensated. If the unrequested work means the employee worked more than 40 hours in a week, the employee must be paid for those extra hours at the overtime rate.
The Department of Labor places the onus upon employers to exercise control to see that unwanted work is not performed. The regulations state that the employer has the power to enforce its rule against unapproved overtime and must make every effort to do so. If an employee continues to work after the end of a shift to correct the employee's own mistakes or to complete a project and the employer knows or has reason to believe that the employee is continuing to work, the work performed after the end of the shift is still work time and counts against the 40-hour workweek.
The Labor Department regulations do not permit an employer to sit back and accept the benefits of an employee's work without compensating that employee. To prevent unwanted overtime work, an employer must be vigilant. Because of the variety of settings in which employees now perform their work (i.e., the employer's office, at home, at a client's office, etc.), an employer should consult with an employment attorney to discuss ways by which an employer may enforce its policy against unauthorized overtime.
March 20, 2009
Does Title VII Protect Sexuality?
A recent decision by the Sixth Circuit Court of Appeals may have opened a door for gays and lesbians to seek protection under Title VII against employment discrimination. The Sixth Circuit covers the states of Michigan, Ohio, Kentucky, and Tennessee. To reduce the risk of a discrimination charge, and to bolster a defense against such a charge, employers should adopt policies prohibiting harassment or discrimination against any employee based upon the employee's sexuality.
In Barrett v. Whirlpool Corp., three Caucasian employees alleged that their employer discriminated against them on account of their association with and advocacy for certain African-American co-workers. The employees claimed that the associational discrimination against them created a hostile work environment.
The Court noted that Title VII protects employees who are victims of discriminatory animus towards third persons who are members of a protected class and with whom the employee associates. Barrett cited to a prior case in which the Sixth Circuit had held that a Caucasian employee could state a claim under Title VII if an employer took adverse actions upon learning that the employee's child was bi-racial. In the prior case, the Sixth Circuit had noted that the employee was discriminated against because his race was different than his child's race. Therefore, according to the Court in the prior case, the employer discriminated against the employee based upon his race.
Barrett clarified that the degree of association between the employee and the third person is not relevant. According to Barrett, an employee does not need to be a close family member to the third person, or even a close friend, to state a Title VII claim.
Of the three plaintiffs, Barrett found that only one stated a claim under Title VII. The successful plaintiff alleged that she was physically threatened because of her association with African-American employees and that the employer took no corrective action after she complained. The successful plaintiff also alleged that her supervisor attempted to prevent her from applying for a promotion because of the supervisor's disapproval of the employee's friendship with an African-American co-worker. She alleged that these actions were taken against her because she was a Caucasian associating with an African-American. Barrett's language suggests that its holding is not limited to an employee's association with another co-worker but would also apply to an employee's association with a non-employee.
The Court released Barrett on February 23, 2009, so it is too soon to see how courts apply its holdings to other types of Title VII claims. (Any one of the parties may appeal Barrett to the United States Supreme Court. The deadline for such an appeal is May 26, 2009.) But a credible argument could be made that Barrett should apply to gays and lesbians.
All employees are members of a protected class based upon their gender. This means that employers may not discriminate against men or women. Because Barrett recognizes Title VII claims for associational discrimination without regard to the degree of association, one could argue that Barrett would recognize a Title VII claim for associational discrimination for a male employee who has a close association with another male - a much closer association than the successful Caucasian Barrett plaintiff had with the African-American co-worker. If this male employee was subjected to insults for being gay - or even terminated for being gay, this employee could argue that he was harassed and discriminated against because of his gender. The male employee could argue that a female employee who has a close association with a male would not be subject to the same harassment and discrimination.
A court could apply Barrett to the harassment and discrimination against this hypothetical male employee and find that Title VII protects employees from this kind of associational discrimination. Even though Title VII and the Ohio Civil Rights Act do not expressly include sexuality as a protected status, these laws do not exclude sexuality as a protected status either. (The Americans with Disabilities Act and the Ohio Civil Rights Act both expressly exclude homo sexuality and lesbianism from their definitions of a disability.) Therefore, Barrett could be interpreted to protect employees who are closely associated with members of their same sex.
In response to Barrett, an employer should adopt policies against harassment or discrimination based upon sexuality. If an employer adopts such policies and enforces them, the employer might avoid being found liable for associational discrimination.
In Barrett v. Whirlpool Corp., three Caucasian employees alleged that their employer discriminated against them on account of their association with and advocacy for certain African-American co-workers. The employees claimed that the associational discrimination against them created a hostile work environment.
The Court noted that Title VII protects employees who are victims of discriminatory animus towards third persons who are members of a protected class and with whom the employee associates. Barrett cited to a prior case in which the Sixth Circuit had held that a Caucasian employee could state a claim under Title VII if an employer took adverse actions upon learning that the employee's child was bi-racial. In the prior case, the Sixth Circuit had noted that the employee was discriminated against because his race was different than his child's race. Therefore, according to the Court in the prior case, the employer discriminated against the employee based upon his race.
Barrett clarified that the degree of association between the employee and the third person is not relevant. According to Barrett, an employee does not need to be a close family member to the third person, or even a close friend, to state a Title VII claim.
Of the three plaintiffs, Barrett found that only one stated a claim under Title VII. The successful plaintiff alleged that she was physically threatened because of her association with African-American employees and that the employer took no corrective action after she complained. The successful plaintiff also alleged that her supervisor attempted to prevent her from applying for a promotion because of the supervisor's disapproval of the employee's friendship with an African-American co-worker. She alleged that these actions were taken against her because she was a Caucasian associating with an African-American. Barrett's language suggests that its holding is not limited to an employee's association with another co-worker but would also apply to an employee's association with a non-employee.
The Court released Barrett on February 23, 2009, so it is too soon to see how courts apply its holdings to other types of Title VII claims. (Any one of the parties may appeal Barrett to the United States Supreme Court. The deadline for such an appeal is May 26, 2009.) But a credible argument could be made that Barrett should apply to gays and lesbians.
All employees are members of a protected class based upon their gender. This means that employers may not discriminate against men or women. Because Barrett recognizes Title VII claims for associational discrimination without regard to the degree of association, one could argue that Barrett would recognize a Title VII claim for associational discrimination for a male employee who has a close association with another male - a much closer association than the successful Caucasian Barrett plaintiff had with the African-American co-worker. If this male employee was subjected to insults for being gay - or even terminated for being gay, this employee could argue that he was harassed and discriminated against because of his gender. The male employee could argue that a female employee who has a close association with a male would not be subject to the same harassment and discrimination.
A court could apply Barrett to the harassment and discrimination against this hypothetical male employee and find that Title VII protects employees from this kind of associational discrimination. Even though Title VII and the Ohio Civil Rights Act do not expressly include sexuality as a protected status, these laws do not exclude sexuality as a protected status either. (The Americans with Disabilities Act and the Ohio Civil Rights Act both expressly exclude homo sexuality and lesbianism from their definitions of a disability.) Therefore, Barrett could be interpreted to protect employees who are closely associated with members of their same sex.
In response to Barrett, an employer should adopt policies against harassment or discrimination based upon sexuality. If an employer adopts such policies and enforces them, the employer might avoid being found liable for associational discrimination.
March 19, 2009
Ohio Legislative Update
Recently, two bills have been introduced in the Ohio Senate regarding labor and employment law relations.
S.B. 31, introduced 2/10/09 by Senator Thomas F. Patton (R-Strongsville), would create a testimonial privilege for communications between a representative of an employee organization and a bargaining unit member. The bill would apply only if the communication was made while the employee organization representative was acting in a representative capacity. The bill has been assigned to the Senate Judiciary Civil Justice Committee.
S.B. 34, introduced 2/10/09 by Senator Dale Miller (D-Cleveland), and co-sponsored by five others, would require the Ohio Department of Administrative Services to create a health insurance program that permits municipalities, employers of less than 500 employees, and nonprofit organizations to purchase for their employees the same policies provided to state employees. The bill has been assigned to the Senate Insurance, Commerce, & Labor Committee.
S.B. 31, introduced 2/10/09 by Senator Thomas F. Patton (R-Strongsville), would create a testimonial privilege for communications between a representative of an employee organization and a bargaining unit member. The bill would apply only if the communication was made while the employee organization representative was acting in a representative capacity. The bill has been assigned to the Senate Judiciary Civil Justice Committee.
S.B. 34, introduced 2/10/09 by Senator Dale Miller (D-Cleveland), and co-sponsored by five others, would require the Ohio Department of Administrative Services to create a health insurance program that permits municipalities, employers of less than 500 employees, and nonprofit organizations to purchase for their employees the same policies provided to state employees. The bill has been assigned to the Senate Insurance, Commerce, & Labor Committee.
March 17, 2009
Pregnancy Discrimination Case in the Ohio Supreme Court
On March 11, 2009, the Ohio Supreme Court heard oral arguments in Allen v. Totes/Isotoner Corp., Case No. 2008-0845. The employer had terminated an employee who pumped milk from her breasts in the women's bathroom on unauthorized breaks. The employee claimed that the employer had discriminated against her on account of her gender and her pregnancy. She claimed that lactating women - as opposed to breastfeeding women - are a protected class. According to the employee, breastfeeding is the social act of nursing an infant while lactation is the secretion of milk from the mammary glands and is an aspect of pregnancy or childbirth. She also claimed that other workers were permitted to take unscheduled breaks to tend to bodily functions or discomfort, but lactating women were not permitted to do so.
The employer countered those arguments and claimed that the employee was terminated because she unilaterally added a paid work break to her schedule. According to the employer, the parties had agreed to a break schedule that took into account the employee's desire to pump milk from her breasts so that she could continue breastfeeding her infant at home. The employer argued that if the break schedule did not suit her body's lactation schedule, she could have requested a change to her break schedule. The employer also argued that lactation is not an aspect of pregnancy that is protected by the Ohio or Federal Pregnancy Discrimination Act.
The Supreme Court is expected to address whether breast-pumping in the workplace is protected under the Ohio Pregnancy Discrimination Act, and if so, what kind of accommodations must an employer make to lactating women.
The employer countered those arguments and claimed that the employee was terminated because she unilaterally added a paid work break to her schedule. According to the employer, the parties had agreed to a break schedule that took into account the employee's desire to pump milk from her breasts so that she could continue breastfeeding her infant at home. The employer argued that if the break schedule did not suit her body's lactation schedule, she could have requested a change to her break schedule. The employer also argued that lactation is not an aspect of pregnancy that is protected by the Ohio or Federal Pregnancy Discrimination Act.
The Supreme Court is expected to address whether breast-pumping in the workplace is protected under the Ohio Pregnancy Discrimination Act, and if so, what kind of accommodations must an employer make to lactating women.
March 15, 2009
It's all fun and games until someone loses a job
A recent decision of the Sixth Circuit Court of Appeals underscores the importance for employers to be vigilant against inappropriate conduct in the workplace. Even though the employer prevailed in Hensman v. City of Riverview, the Court based its holding more upon the infrequency of the inappropriate conduct rather than upon the inappropriateness of the conduct.
The employee in Hensman had taken a medical "stress leave" after being the recipient of what she claimed was six weeks of sexual harassment, which, she claimed, had resulted in a sexually hostile work environment. The plaintiff acknowledged that her supervisor had never sexually propositioned her or groped or fondled her. Instead, she claimed that the hostile work environment arose from the following conduct:
(1): Her supervisor had hugged her on three separate occassions - twice when he was complimenting her on her job performance, and once after the two of them had had an argument after he had said that he had "sensed a tension between them."
(2): Her supervisor had made comments two separate times about her being "voluptuous."
(3): Her supervisor had said he was too distracted by her beauty to listen to her.
(4): Her supervisor had walked too closely behind her.
(5): Her supervisor had closed the door to his office when he met with her.
(6): When her supervisor had accidentally locked himself out of his office before a meeting with the union president late one night, he called the plaintiff because she was the only other person who had a key to the office. She told him to come by her house to get the key. When he came by at 11:30 p.m., he had told her that she looked cute in her pajamas.
(7): Her supervisor had called her by the wrong name.
(8): On her last day of work, her supervisor had grabbed her arm in anger when she said she was going home because she felt sick.
Even though the District Court threw out the case without a trial, this case illustrates the importance of being aware of perception. The supervisor probably believed that none of his conduct created a hostile work environment for the plaintiff. After all, she did not complain for six weeks - not until the day before her last day. But she perceived his conduct as harassment.
Most of the conduct described above is objectively inappropriate for a workplace. If the plaintiff had complained about it to her supervisor's superiors before her last day, the employer would have had to take some corrective action, such as telling the supervisor to behave more appropriately. If the plaintiff had not left her job but instead endured the inappropriate conduct for a few more months, a court could have easily found that there were enough examples of inappropriate conduct such that such conduct permeated the workplace with discriminatory intimidation, ridicule, and insult.
To reduce the chance of becoming a defendant in an employment discrimination case, employers should be pro-active in training their staff to not engage in inappropriate conduct. Although there is no method by which an employer can be guaranteed that it will not be sued for employment discrimination, a good employment law attorney can show an employer ways to minimize that risk and to improve the employer's defenses to such a claim.
The employee in Hensman had taken a medical "stress leave" after being the recipient of what she claimed was six weeks of sexual harassment, which, she claimed, had resulted in a sexually hostile work environment. The plaintiff acknowledged that her supervisor had never sexually propositioned her or groped or fondled her. Instead, she claimed that the hostile work environment arose from the following conduct:
(1): Her supervisor had hugged her on three separate occassions - twice when he was complimenting her on her job performance, and once after the two of them had had an argument after he had said that he had "sensed a tension between them."
(2): Her supervisor had made comments two separate times about her being "voluptuous."
(3): Her supervisor had said he was too distracted by her beauty to listen to her.
(4): Her supervisor had walked too closely behind her.
(5): Her supervisor had closed the door to his office when he met with her.
(6): When her supervisor had accidentally locked himself out of his office before a meeting with the union president late one night, he called the plaintiff because she was the only other person who had a key to the office. She told him to come by her house to get the key. When he came by at 11:30 p.m., he had told her that she looked cute in her pajamas.
(7): Her supervisor had called her by the wrong name.
(8): On her last day of work, her supervisor had grabbed her arm in anger when she said she was going home because she felt sick.
Even though the District Court threw out the case without a trial, this case illustrates the importance of being aware of perception. The supervisor probably believed that none of his conduct created a hostile work environment for the plaintiff. After all, she did not complain for six weeks - not until the day before her last day. But she perceived his conduct as harassment.
Most of the conduct described above is objectively inappropriate for a workplace. If the plaintiff had complained about it to her supervisor's superiors before her last day, the employer would have had to take some corrective action, such as telling the supervisor to behave more appropriately. If the plaintiff had not left her job but instead endured the inappropriate conduct for a few more months, a court could have easily found that there were enough examples of inappropriate conduct such that such conduct permeated the workplace with discriminatory intimidation, ridicule, and insult.
To reduce the chance of becoming a defendant in an employment discrimination case, employers should be pro-active in training their staff to not engage in inappropriate conduct. Although there is no method by which an employer can be guaranteed that it will not be sued for employment discrimination, a good employment law attorney can show an employer ways to minimize that risk and to improve the employer's defenses to such a claim.
March 12, 2009
Consistent Application of Employment Policies
A recent decision by the Sixth Circuit Court of Appeals underscores the importance for employers to consistently apply their employment policies. In Morgan v. New York Life Ins. Co., the Court of Appeals affirmed a jury verdict of $6,000,000.00 in compensatory damages for the plaintiff in an age discrimination suit. (The Court remanded the $10,000,000.00 in punitive damages back to the District Court on the basis that it was excessive.)
Tommy Morgan was a managing partner in New York Life's Cleveland office when he was terminated. After working at New York Life for almost 6 years, New York Life terminated him, claiming that he failed to meet the manpower requirements in New York Life's written manual. At the time of the termination, Morgan was 50 years old. New York Life replaced him with a 40-year-old manager from the Orlando office.
According to New York Life's performance criteria, Morgan was required to have 99 agents working in his office by a specific date. Even though Morgan had 102 agents working in the Cleveland office on the specified date, New York Life negated four of those agents because they split commissions with other agents in the Cleveland office, thereby bringing the number of agents that New York Life included in its count down to 98.
The Sixth Circuit concluded that evidence of New York Life's deviations from its normal practices for other managing partners - who were younger than Morgan - was sufficient for the jury to find that New York Life terminated Morgan on the basis of age. Younger managers who fell short of New York Life's goals were not sanctioned or terminated. In some cases, those younger managers received favorable treatment.
For its younger managing partners, New York life appeared to be willing to consider extenuating circumstances, such as a managing partner's pregnancy. But New York Life rigidly applied its manpower formula to Morgan without any consideration for extenuating circumstances, such as an employee in the Cleveland office who embezzled millions of dollars and was - presumably - terminated. Additionally, the evidence indicated that younger managing partners received favorable treatment than older managing partners. For example, a younger managing partners was praised for helping an older managing partner "reach a retirement decision."
This case illustrates one of the most overlooked maxims in employment law: "No good deed goes unpunished." Many managers probably do not want to terminate an employee who narrowly missed a goal, but is an otherwise exemplary worker. But if the manager does not discipline that exemplary worker in compliance with the company's policies, that manager is increasing the risk of a discrimination lawsuit when an employee who also narrowly missed a goal is terminated or otherwise disciplined.
An employer's written employment policies might be a defense to some discrimination lawsuits. But unless those policies are consistently applied, the employer is runs a risk of making employment decisions appear to be based upon an employee's status as a member of a protected class. To make sure that they are consistently applying their employment policies, employers should consult with an employment attorney.
Tommy Morgan was a managing partner in New York Life's Cleveland office when he was terminated. After working at New York Life for almost 6 years, New York Life terminated him, claiming that he failed to meet the manpower requirements in New York Life's written manual. At the time of the termination, Morgan was 50 years old. New York Life replaced him with a 40-year-old manager from the Orlando office.
According to New York Life's performance criteria, Morgan was required to have 99 agents working in his office by a specific date. Even though Morgan had 102 agents working in the Cleveland office on the specified date, New York Life negated four of those agents because they split commissions with other agents in the Cleveland office, thereby bringing the number of agents that New York Life included in its count down to 98.
The Sixth Circuit concluded that evidence of New York Life's deviations from its normal practices for other managing partners - who were younger than Morgan - was sufficient for the jury to find that New York Life terminated Morgan on the basis of age. Younger managers who fell short of New York Life's goals were not sanctioned or terminated. In some cases, those younger managers received favorable treatment.
For its younger managing partners, New York life appeared to be willing to consider extenuating circumstances, such as a managing partner's pregnancy. But New York Life rigidly applied its manpower formula to Morgan without any consideration for extenuating circumstances, such as an employee in the Cleveland office who embezzled millions of dollars and was - presumably - terminated. Additionally, the evidence indicated that younger managing partners received favorable treatment than older managing partners. For example, a younger managing partners was praised for helping an older managing partner "reach a retirement decision."
This case illustrates one of the most overlooked maxims in employment law: "No good deed goes unpunished." Many managers probably do not want to terminate an employee who narrowly missed a goal, but is an otherwise exemplary worker. But if the manager does not discipline that exemplary worker in compliance with the company's policies, that manager is increasing the risk of a discrimination lawsuit when an employee who also narrowly missed a goal is terminated or otherwise disciplined.
An employer's written employment policies might be a defense to some discrimination lawsuits. But unless those policies are consistently applied, the employer is runs a risk of making employment decisions appear to be based upon an employee's status as a member of a protected class. To make sure that they are consistently applying their employment policies, employers should consult with an employment attorney.
March 11, 2009
Employee Free Choice Act Introduced
Congress is now considering the Employee Free Choice Act of 2009 (EFCA). On March 10, 2009, identical bills were introduced into the House and the Senate. Rep. George Miller (D-Cal.) introduced the bill (H.R. 1409) into the House with Ohio co-sponsors John A. Boccieri (D-Alliance), Steve Driehaus (D-Cincinnati), Marcia Fudge (D-Warrensville Heights), Marcy Kaptur (D-Toledo), Mary Jo Kilroy (D-Clintonville), Dennis J. Kucinich (D-Cleveland), Tim Ryan (D-Niles), Zachary J. Space (D-Dover), Betty Sutton (D-Barberton), and Charles A. Wilson (D-St. Clairsville). Senator Edward M. Kennedy (D-Mass.) introduced the Senate bill (S. 560) with Ohio Senator Sherrod Brown (D) as a co-sponsor.
This bill proposes several changes to the certification procedures of labor unions and to the collective bargaining process.
Union Certification
Under the EFCA, if a union files a petition with the National Labor Relations Board that claims that a majority of employees in a unit wish to be represented by the union, the Board verifies that a majority of the unit's employees signed valid authorizations designating the union as their bargaining representative. The Board also determines whether the employees form a unit that is appropriate for collective bargaining. If the Board finds that a majority of the employees in the unit designated the union as their representative, and finds that the unit is appropriate for collective bargaining, the Board then certifies the union as the representative without a secret ballot election by the employees.
Initial Collective Bargaining Agreements
Under the EFCA, the employer and union must begin negotiating a collective bargaining agreement within 10 days after the employer receives the request for collective bargaining. If the employer and the union fail to reach an agreement on the terms of a collective bargaining agreement within 90 days of negotiating, a federal mediator will attempt to bring them to an agreement by mediation and conciliation. If the mediation does not result in a collective bargaining agreement within 30 days, then a federal arbitration panel will settle the dispute and prepare a collective bargaining agreement whose term will be 2 years.
Enforcement
Under the EFCA, if an employer terminates an employee while employees - unbeknownst to the employer - were seeking representation, the Board shall conduct a preliminary investigation to determine whether the employer committed an unfair labor practice. This preliminary investigation will take priority over all other cases except other cases of an employer's alleged unfair labor practice. If the Board finds that the employer committed an unfair labor practice, the Board is required to award the employee three times the employee's back pay. For willful or repeated violations, the Board may assess a civil fine of up to $20,000.00 per violation.
Congress has not finalized the EFCA. Because the bill could radically change labor-management relations, Ohioans are encouraged to contact their representatives and senators and let their thoughts be known on the EFCA.
This bill proposes several changes to the certification procedures of labor unions and to the collective bargaining process.
Union Certification
Under the EFCA, if a union files a petition with the National Labor Relations Board that claims that a majority of employees in a unit wish to be represented by the union, the Board verifies that a majority of the unit's employees signed valid authorizations designating the union as their bargaining representative. The Board also determines whether the employees form a unit that is appropriate for collective bargaining. If the Board finds that a majority of the employees in the unit designated the union as their representative, and finds that the unit is appropriate for collective bargaining, the Board then certifies the union as the representative without a secret ballot election by the employees.
Initial Collective Bargaining Agreements
Under the EFCA, the employer and union must begin negotiating a collective bargaining agreement within 10 days after the employer receives the request for collective bargaining. If the employer and the union fail to reach an agreement on the terms of a collective bargaining agreement within 90 days of negotiating, a federal mediator will attempt to bring them to an agreement by mediation and conciliation. If the mediation does not result in a collective bargaining agreement within 30 days, then a federal arbitration panel will settle the dispute and prepare a collective bargaining agreement whose term will be 2 years.
Enforcement
Under the EFCA, if an employer terminates an employee while employees - unbeknownst to the employer - were seeking representation, the Board shall conduct a preliminary investigation to determine whether the employer committed an unfair labor practice. This preliminary investigation will take priority over all other cases except other cases of an employer's alleged unfair labor practice. If the Board finds that the employer committed an unfair labor practice, the Board is required to award the employee three times the employee's back pay. For willful or repeated violations, the Board may assess a civil fine of up to $20,000.00 per violation.
Congress has not finalized the EFCA. Because the bill could radically change labor-management relations, Ohioans are encouraged to contact their representatives and senators and let their thoughts be known on the EFCA.
March 8, 2009
Risks of Recessionary Layoffs
Faced with the prospect that the current recession might not soon end, many employers have to face the difficult task of laying off loyal and hard-working employees. Even when an employer approaches the layoffs with as much dignity and respect as possible, any termination can lead to a claim of wrongful discharge.
As Ellen Simon points out in her excellent Employee Rights Post, (http://www.employeerightspost.com/admin/trackback/115913) using statistical analysis to compare the laid off workers' demographics with the workers who are not laid off could still lead to discrimination lawsuits. Under a statistical analysis, managers would make the initial decisions about who should be cut and who should stay. Before implementing the layoffs, the managers would review EEO statistics to determine whether there are a disproportionate number of protected-class members (i.e., women, minorities, workers over 40, workers with disabilities) on the list of employees marked for termination.
The problem with this statistical analysis is that the employer is still considering employees' membership in the various protected classes when making decisions that affect the terms and conditions of employment. If the employer considers an employee's gender, the terminated employee could still argue that his or her sex played a role in the termination decision. A jury might not care about statistical analysis when a terminated employee of one race made five times the sales of a retained employee of a different race.
Even though using statistical analysis might seem like a neutral manner by which to decide which employees to lay off, it still may expose an employer to discrimination lawsuits. Unfortunately, there is no method for determining who to lay off that will guarantee that no terminated employees will claim discriminatory treatment. The best that an employer can hope to do under these circumstances is seek legal advice regarding reducing the risk of discrimination lawsuits.
As Ellen Simon points out in her excellent Employee Rights Post, (http://www.employeerightspost.com/admin/trackback/115913) using statistical analysis to compare the laid off workers' demographics with the workers who are not laid off could still lead to discrimination lawsuits. Under a statistical analysis, managers would make the initial decisions about who should be cut and who should stay. Before implementing the layoffs, the managers would review EEO statistics to determine whether there are a disproportionate number of protected-class members (i.e., women, minorities, workers over 40, workers with disabilities) on the list of employees marked for termination.
The problem with this statistical analysis is that the employer is still considering employees' membership in the various protected classes when making decisions that affect the terms and conditions of employment. If the employer considers an employee's gender, the terminated employee could still argue that his or her sex played a role in the termination decision. A jury might not care about statistical analysis when a terminated employee of one race made five times the sales of a retained employee of a different race.
Even though using statistical analysis might seem like a neutral manner by which to decide which employees to lay off, it still may expose an employer to discrimination lawsuits. Unfortunately, there is no method for determining who to lay off that will guarantee that no terminated employees will claim discriminatory treatment. The best that an employer can hope to do under these circumstances is seek legal advice regarding reducing the risk of discrimination lawsuits.
March 2, 2009
Upcoming Ohio Supreme Court Decisions
On February 18, 2009, the Ohio Supreme Court heard oral arguments on three cases on Ohio's employer intentional tort statute - Ohio Rev. Code §2745.01. That statute sets out the requirements that an employee must meet to bring an intentional tort claim against his or her employer. The parties sought clarification of some of the terms in that statute and a determination of whether the statute complies with the Ohio Constitution.
Klaus v. United Equity, Inc., Case No. 2008-0894. Issues: 1) Whether the "deliberate intent" requirement in an intentional tort claim against the employer requires the employee to establish that the employer was consciously aware of the consequences of an egregious risk of injury that fell outside the risks to which the employee is ordinarily exposed. See Ohio Rev. Code §2745.01(B). 2) Whether the employee must demonstrate that harm is substantially to result from the employer's conduct AND that the employer was aware that harm was substantially certain to occur.
Kaminski v. Metal & Wire Products Company, Case No. 2008-0857. Issue: Whether Ohio Rev. Code §2745.01 complies with Article II, Section 34 of the Ohio Constitution regarding passing laws that provide for the welfare of employees and with Art. II, Section 35 regarding passing laws for workers' compensation.
Stetter v. R.J. Corman Derailment Services, LLC, Case No. 2008-0972. Issue: whether Ohio Rev. Code §2745.01 complies with: 1) Article I, Section 5 of the Ohio Constitution regarding a citizen's right to a jury trial in civil cases; 2) Art. I Section 1 regarding a citizen's right to a remedy by law; 3) Article I, Section 16 regarding a citizen's right to due process including access to open courts to remedy injuries; 4) Art. II, Section 2 regarding equal protection and application of laws; 5) Art. II, Section 32 regarding limits on legislative powers; and 6) Art. II, Sections 34 and 35 regarding laws that provide for the welfare of employees and laws for workers' compensation; and whether Section 2745.01eliminates a common law cause of action for employer intentional tort, replacing it with a statutory cause of action.
Klaus v. United Equity, Inc., Case No. 2008-0894. Issues: 1) Whether the "deliberate intent" requirement in an intentional tort claim against the employer requires the employee to establish that the employer was consciously aware of the consequences of an egregious risk of injury that fell outside the risks to which the employee is ordinarily exposed. See Ohio Rev. Code §2745.01(B). 2) Whether the employee must demonstrate that harm is substantially to result from the employer's conduct AND that the employer was aware that harm was substantially certain to occur.
Kaminski v. Metal & Wire Products Company, Case No. 2008-0857. Issue: Whether Ohio Rev. Code §2745.01 complies with Article II, Section 34 of the Ohio Constitution regarding passing laws that provide for the welfare of employees and with Art. II, Section 35 regarding passing laws for workers' compensation.
Stetter v. R.J. Corman Derailment Services, LLC, Case No. 2008-0972. Issue: whether Ohio Rev. Code §2745.01 complies with: 1) Article I, Section 5 of the Ohio Constitution regarding a citizen's right to a jury trial in civil cases; 2) Art. I Section 1 regarding a citizen's right to a remedy by law; 3) Article I, Section 16 regarding a citizen's right to due process including access to open courts to remedy injuries; 4) Art. II, Section 2 regarding equal protection and application of laws; 5) Art. II, Section 32 regarding limits on legislative powers; and 6) Art. II, Sections 34 and 35 regarding laws that provide for the welfare of employees and laws for workers' compensation; and whether Section 2745.01eliminates a common law cause of action for employer intentional tort, replacing it with a statutory cause of action.
March 1, 2009
Upcoming US Supreme Court Decisions
14 Penn Plaza, LLC v. Pyett, Case No. 07-581. Issue: Whether an arbitration clause in a collective bargaining agreement that waives the union members' right to a judicial forum for their statutory discrimination claims is enforceable. Oral argument held on December 1, 2008.
Gross v. FBL Financial Services, Inc., Case No. 08-441. Issue: Whether an employee must present direct evidence of discrimination to obtain a mixed-motive instruction in a non-Title VII discrimination (Age Discrimination in Employment Act). Oral argument set for March 31, 2009.
Ricci V. DeStefano, Case No. 07-1428. Issue: Whether a municipality may reject the results of an otherwise valid civil service selection that yields unintended racially disproportionate results, for reasons of race, absent the demonstration required by Title VII. Oral argument set for April 22, 2009.
Gross v. FBL Financial Services, Inc., Case No. 08-441. Issue: Whether an employee must present direct evidence of discrimination to obtain a mixed-motive instruction in a non-Title VII discrimination (Age Discrimination in Employment Act). Oral argument set for March 31, 2009.
Ricci V. DeStefano, Case No. 07-1428. Issue: Whether a municipality may reject the results of an otherwise valid civil service selection that yields unintended racially disproportionate results, for reasons of race, absent the demonstration required by Title VII. Oral argument set for April 22, 2009.
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