12 is the magic number: 12 thoughts for your workplace

Today is 12/12/12. The number 12 holds a lot of historical significance. There are 12 tribes of Israel, 12 months in the Gregorian calendar, 12 signs of the zodiac, 12 days of Christmas, and 12 original studio albums released by the Beatles (in the UK).

Since today won’t come around for another 100 years, I thought I’d honor its unique date with 12 thoughts to help better your workplace.

1. Review your employee handbooks and other personnel policies (annually is preferred).

2. If you don’t have policies addressing social media and the other roles technology plays in your workplace, draft one(and train your employees on them).

3. Hold company-wide harassment training (least once every two years, if not every year).

4. Make it a point to rid your workplace of bullies (even though there is no law against it).

5. Even if your business is not a jurisdiction that bans sexual orientation discrimination, adopt a policy outlawing it anyway.

6. Audit your wage and hour practices.

7. Document all discipline and performance problems.

8. Do not make promises to your employees that you cannot keep.

9. Make hiring and firing decisions based on performance.

10. Be more understanding of your employees’ family responsibilities outside of the office.

11. Employ the golden rule — treat your employees as you would want to be treated.

12. Have fun (but not too much fun).

12 things I learned on my summer vacation

I spent the last two weeks in Europe. Germany to be exact, and to be more precise, Eggenstein-Leopoldshafen, with jaunts to Paris and Munich. It was a dream holiday, spent visiting, and touring with, our German daughter (an exchange student who lived with us two years ago) and her family. With 16 days of vacation behind me, here is what I learned:

1. I have very resilient kids. We walked, a lot. According to my iPhone health app, we walked between 8 and 12 miles per day. And my kiddos (ages 7 and 9) went along for the ride, with very few complaints, all things considered.

A photo posted by Jon Hyman (@jonhyman) on Aug 12, 2015 at 10:56am PDT

2. I know the answer to the question, “How many steps does that church tower have?” We climbed Sacré Coeur in Paris, Notre Dame in Strasbourg, St. Peter in Munich, and the Perlach Tower in Augsburg, and each has 300 steps (give or take). A few pointers. Yes, the views are worth it, always. And, if the bell tower happens to be a working bell tower, the bells are loud (especially, as was the case in Augsburg, when you summit at high noon).

3. Europe is basically one big pastry shop. If it wasn’t for the fact that Europeans walk everywhere (see #1), they’d all weigh 400 pounds from the immense amount of carbs they consume in pastry form. Then again, when those pastries are les macarons at Ladurée on the Champs-Élysées, you don’t really care.

A photo posted by Jon Hyman (@jonhyman) on Aug 7, 2015 at 7:24am PDT

4. Every restaurant should be equipped with a playground. And I’m not talking about a McDonald’s playland, but a bona fide playground that will genuinely entertain the kids while the adults enjoy their meals. Such was the case at the biergarten we visited outside of Munich with our hosts’ family and friends. Also, the world would be a better place if we more often embraced the notion that the language of play is universal.

5. The Eiffel Tower is always beautiful. Yes, it’s touristy. And, yes, it’s magnificent, at day or at night, from the top, from the bottom, or from a distance.

A photo posted by Jon Hyman (@jonhyman) on Aug 5, 2015 at 11:22am PDT

6. The best part of vacations often are unplanned. Whether it’s an expected drive through an Austrian Alps lake, an impromptu classical music dance party in a Munich garden, or a photo-bomb that wasn’t meant to be videoed in slo-mo.

A video posted by Jon Hyman (@jonhyman) on Aug 10, 2015 at 2:02pm PDT

7. German beer is awesome. In this case, bigger really is better.

8. German BBQ is the real deal. One half of our hosts, Michael, loves to cook American barbecue. And he can slow-cook some damn fine fall-off-the-bone ribs. I had to travel all the way to Germany for some of the best barbecue I’ve ever had. Yes, we also ate schnitzel and sausages, and, yes, it was awesome too.

9. Europe is easy to navigate, even if you only speak English. Yet, by the end of our fortnight I had gained enough confidence to navigate shops and the grocery store on my own, more or less in German. Also, we found the Parisians to be extremely patient with our French and English, as long as you started with a “bonjour” and showed an effort. My daughter, on the other hand, was more than happy to show off her 4 years of French by ordering food in restaurants, asking for help, and even making confession at Notre Dame, all en français. Quick tip: If you’re driving in Germany, “Ausfahrt” means “exit”; it’s not the most popular city name in Germany.

10. Fast is fast, no matter where you are. I love the no-speed-limit German autobahn, and the 190 mph TGV we took to Paris. Very cool to travel that fast on land.

11. Gracious hosts and good friends make everything better. I was so worried that our European vacation could not live up to the hype I had built up in my brain. I’m happy to report it blew the roof off the expectations. I was sad to leave Germany after an awesome two weeks, and could have stayed much longer. Thanks Michael Jung, Karin Jung, Alexa Jung, and, of course, our German daughter, Zarah Jung, for being amazing hosts and tour guides. While all of the experiences, sights, touring, and eating were great, the best part of the trip was getting to know the rest of the Jungs better. Thanks again for everything. We will miss you, and we can’t wait for our next adventure.

12. Employees need vacations. I’ve always been a strong believer in vacations. The past two weeks convinced me of their need for all employees. I will return to work recharged and rejuvenated. You should encourage your employees to take vacations and do the same. How do you accomplish this goal?

• Make a meaningful vacation benefit available for all employees.
• Do not permit employees to roll-over unused vacation days. This benefit, should be use-it-or-lose-it. Otherwise, you risk employees not using it on an annual basis.
• Allow employees to disconnect while on vacation. A vacation will not achieve its therapeutic goal if employees are required to check in via email or participate in conference calls. If your workplace is not sufficiently cross trained, and your employees are not team players, to permit this level of disconnection, then you have bigger problems you need to address.
• Set an example from the top. How many of your executives and managers say, “I haven’t taken a real vacation in two years.”? If this is the case, you need to take a step back, relax, and book some bona fide time off, ASAP.

Is New York the beginning of the end for America’s poor family leave laws?

My two working-parent family

It is freakin’ hard to be a working parent in America. It is even more difficult when both mom and dad work.

It’s not just childcare, but also doctors’ appointments, kids’ sick days, summer vacations, winter and spring breaks, Labor Days, Memorial Days, and all the other “Days” (and don’t get me started on “teacher in-service days”).

Beginning January 1, 2018, New York is implementing the start of solution for any employees that work in that state.

Does it violate the ADA to work an employee in excess of a work restriction?

Rita Morrissey is a licensed practical nurse who worked for 15 years for The Laurels of Coldwater, a skilled nursing and rehabilitation center. In 2012, she injured her back outside of work, and submitted a note to her employer from her primary care physician limiting her to no more than 12 hours of work per shift. Coldwater refused the accommodation, telling Morrissey that it would not accommodate any medical condition that did not stem from a work-related injury.

Do you know? 12% of employees knowingly violate IT policies

According to a recent survey conducted by IT security company Fiberlink (H/T Workplace Diva), 12% of employees admit to knowingly violating IT policies. What types of violations might be occurring?

• Inappropriate or excessive use (YouTube, shopping, gaming, pornography).
• Misappropriation of confidential information.
• Harassment of co-workers or others.
• Moonlighting (e.g., checking Mary Kay sales).

I think the 12% number is light. I would bet that it’s closer to one-quarter to one-third of employees that misuse their employers’ technology. What can you do to best protect yourself. Let me suggest a seven-point plan.

1. Audit your internet and email systems. Take stock of how much time employees spend on-line, what types of sites are being visited, and the breakdown of personal use versus work use. Once you get a handle on how your systems are being used, you can figure out what type of policy you want for your workplace, and how restrictive it needs to be.

2. Draft and implement a Technology Policy. It should cover computers, email, social networking, and mobile devices. For more on how to draft this type of policy, see Do you know? 10 tips for drafting a workplace electronic communications policy.

3. Cross-reference the Technology Policy in your Harassment Policy and training, and in any confidentiality policies, business ethics policies, and non-competition agreements.

4. Require all employees to sign an acknowledgement that they received the policy, read it, had the opportunity to ask any questions about it, and understand it.

5. Train all employees on the ins and outs of the policy, including what you consider inappropriate use of the internet and email, and that violations will lead to discipline or termination.

6. Apply and enforce the policy fairly, consistently, and non-discriminatorily.

7. At least annually, review and if necessary revise policies to keep them legally up-to-date.

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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.

To taking the high road and not burning bridges…

Conan O’Brien has every right to flat out pissed at NBC. They kept him tethered to his 12:35 a.m. slot for five years by promising him The Tonight Show, and then pulled the plug after a short seven months because of their own programming ineptitude. The following is Conan’s witty, yet graceful, response to his bosses at NBC (via MSNBC.com):

People of Earth:

In the last few days, I’ve been getting a lot of sympathy calls, and I want to start by making it clear that no one should waste a second feeling sorry for me. For 17 years, I’ve been getting paid to do what I love most and, in a world with real problems, I’ve been absurdly lucky. That said, I’ve been suddenly put in a very public predicament and my bosses are demanding an immediate decision.

Six years ago, I signed a contract with NBC to take over The Tonight Show in June of 2009. Like a lot of us, I grew up watching Johnny Carson every night and the chance to one day sit in that chair has meant everything to me. I worked long and hard to get that opportunity, passed up far more lucrative offers, and since 2004 I have spent literally hundreds of hours thinking of ways to extend the franchise long into the future. It was my mistaken belief that, like my predecessor, I would have the benefit of some time and, just as important, some degree of ratings support from the prime-time schedule. Building a lasting audience at 11:30 is impossible without both.

But sadly, we were never given that chance. After only seven months, with my Tonight Show in its infancy, NBC has decided to react to their terrible difficulties in prime-time by making a change in their long-established late night schedule.

Last Thursday, NBC executives told me they intended to move the Tonight Show to 12:05 to accommodate the Jay Leno Show at 11:35. For 60 years the Tonight Show has aired immediately following the late local news. I sincerely believe that delaying the Tonight Show into the next day to accommodate another comedy program will seriously damage what I consider to be the greatest franchise in the history of broadcasting. The Tonight Show at 12:05 simply isn’t the Tonight Show. Also, if I accept this move I will be knocking the Late Night show, which I inherited from David Letterman and passed on to Jimmy Fallon, out of its long-held time slot. That would hurt the other NBC franchise that I love, and it would be unfair to Jimmy.

So it has come to this: I cannot express in words how much I enjoy hosting this program and what an enormous personal disappointment it is for me to consider losing it. My staff and I have worked unbelievably hard and we are very proud of our contribution to the legacy of The Tonight Show. But I cannot participate in what I honestly believe is its destruction. Some people will make the argument that with DVRs and the Internet a time slot doesn’t matter. But with the Tonight Show, I believe nothing could matter more.

There has been speculation about my going to another network but, to set the record straight, I currently have no other offer and honestly have no idea what happens next. My hope is that NBC and I can resolve this quickly so that my staff, crew, and I can do a show we can be proud of, for a company that values our work.

Have a great day and, for the record, I am truly sorry about my hair; it’s always been that way.

Yours,

Conan

Do you think NBC will be more or less likely to work with Conan to amicably resolve this dispute because of how he is handling himself? Conan is much better served by issuing this respectful, witty, yet pointed statement, than having his lawyers (and trust me, he has lawyers advising him every step of the way) threaten to unleash unholy hell upon NBC. Kudos for Conan for taking the high road and explaining why he is making his decision without unnecessarily skewering the corporate executives whom he must believe screwed him.

Employees leave businesses each and every day, yet many believe that it is acceptable to burn bridges as they run from one employer to another. For example, it never ceases to amaze me how many employees think its better for them to open a competing shop and poach customers instead of sitting down with their former employer to work out the terms of an existing noncompetition agreement. Employees are best served following Conan’s example in exiting a business – even if they have to swallow a little bit of pride and take the high road.

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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.

You might want to reconsider if you send your FMLA forms via regular mail

One of the very first things a lawyer learns in law school is the “mailbox rule.” This rule simply states that if a letter “properly directed is proved to have been either put into the post-office or delivered to the postman, it is presumed … that it reached its destination at the regular time, and was received by the person to whom it was addressed.” It gives the benefit of the doubt to the sender, based on the reliability of the U.S. Postal Service.

Well, it’s 2014, and at least one federal court of appeals is no longer enamored with the reliability of the U.S. Postal Service. In Lupyan v. Corinthian Colleges, Inc. (3d Cir. 8/5/15) [pdf], the 3rd Circuit Court of Appeals (which covers Pennsylvania, New Jersey, and Delaware), rejected the mailbox rule and ruled that its presumption does not apply when an employer sends FMLA forms via regular snail mail, and the employee, without any other support, denies that he or she received the forms in the mail.

Here are the facts. Lisa Lupyan, an instructor at Corinthian Colleges, took a personal leave of absence for depression. While out, she sent the school a completed FMLA medial certification supporting her leave. As a result, the employer converted the leave from “personal” leave to “FMLA” leave, and mailed, via regular U.S. mail, the appropriate FMLA forms designating her absences as such. When Lupyan attempted to return to work after 14 weeks, the employer told her that it had already terminated her because she had failed to return after her 12 weeks of FMLA had expired. 

The court concluded that because the employer could not prove that Lupyan had received the forms, she was entitled to a jury trial on her FMLA claims.

CCI provided no corroborating evidence that Lupyan received the Letter. The Letter was not sent by registered or certified mail, nor did CCI request a return receipt or use any of the now common ways of assigning a tracking number to the Letter. Therefore, there is no direct evidence of either receipt or non-receipt….  Accordinly, we hold that evidence sufficient to nullify the presumption of receipt under the mailbox rule may consist solely of the addressee’s positive denial of receipt, creating an issue of fact for the jury

More importantly, the court opined on the type of notice an employer should expect to provide in today’s modern age.

In this age of computerized communications and handheld devices, it is certainly not expecting too much to  require businesses that wish to avoid a material dispute about the receipt of a letter to use some form of mailing that includes verifiable receipt when mailing something as  important as a legally mandated notice. The negligible cost and inconvenience of doing so is dwarfed by the practical consequences and potential unfairness of simply relying on business practices in the sender’s mailroom.

What does this mean to your business? Stop sending FMLA notices by regular U.S. mail. Instead, use a method that enables you to prove delivery.

1. If you hand-deliver the notices to an employee, have the employee sign and date a receipt for the documents.
2. If you mail, send via a method that permit you to track delivery — whether it’s certified mail with a green card to return, or an express delivery service with a tracking number.
3. If you email, click the box on Outlook that will send a delivery notice upon receipt.

I was also planning to write a long dissertation on what this employer did wrong, how it failed to effectively communicate with the employee during and after her leave, and how a few simple phone calls could have avoided this entire mess. Then I read Jeff Nowak’s thoughts on his FMLA Insights blog, and decided I couldn’t say it any better:

I see such a lost opportunity here. Couldn’t this mess have been avoided had the College simply kept in regular contact with the employee while she was on leave? … If Lisa had any doubt whether or not she was on FMLA leave, that ambiguity would have been resolved in one quick phone call from the College a few weeks into her leave. Am I correct? Maintaining regular contact with your employees serves many good purposes: a) it helps you best administer the employee’s FMLA leave and the timing of their return; b) it is the ADA interactive process. Think about it — no sweat if this condition later is considered an ADA disability, since you have been communicating regularly with your employee. As such, you cannot be accused of any break down in the interactive process!; and c) it’s just good business practice to show that you care about your employee and that you want to do what you can to help them get back to work.  Don’t forget we’re in the human relations business!

This decision also is a reminder of what not to do when FMLA leave ends. What else did the College do wrong?  First, it insisted that the employee return without restrictions…. Second, the College did nothing to engage the employee as FMLA leave was expiring as to whether any accommodations were necessary to help the employee return to work.  Come on, employer friends!  This is ADA 101.  Talk to your employee well before expiration of FMLA leave to begin determining whether they might need some assistance to return to work.

Maternity leave issues continue to confound employers

Maternity leave is one of the most misunderstood employment law issues for businesses. Two laws generally govern workplace maternity leave. First, the Family and Medical Leave Act, which mandates 12 weeks of maternity leave for employees who worked at least 1,250 hours in the prior 12 months for businesses with 50 or more employees. Secondly, the employment discrimination laws require that pregnant women be treated no differently than people with similarly debilitating conditions.
Ohio employers often misbelieve that if they are too small for FMLA coverage or if the FMLA does not cover a specific employee, they can deny maternity leave under a neutral leave of absence policy. As Nursing Care Mgmt. of America v. Ohio Civil Rights Commission (Licking Cty. 3/11/09) illustrates, under Ohio law employers that do not give all pregnant employees a reasonable amount of maternity leave, regardless of the employer’s leave policy, act at their own peril.
Pataskala Oaks Care Center had a neutral leave of absence policy that provided 12 weeks of leave for those employees with at least one year of service. After working at Pataskala Oaks for eight months, Tiffany McFee provided a note from her doctor stating that she was medically unable to work because of pregnancy-related swelling, and that she could return to work six weeks after delivery. Pataskala Oaks terminated her employment three days after delivery because she did not qualify for leave under its policy. The appellate court ruled that Pataskala Oaks committed unlawful sex discrimination by not granting McFee a reasonable maternity leave.
Ohio has specific regulations that cover maternity and childbirth leaves of absence – Ohio Admin. Code 4112-5-05(G). The key part of that section provides:

(2) Where termination of employment of an employee who is temporarily disabled due to pregnancy or a related medical condition is caused by an employment policy under which insufficient or no maternity leave is available, such termination shall constitute unlawful sex discrimination.

Pataskala Oaks argued that it had a leave policy, but McFee did not qualify under it because of her short tenure. The Court did not buy Pataskala Oak’s argument:

Termination of an employee disabled due to pregnancy is prohibited if the employer provides no maternity leave or insufficient maternity under its employment policy. In this case, it is undisputed that Pataskala Oaks had no maternity leave available to McFee at the time of her pregnancy disability….
Pataskala Oaks does not deny that McFee requested maternity leave, and that it terminated McFee without providing her maternity leave for a reasonable period of time. Pursuant to 4112-05-05(G)(2) such termination “shall constitute unlawful sex discrimination”.

This case is important for all Ohio businesses. Ohio law requires that all pregnant employee be provided a “reasonable” maternity leave, regardless of the the employer’s size, the employee’s tenure, or the language of a leave policy. If an employee asks for maternity on her first day of employment, it must be given and she must be restored at the end of the leave. The open issue is what “reasonable” means. Is it a fixed amount of time? Set by a doctor’s certification? Does it include bonding with a newborn or is it limited to medical necessity? These open questions will be answered on a case-by-case basis. What we know for sure is that zero maternity leave is a quick road to liability.

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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.

BREAKING: House passes broad coronavirus stimulus and relief package, including paid sick and family leave

It’s been 12 days since I asked if coronavirus the thing that will finally make paid family and sick leave a national reality. Twelve days in the COVID-19 news cycle feels like 12 years. Regardless, I am happy to report that in the very early hours of this morning, by a bipartisan vote of 363-40, the House passed the Families First Coronavirus Response Act, sweeping legislation that will provide myriad emergency relief to businesses and individuals, including paid family and sick leave.

Shortly after the House passed the bill, President Trump tweeted his support, virtually assuring a swift run through the Senate and his signature.

Federal court takes on the word “n***er” in a reverse race discrimination case

The n-word has been discussed a lot in the media this week, with the announced sanitization of Huckleberry Finn. (Are Roots and To Kill a Mockingbird next? But I digress.) In Burlington v. News Corp. (12/28/10), a Philadelphia federal judge has ordered that a jury must decide whether it is acceptable for a black employee, but not a white employee, to use that word in the workplace. The opinion also contains a lengthy narrative (excerpted below) discussing the larger implications of the differential use of the word between white America and black America.

This case involves the firing of a white television news anchor over his non-pejorative, context-appropriate, use of the n-word during a newsroom meeting. Thomas Burlington, who is white, claims race discrimination because the station did not discipline, let alone fire, three black employees who used the same word in similar meetings in similar contexts. The court agreed that Burlington’s different treatment justifies a jury trial on the issue:

Plaintiff’s use of the word elicited a severely negative reaction, brought the meeting to a close before he could explain himself, and was followed by his immediate suspension, while Jervay’s use of the word elicited only Defendants’ defense of his actions. Plaintiff is white. Jervay is African American. Management’s inability to explain why Jervay was allowed to use the word while Plaintiff was not permits the inference that their races influenced the decision, and that a similarly situated African American employee was treated more favorably than Plaintiff under similar circumstances.

The court also took on society’s conventional use of the controversial word:

Justice Holmes observed that “[a] word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used.” This is certainly so with this particular word. Merriam-Webster notes in the usage section of its definition of the word that “[i]ts use by and among blacks is not always intended or taken as offensive, but … it is otherwise a word expressive of racial hatred and bigotry.” … Professor Kennedy, an African American, made the observation that

many people, white and black alike, disapprove of a white person saying “nigger” under virtually any circumstance. “When we call each other ‘nigger’ it means no harm,” [rapper] Ice Cube remarks. “But if a white person uses it, it’s something different, it's a racist word.” Professor Michael Eric Dyson likewise asserts that whites must know and stay in their racial place when it comes to saying “nigger.” He writes that “most white folk attracted to black culture know better than to cross a line drawn in the sand of racial history. Nigger has never been cool when spit from white lips.” …

When viewed in its historical context, one can see how people in general, and African Americans in particular, might react differently when a white person uses the word than if an African American uses it.

Nevertheless, we are unable to conclude that this is a justifiable reason for permitting the Station to draw race-based distinctions between employees. It is no answer to say that we are interpreting Title VII in accord with prevailing social norms. Title VII was enacted to counter social norms that supported widespread discrimination against African Americans…. To conclude that the Station may act in accordance with the social norm that it is permissible for African Americans to use the word but not whites would require a determination that this is a “good” race-based social norm that justifies a departure from the text of Title VII.

The n-word is one of the English language’s most volatile words. Few others spark as much debate or as much rancor. We should all be able to agree that it has no place in the workplace. Yet, as this case illustrates, Title VII does not allow for double standards. If you intend to punish its use by white employees, you cannot condone its use by black employees.

Coronavirus Update 3-26-2020 number 2: Is the DOL’s FFCRA notice correct as published?

The speed at which the coronavirus news cycle moves is dizzying.

Is it possible that the DOL’s FFCRA Employee Rights Poster is correct as published, even with it listing a $12,000 cap for paid family leave?

Coronavirus Update 12-21-2020: Ensuring compliance with your Covid safety protocols shouldn’t be a mission impossible

British newspaper The Sun published leaked audio capturing Tom Cruise angrily addressing two crew members who he believed had breached Covid-19 protocols while filming "Mission Impossible 7."

Determining the 12-month period for FMLA leave

The FMLA allows eligible employees to take 12 weeks of unpaid leave during any 12-month period. Don't assume, however, that the FMLA's 12-month period equates to a calendar year. In fact, the FMLA allows employers to choose from four different methods of calculating the 12-month period:

1. The calendar year.
2. Any fixed 12-month "leave year," such as a fiscal year, a year
   required by State law, or a year starting on an employee's
   anniversary date.
3. The 12-month period measured forward from the date any
   employee's first FMLA leave begins.
4. A "rolling" 12-month period measured backward from the date an
   employee uses any FMLA leave.

Employers are free to choose any one of these four methods, as long as the choice is applied consistently and uniformly to all employees. Once a company picks one, it cannot change to another without first giving all employees at least 60 days notice, and only if the change does not cause any employees to lose any leave time.

There are pluses and minuses to each of these options. The first two  options are definitely the easiest to administer. However, they could allow for employees' double-dipping. An employee with a serious health condition could take 12 weeks of leave at the end of the year and 12 weeks at the beginning of the following year (provided the employee recertifies the need for the leave). The same 24-week problem could impact option three.

Under option four, each time an employee takes FMLA leave the remaining leave entitlement would equal any balance of the 12 weeks that had not been used during the immediately preceding 12 months. For example, if an employee has taken eight weeks of leave during the past 12 months, an additional four weeks of leave could be taken. If an employee used four weeks beginning February 1, four weeks beginning June 1, and four weeks beginning December 1, the employee would not be entitled to any additional leave until February 1 of the next year. However, beginning on the next February 1, the employee would only be entitled to four weeks of leave, with an additional four to accrue on June 1. and then again on December 1. This method offers employers the most flexibility, but is clearly the most difficult to administer and track.

Importantly, you have to designate one of these options. If an employer fails to do so, a court will apply the option that provides the most beneficial outcome for the employee.

Calculating the rolling 12-month FMLA leave entitlement

As I’ve previously discussed, the FMLA allows for 4 different ways for employers to calculate its employees’ 12-week leave entitlement:

1. Based on a calendar year.
2. Based on some other defined and fixed 12 month period.
3. Based on the 1st day an employee uses FMLA leave.
4. A rolling 12-month period, measured backward from the date an employee uses any FMLA leave.

There is no doubt that for employers the last option – the rolling 12-month period – is both the administratively burdensome and the most advantageous.

Under this “rolling” 12-month period, each time the employee takes FMLA leave, the remaining leave entitlement is the balance of the 12 weeks that has not been used during the immediately preceding 12 months. The FMLA’s regulations provide some insight into how this works in practice:

For example, if an employee has taken eight weeks of leave during the past 12 months, an additional four weeks of leave could be taken. If an employee used four weeks beginning February 1, 2008, four weeks beginning June 1, 2008, and four weeks beginning December 1, 2008, the employee would not be entitled to any additional leave until February 1, 2009. However, beginning on February 1, 2009, the employee would again be eligible to take FMLA leave, recouping the right to take the leave in the same manner and amounts in which it was used in the previous year. Thus, the employee would recoup (and be entitled to use) one additional day of FMLA leave each day for four weeks, commencing February 1, 2009. The employee would also begin to recoup additional days beginning on June 1, 2009, and additional days beginning on December 1, 2009. Accordingly, employers using the rolling 12-month period may need to calculate whether the employee is entitled to take FMLA leave each time that leave is requested, and employees taking FMLA leave on such a basis may fall in and out of FMLA protection based on their FMLA usage in the prior 12 months. For example, in the example above, if the employee needs six weeks of leave for a serious health condition commencing February 1, 2009, only the first four weeks of the leave would be FMLA-protected.

Choosing the rolling 12-month period will add some administrative burden to your FMLA management, but you will be repaid by the fact that employees cannot double-dip by taking more than 12 weeks of contiguous leave because there should not be an overlap of leave years.

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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.

Coronavirus Update 3-19-2020: The Families First Coronavirus Response Act is law

Five days.

That’s all it took for both parties in both houses of Congress to work together, along with the White House and President Trump, to pass important relief legislation for American workers. We need more cooperation like this to see our country thru this crisis.

Coronavirus Update 8-28-2020: New music Friday / Old 97’s, “Twelfth”

"You know that feeling when you reunite with an old friend and it feels like nothing's changed? That feeling of comfort and camaraderie is kind of what it's like listening to Old 97's." That's how Raina Douris, the host of WXPN's World Cafe, recently described my favorite band when introducing her interview with their frontman, Rhett Miller. It's as if she read my mind every time I hear an Old 97's song.

Last Friday, Old 97's released their twelfth studio album, appropriately titled, "Twelfth." I've listened to it at least that many times since it released, and it already stands among their best (which from me is very high praise).

The 7 key points for employers from the Supreme Court’s Wal-Mart v. Dukes opinion

Yesterday, the Supreme Court unanimously reversed the certification of the class action in Wal-Mart Stores, Inc. v. Dukes. Recall that Dukes sought the certification of a nationwide class of 1.5 million female Wal-Mart employees allegedly denied pay and promotions because of a corporate-wide “policy” of sex discrimination. The reversal was expected; the unanimity of the result (albeit not of the reasoning), however, was not.

The majority grounded its decision on the lack of commonality among the potential class members. Here are the seven key takeaways from the Court’s opinion:

   1. Commonality requires more than an alleged common violation of the same law:

“Quite obviously, the mere claim by employees of the same company that they have suffered a Title VII injury, or even a disparate impact Title VII injury, gives no cause to believe that all their claims can productively be litigated at once. Their claims must depend upon a common contention—for example, the assertion of discriminatory bias on the part of the same supervisor.” [p. 9]

   2. Class certification often requires some analysis of the merits of the underlying claims:

“Here respondents wish to sue about literally millions of employment decisions at once. Without some glue holding the alleged reasons for all those decisions together, it will be impossible to say that examination of all the class members’ claims for relief will produce a common answer to the crucial question why was I disfavored.” [pp. 11-12]

   3. When a company has an announced policy against discrimination, and the alleged discrimination consists of management’s deviation from that policy, it is difficult, if not nearly impossible, to find commonality among those individual decisions:

“[L]eft to their own devices most managers in any corporation—and surely most managers in a corporation that forbids sex discrimination—would select sex-neutral, performance-based criteria for hiring and promotion that produce no actionable disparity at all. Others may choose to reward various attributes that produce disparate impact—such as scores on general aptitude tests or educational achievements…. And still other managers may be guilty of intentional discrimination that produces a sex based disparity. In such a company, demonstrating the invalidity of one manager’s use of discretion will do nothing to demonstrate the invalidity of another’s. A party seeking to certify a nationwide class will be unable to show that all the employees’ Title VII claims will in fact depend on the answers to common questions.” [p. 15]

   4. The larger the proposed class, the more difficult it is to establish a practice common to the class:

“In a company of Wal-Mart’s size and geographical scope, it is quite unbelievable that all managers would exercise their discretion in a common way without some common direction.” [pp. 15-16]

   5. General statistical evidence is insufficient to establish commonality, without something extra to tie those stats to an issue common to the class:

“Other than the bare existence of delegated discretion, respondents have identified no ‘specific employment practice’—much less one that ties all their 1.5 million claims together. Merely showing that Wal-Mart’s policy of discretion has produced an overall sex-based disparity does not suffice.” [pp. 17-18]

   6. Anecdotal evidence also must tie narrowly to a common issue:

“Respondents filed some 120 affidavits reporting experiences of discrimination—about 1 for every 12,500 class members—relating to only some 235 out of Wal-Mart’s 3,400 stores…. Even if every single one of these accounts is true, that would not demonstrate that the entire company ‘operate[s] under a general policy of discrimination,’ … which is what respondents must show to certify a companywide class.” [p. 18] “A discrimination claimant is free to supply as few anecdotes as he wishes. But when the claim is that a company operates under a general policy of discrimination, a few anecdotes selected from literally millions of employment decisions prove nothing at all.” [p. 18, fn. 9]

   7. Class action damages that must be individually litigated (such as backpay) cannot be litigated in a class action that seeks injunctive relief as its unifying point across the class:

“When the plaintiff seeks individual relief such as reinstatement or backpay after establishing a pattern or practice of discrimination, ‘a district court must usually conduct additional proceedings … to determine the scope of individual relief.’ … At this phase, the burden of proof will shift to the company, but it will have the right to raise any individual affirmative defenses it may have…. The Court of Appeals believed that it was possible to replace such proceedings with Trial by Formula…. [A] class cannot be certified on the premise that Wal-Mart will not be entitled to litigate its statutory defenses to individual claims.”

What does all this mean for businesses? It means that class actions alleging employment law violations must be narrowly tied to a specific policy or practice. It means that the best defense against a class action might be a policy directing decision-makers to follow the law. It means that class actions in cases alleging intentional discrimination just became a lot more difficult to establish, and that going forward we will see many more certified classes in disparate impact cases than in disparate treatment cases.

Most importantly, it is not the “unmitigated disaster for historically oppressed employees seeking large-scale workplace justice against their employers,” as argued by Professor Paul Secunda on the Workplace Prof Blog. Instead, I agree with Walter Olson, writing at Cato at Liberty who summed it up best:

To sweep hundreds of thousands of workers (or consumers or investors) into a class as plaintiffs even if they personally have suffered no harm whatsoever— to use sexism at Arizona stores to generate back pay awards in Vermont, and statistical disparities to prove bias without allowing defendants to introduce evidence that a given worker’s treatment was fair—bends the class action mechanism beyond its proper capacity. Also to the point, it is unfair.

Dukes means that corporate America can exhale a huge sigh of relief—a Court that has been surprisingly employee-friendly saved its biggest decision to flex its pro-business muscles.

The Wal-Mart Stores, Inc. v. Dukes opinion is available for download as a pdf form the Supreme Court’s website.

Accuracy counts in drafting job descriptions (a lesson on ADA reasonable accommodations)

Do you have written job descriptions for all of your employees? Henschel v. Clare County Road Commission (6th Cir. 12/13/13) illustrates that if you’re going to claim that a job function is essential, you should probably include it in a written job description.

Wayne Henschel worked as an excavator operator for Clare County Road Commission. He lost his left leg above the knee in a motorcycle accident. His employer refused to permit him to continue operating the excavator, claiming that the ability to haul the excavator to the job site was an essential function of the position. Among the factors that the court of appeals used to reverse the trial court’s grant of summary judgment to the employer on Henschel’s ADA reasonable accommodation claim was the fact that it had omitted the hauling function from its Operator-Excavator job description.

Whether a job function is included in a job description is only one of seven factors courts consider in determining whether that function is essential to the job:

1. The employer’s judgment as to which functions are essential;
2. Written job descriptions prepared before advertising or interviewing applicants for the job;
3. The amount of time spent on the job performing the function;
4. The consequences of not requiring the incumbent to perform the function;
5. The terms of a collective bargaining agreement;
6. The experience of past incumbents in the job; or
7. The current work experience of incumbents in similar jobs.

In this case, the exclusion of hauling from the Operator-Excavator job description was not dispositive in the case, but it certainly didn’t help the employer’s cause.

Here are the practical takeaways for employers:

1. You should have written job descriptions for each position in your organization. They not only help establish reasonable expectations for what you expect from your employees in a position, but it also helps set a baseline for what you do, or do not, have to reasonably accommodate. You must provide a reasonable accommodation to enable a disabled employee to perform the essential functions of a job; you do not, however, have to accommodate the non-essential functions.

2. Accuracy counts. It is hard to establish a job function as essential if it’s omitted from a written job description.

3. Conversely, just because you list a function as “essential” doesn’t mean a court has to take your word for it. If the other six factors cut against you, you’ll have a hard time showing that a job function is essential no matter what your document says.

4. As jobs change, so should their written descriptions. It’s not enough to file away a job description after it’s prepared. You should periodically review it to make sure it’s current, and updated when needed because of changes to the job.

Coronavirus Update 8-6-2020: Congress must pass the Save Our Stages Act #saveourstages

Today I'm taking a brief detour from the employment-law implications of COVID-19 to discuss an issue near and dear to my heart—the devastating impact COVID-19 has had on independent music venues. I am urging you to contact your Representative and Senators to implore them to pass the Save Our Stages Act. 

Coronavirus Update 5-6-2020: How do parents return to work without available childcare?

Childcare is the issue that has gotten the least attention in discussions about employees returning to work. As states begin to slowly reopen and return employees to work, working parents are left wondering who will care for their children if schools, daycares, and camps are closed.