WIRTW #106

Workplace Technology Issues

• On whether emails sent by an employee to his or her attorney using an employer’s email system is protected by the attorney client privilege – compare Howard Bashman’s How Appealing to Electronic Discovery Law.

• The $1-Million Email Suit, courtesy of Roger Matus’ Death By Email.

• Sample Social-Media Guidelines, complied by Molly DiBianca at the Delaware Employment Law Blog.

• Defeating Liability For Employees' Off-Duty Internet Activity, from Workplace Privacy Counsel.

In the News

• New GAO Report on Civil Rights Enforcement During the Prior Administration, by Marcia McCormick at the Workplace Prof Blog.

• Tiger by the Tail: Employment Lessons? – via The Word on Employment Law with John Phillips.

• Employment Law Backlash, from Philip Miles’s Lawffice Space.

Wage & Hour & Benefits

• DOL Agrees: With Intermittent Leave, Enough Is Enough, from BLR’s HR Daily Advisor.

• Wanna Know a Secret? U.S. Department of Labor Updates Free Guide on Laws for Employers, by Dan Schwartz at the Connecticut Employment Law Blog.

• COBRA Subsidy Likely To Expand - Proposed Legislation Would Extend and Expand Subsidy for Former Employees, via Hunton Employment & Labor Perspectives.

• Learned Professionals-Employers Take Care, by the Overtime Advisor.

• Does your return-to-work policy run afoul of the ADA? – from Sindy Warren at the Warren & Hays Blog.

Office Holiday Parties

• Top 5 Holiday Party Tips, crafted by Mark Toth’s Manpower Employment Blawg.

• 20 Tips for Your Workplace Holiday Non-Party, from U.S. News & World Report.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Are Christmas closings discriminatory?

HR Review, a British HR website, asks the following question: “Is closing office for  Christmas ‘indirect discrimination’?” For example, would anyone doubt the discriminatory nature of a policy that offers maternity leave to new moms but denies the same to new dads? Yet, no one bats an eye when a business shuts down, with pay, for Christmas, but requires its Jewish employees to use a vacation day if they want to be paid to stay home on Yom Kippur.

I have two thoughts:

1. This question does not compare apples to apples. Businesses offer designated paid holidays as a benefit to employees. Some are religious and some are not. If a business remained open on Christmas (a hospital, for example) and gave its Christian employees the day off with pay and without requiring the use of a vacation day, employees of other faiths would have a legitimate complaint. But, granting a paid day off to all employees as a benefit is simply not a fair comparison.

2. An employer does not have to make a religious accommodation if it imposes an undue hardship. In religious discrimination cases, undue hardship is a low standard – anything more than a de minimus cost or burden. The possible accommodation – being paid for a religious holiday without using a vacation day – would impose an undue hardship. An employee should not expect to receive what would amount to an extra paid vacation day just because of a religious affiliation.

Everyone enjoy your day off in a few weeks.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Cleveland bans discrimination based on gender identity and expression

Cleveland’s city ordinances already prohibit employment discrimination based on sexual orientation. As of this week, you can add “gender identity and expression” to Cleveland’s expansive list of protected classes. Violations carry a potential $1,000 fine and 30-day jail sentence.

Cleveland’s ordinance may be foreshadowing of broader state and federal legislation, both of which would grant protected status for sexual orientation and gender identity:

• Ohio House passes bill banning sexual orientation discrimination; fight moves to Senate
• Do you know? Sexual orientation and gender identity discrimination
• ENDA Now “Top Priority” for Obama Administration (courtesy of Paul Secunda at the Workplace Prof Blog)

For now, if you are an employer located in the City of Cleveland, at a minimum you should amend your EEO and anti-discrimination policies to cover gender identity.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Do you know? Opposing counsel may have access to your employees during litigation

Businesses often think that once litigation is filed, their employees are off limits to the other side, absent a deposition subpoena. After all, conventional wisdom teaches that it is unethical for an attorney to communicate with someone known to be represented by an attorney without the other attorney’s consent. At least in Ohio, however, such thinking is incorrect and can lead to disastrous results.

According to Advisory Opinion 2005-03 [DOC], an opposing party is only prohibited from speaking to a small fraction of a business’s current employees. 

Communications with Current Employees

• Opposing counsel is only prohibited from communicating with corporate employees who supervise, direct or regularly consult with the corporation’s lawyer concerning the matter, or has authority to obligate the corporation with respect to the matter, or whose act or omission in connection with the matter may be imputed to the corporation for purposes of civil or criminal liability.

• Opposing counsel may always communicate without the consent of a corporation’s lawyer with any other current employees.

Communications with Former Employees

• Opposing counsel may communicate with any former employees of the corporation without notification or consent of corporate counsel.

• An attorney may not, however, communicate if a former employee is represented by his or her own counsel in the matter, or if a former employee has asked the corporation’s counsel to provide representation in the matter.

Thus, the only employees to whom an opposing attorney absolutely cannot speak are current employees whose actions can bind the company or who are actively involved in the litigation decision making. All other employees – past and present – are fair game.

Further, businesses could find themselves defending an offshoot retaliation claim if they try to interfere with an employee who wants to talk to or assist the other side.

Next Tuesday we’ll look at Federal Rule of Civil Procedure 26(b)(3)(C), which gives employers some protections via the discovery of witness statements.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Court orders forensic examinations of defendant's hard drives to remedy discovery abuses

Although it's hard to tell from the opinion, it’s safe to assume that Bennett v. Martin (Ohio Ct. App. 11/24/09) [PDF] started out like any other run of the mill discrimination lawsuit. Then, the defendant started playing hide the ball in discovery, which, after lots of motions, led to the trial court ordering the forensic imaging of the employer’s hard drives to confirm or deny the existence of certain documents. Bennett is an excellent lesson in what can go wrong in litigation, and I commend it to your reading so that you can see how garden variety discovery disputes can quickly escalate and consume an entire case.

The bottom line for employers (and really any litigant) – pick your battles. If the court thinks you’re being dishonest with your opponent, it will give the other side latitude to figure it out. If the court thinks you’re being dishonest with it (as was the case in Bennett), then all bets are off.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

WIRTW #105

I broken this week’s post holiday review into categories. I figured I’d make it easier for everyone to follow in their post-Turkey and pumpkin pie haze.

Technology in the Workplace

• Larry Johnson: A Twitter Termination – courtesy of Molly DiBianca at the Delaware Employment Law Blog.

• Social Networks and Employment Law: Are you Putting your Organization at Risk? [PDF] – by Peopleclick.

• Employee Privacy: What’s Your Policy? – from Sindy Warren at the Warren & Hays Blog.

• LinkedIn Recommendations - A Hot Topic Among HR Professionals, But Should It Be? – by Dan Schwartz at the Connecticut Employment Law Blog. I wrote on this issue over the summer, and have an opinion very different from Dan’s.

• Discriminatory Twist in Networking Sites Puts Recruiters in Peril – by Workforce Management.

• Fake Job Reference Services Add New Wrinkle to Screening – by Jason Morris at the IQ Blog.

Religious Discrimination

• Dress Code v. Religious Beliefs: Who wins? – via Debra Reilly’s Workplace Investigations.

• When faith collides with fashion – from Michael Maslanka’s Work Matters.

• I’ve also previously given my thoughts on this issue – Religious accommodation versus public image.

Sexual Harassment

• How Can a Sexual Harassment Investigator Tell if the Alleged Conduct was Unwelcome? and Choose Wisely When Using an Employee to Conduct Your Workplace Investigation – both from Debra Reilly’s Workplace Investigations.

• Virtual Harassment: When Online Behavior Becomes a Real-World Problem – by Brian Molinari at the Prima Facie Law Blog.

• Stare Masters: Can Co-Worker Ogling Spark a Harassment Claim? – via Mindy Chapman’s Case in Point.

Wage & Hour

• Financial Service Workers May Be Glorified “Production Workers” Who Are Entitled to Overtime -- Davis v. J.P. Morgan Chase & Co. – from Brian Van Vleck at the California Workforce Resource Blog.

• Employees Are Exempt or Non-Exempt - Not Both – by the Overtime Advisor.

• More Enforcement for Wage and Hour Violations – via Mary Keating’s Maryland Employment Law Developments.

• U.S. Department of Labor Announces (Again) Increased Wage and Hour Enforcement – via Eric Welter’s Laconic Law Blog.

Miscellaneous

• A dog eats dog world: Petsmart sues over noncompete – from Rob Radcliff’s Smooth Transitions.

• Supreme Court Looking at Taking Case to Resolve “Cat’s Paw” Issue – via the HR Lawyer’s Blog. For more on the Cat’s Paw, see EEOC settles landmark “cat’s paw” discrimination case and The “Cat’s Paw” is alive and well in the 6th Circuit -- Pro se plaintiff’s trial win affirmed by Sixth Circuit.

• Union Election Win Rate Continues Upward In 2009 - 73% Win Rate Casts Further Doubt On Need For EFCA – by Hunton Employment & Labor Perspectives.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Insurance company pulls disability benefits over Facebook photo

A Canadian woman has lost her disability benefits because of photos pasted on Facebook. Cleveland.com has the details:

A Canadian woman on sick leave for depression said Monday she would fight an insurance company's decision to cut her benefits after her agent found photos on Facebook of her vacationing, at a bar and at a party. Nathalie Blanchard said Monday she was diagnosed with major depression and was receiving monthly sick-leave benefits until payments dried up this fall. When Blanchard called her insurance provider, Manulife, to find out why, she says she was told the Facebook photos showed she was able to work.

This story raises some practical tips for employers. There is a wealth of information about employees publicly available on the internet. Having said that, such information must be accessed and used responsibly. Employers should avoid using surreptitious means to access employees’ social networking. Also, employers should guard against the use of any protected information. For example, medical information could lead to an ADA claim, regardless of whether the employee voluntarily put that information on the web for the world to see.

For more on this story, click over to the thoughts of my fellow bloggers and legal journalists:

• Lowering the Bar: Facebook Pics Prove You Aren't Disabled, Insurer Tells Depressed Woman.
• Toronto Employment Law Blog: Insurance Company to applicant; According to your Facebook photos, you don't look too depressed to work.
• Employer Law Report: Facebook Photos Prompt Termination of Long Term Disability Benefits.
• Law.com: Insurer Questions Woman’s Depression Claim After Spotting Her Party Pics on Facebook.
• ABA Journal: Depressed Woman Loses Leave Benefits After Facebook Shows Her Having Fun.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.