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Category: Commentary & Opinion

Posted on December 21, 2017June 29, 2023

Here’s to 2018 — Wellness, Harassment and Tax Reform’s Effect on Drug Prices

Slovenia
The author and her great aunt stand atop a peak in Slovenia that overlooks Bohinj Valley, part of Triglav National Park. A sojourn back to Slovenia awaits in 2018.

It’s the end of 2017, which means I’ve thinking a lot about what I’m looking forward to in 2018.

There are the personal thoughts, like my extended family’s pilgrimage to Slovenia, the country my grandparents immigrated from. I’m looking forward to a two-day hike up a mountain, followed by a party in a castle with at least 17 of my family members once we descend back to sea level. And then there are work things — topics I’ve grown attached to while researching and covering them this year.

I can’t say I know what developments will happen with these issues, obviously, but they’re issues I’m looking forward to keeping up with next year, and issues that could greatly impact employers.

Wellness Incentives: Ahhh, my pet topic, the one has been a constant since I began this blog for Workforce a year and a half ago. When is a wellness program truly voluntary, and when are a program’s incentives coercive? AARP even filed a lawsuit against the EEOC regarding their final wellness rule, and now the EEOC has to defend its definition of “voluntary.” The question is, if a participating employee gets to pay 30 percent less on insurance premiums for joining a wellness program, is it truly voluntary? That’s a lot of money. And the number 30 really wasn’t rendered with any specific reasoning to begin with.

I’d need to speak to a legal expert in more detail about this case against the EEOC to understand the full scope of this suit. That being said, regardless of how large or small this scope is, it brings up issues that are critical to how companies set up and manage wellness programs. Will the wellness program of 2018 be significantly different than the wellness program of 2017? We’ll have to wait and see.

I’ve yet to find out anything new that has surfaced regarding this lawsuit since the story broke in August. As far as I can tell, the EEOC hasn’t explained its logic behind the percentage. If you come across anything on this, feel free to share it with me. Meanwhile, I’ll be on the lookout for new info.

Harassment: Then there is that Harvey Weinstein-sized elephant in the room to tackle. Workplace sexual harassment awareness has been gaining momentum these past few months, to state the obvious.

I’m curious what will happen with this next year. Despite some people’s claims that the pendulum has swung too far the other way now that a handful of prominent men have resigned or been fired due to sexual harassment or assault allegations, the pendulum has not even begun to swing. This is just the tip of the iceberg. Few people have actually taken responsibility or received jail time for sexual assault/harassment.

A recent NPR article explained how the standard for harassment under the law is so high that only 3 to 6 percent of cases make it to court, and only 2 percent of plaintiffs win their case. I’m curious in the following year what direction this will all go in. Will the #MeToo movement prompt changes in the law at all, like in the legal definition of harassment? What about NDAs? Will anything change in the court — not in the court of public opinion, but in courts that can actually punish people for serious crimes?

The Tax Bill: Many publications have posted workforce implications with the massive tax overhaul, like how commuters might lose transit benefits or how businesses realistically would spend its tax cut money. I was most interested in a throwaway line in a Washington Post article:

“Analysts predict that health insurers and pharmacy benefit managers will see profits 10 to 15 percent higher under the tax overhaul — money they could potentially put into lowering premiums for customers.”

Interesting thought. I have not been able to track down which analysts made this prediction. That being said, I’ll take this at face value for the sake of this argument. Let’s say employers and their employees see lower health and pharmacy costs. My question is, will this be enough to ease the tension of the employer-PBM relationship? PBMs, which act as the prescription-drug middleman between drugmakers and employers, haven’t exactly gone through 2017 free of scrutiny.

pit bull
Ringo the pet pit bull will not be making the family sojourn to Slovenia in 2018.

PBMs have their value. But some employers have been frustrated in recent years as prescription drug prices have risen, especially for specialty drugs.

They’ve also been frustrated with the lack of transparency and vague contracts in the PBM space, according to my sources in an article I wrote in the July/August print issue of Workforce.

What I’m curious about regarding the tax reform bill is, even if prices drop, would they lower enough for employers to forget about their transparency and contract frustrations? I’d expect not, but that’ll be something to look out for next year. Will employers and employees see their prescription drugs costs lower, and if they do, will that ease the criticism leveled against the PBM industry?

Now I’m off for the rest of the year to spend some time with my family and an adorable pit bull (who unfortunately cannot attend the big European trip with us. At 65 pounds, he can’t do air travel). Happy holidays, readers, and see you in 2018!

Andie Burjek is a Workforce associate editor. You can find Workforce on Twitter at @workforcenews. Comment below or email editors@workforce.com.

Posted on December 21, 2017July 30, 2018

The 12 Days of Employment Law Christmas (2017 edition)

Jon Hyman The Practical Employer

For the past five Noels, I’ve concluded my posting year with “The 12 Days of Employment Law Christmas.” As this has become a year-end tradition at the blog, I’m sharing it again with updated verses and links. If you’re feeling brave, post a video of yourself singing along.

(Some musical accompaniment)

On the first day of Christmas,
my employment lawyer gave to me
Harvey Weinstein in a pear tree.On the second day of Christmas,
my employment lawyer gave to me
2 labor changes,
and Harvey Weinstein in a pear tree.

On the third day of Christmas,
my employment lawyer gave to me
3 data breaches,
2 labor changes,
and Harvey Weinstein in a pear tree.

On the fourth day of Christmas,
my employment lawyer gave to me
4 collective actions,
3 data breaches
2 labor changes,
and Harvey Weinstein in a pear tree.

On the fifth day of Christmas,
my employment lawyer gave to me
5 harassment claims,
4 collective actions,
3 data breaches
2 labor changes,
and Harvey Weinstein in a pear tree.

On the sixth day of Christmas,
my employment lawyer gave to me
6 Facebook firings,
5 harassment claims,
4 collective actions,
3 data breaches
2 labor changes,
and Harvey Weinstein in a pear tree.

On the seventh day of Christmas,
my employment lawyer gave to me
7 workplace posters,
6 Facebook firings,
5 harassment claims,
4 collective actions,
3 data breaches
2 labor changes,
and Harvey Weinstein in a pear tree.

On the eighth day of Christmas,
my employment lawyer gave to me
8 LGBT discriminators,
7 workplace posters,
6 Facebook firings,
5 harassment claims,
4 collective actions,
3 data breaches
2 labor changes,
and Harvey Weinstein in a pear tree.

On the ninth day of Christmas,
my employment lawyer gave to me
9 OSHA penalties,
8 LGBT discriminators,
7 workplace posters,
6 Facebook firings,
5 harassment claims,
4 collective actions,
3 data breaches
2 labor changes,
and Harvey Weinstein in a pear tree.

On the tenth day of Christmas,
my employment lawyer gave to me
10 FMLA notices,
9 OSHA penalties,
8 LGBT discriminators,
7 workplace posters,
6 Facebook firings,
5 harassment claims,
4 collective actions,
3 data breaches
2 labor changes,
and Harvey Weinstein in a pear tree.

On the eleventh day of Christmas,
my employment lawyer gave to me
11 employee handbooks,
10 FMLA notices,
9 OSHA penalties,
8 LGBT discriminators,
7 workplace posters,
6 Facebook firings,
5 harassment claims,
4 collective actions,
3 data breaches
2 labor changes,
and Harvey Weinstein in a pear tree.

On the twelfth day of Christmas,
my employment lawyer gave to me
12 accommodations,
11 employee handbooks,
10 FMLA notices,
9 OSHA penalties,
8 LGBT discriminators,
7 workplace posters,
6 Facebook firings,
5 harassment claims,
4 collective actions,
3 data breaches
2 labor changes,
and Harvey Weinstein in a pear tree.

Merry Christmas and happy holidays!
I’ll be back on Jan. 3 to kick off 2018 with the first Worst Employer nominee of the new year.

Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.

Posted on December 20, 2017June 29, 2023

Announcing the Worst Employer of 2017

Jon Hyman The Practical Employer
The day has finally arrived. It’s time to announce the Worst Employer of 2017.

To remind you, we had three finalists in contention for this … honor:

  • The Cancerous Boss — An employee was diagnosed with kidney cancer and required immediate surgery to remove the tumor. His employer denied the request for a 10-day leave of absence, while telling him she doesn’t “need people with cancer working in her office … this is America and in America you have to work even if you’re sick.” She finished by informing him that “with your illness, people die and I cannot keep you as a worker not knowing what is going to happen to you.”
  • The Horny Head of HR — A male HR employee complained that the female head of HR nibbled on his ear while romantically whispering, “I hope you’re not going to sue me.” The nibble followed on the heels of her repeatedly telling him about her and her husband’s swinging lifestyle, hugging him against his will, peppering him with questions about his sexual orientation, and sending various inappropriate text messages, including a picture of a man reading the book, “A** Eating Made Simple,” a video of a masturbating monkey, and a picture of a man with an erection going through airport security.
  • The Racist Boss — An African-American employee complains to her boss about his repeated racist comments in the workplace (“We’ll just make the Mexicans do it,” and telling his African-America employees, “Y’all are my b******.”). Thereafter, he Christmas gifts her a rhinestone-studded purse of the Confederate flag and several photos of him posing with said flag.
The final vote wasn’t close. The winner tallied an astounding 66% of all first place votes.
The Worst Employer of 2017 is…
The Cancerous Boss
At the end of the day, I think people’s choices came down an issue to which they could best relate — needing time off to deal with a serious medical issue.
As for me, I awarded my first place vote to The Horny Head of HR. While the misconduct may not be the most egregious among the contenders, if this is how your HR department functions, you have zero chance of success as a employer. The Horny Head of HR had the second most first place votes (18%), but finished third overall in the weighted score.
Which leaves The Racist Boss and his rhinestone studded Stars-and-Bars purse as the runner up, to assume the title in the event The Cancerous Boss cannot fulfill its duties.
This brings 2017’s contest to a close. I hope everyone had fun reading during the course of the year, and learned something along the way.
The contest will resume on Jan. 2 with the first nominee for the Worst Employer of 2018 — The Holy Harasser.
Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.
Posted on December 19, 2017June 29, 2023

Building a Community in Your Workplace

Andie Burjek, Working Well blog

The Health Enhancement Research Organization recently released a report listing 24 key elements employers can use to create a healthy workplace culture. Many them sound like what my sources often tell me, and a few of them stuck out to me, notably having a “sense of community.”

Taking a step back, I recently started attending a yoga studio near my new apartment as a way to pass the time. It’s $30 for two weeks of unlimited classes, sure, why not? The first thing that stuck out to me was a poster on the studio wall. “How to Build a Community” it read in big bold letters. Forming a community-based habit was one reason I joined these classes, after all. The studio is walking distance from my apartment and my grocery store is on the walk back from class.

Feeling a part of a community isn’t a passive accomplishment. It’s something to search for. One friend pursued her dad’s Lutheran church after years of going to services at a different domination. Another joined a tap dance crew. It takes energy, time and true interest. Some people need it to feel satisfied; others don’t need it at all. It’s very personal.

The poster listed an array of ways to start building a community, including, “Turn off the TV,” “Leave your apartment,” “Ask a question,” “Support neighborhood schools,” “Sit on your stoop” and more suggestions. Reading it got me thinking how one could incorporate these community-building tips in workplace wellness.

A sense of community, at least on a small scale, is common in most workplaces, according to Dan Krick, a member of the HERO Culture of Health Study Committee and the vice president of organizational development at Hexagon Lincoln. A healthy sense of community can lead to many positive outcomes, like higher work performance, lower turnover and a stronger acceptance of company initiatives such as wellness, quality or safety, he added.

For organizations interested in creating a sense of community, Krick suggested a valuable starting point: ask why. Why do you want to create a sense of community? “It may sound silly, but companies that do this well will typically form a strong sense of community because it ties directly to their purpose or values of their organization,” he said.

Once you’ve addressed why, he suggests that companies “hard-wire” programs and practices that support a community. For example, in the onboarding process a company could discover people’s interests and make immediate connects based on what people have in common. “The biggest catalyst for building a strong sense of community is creating forums for people to connect,” Krick said. “That can be social media, and good old-fashioned events that bring people together for discovery of interests and matching of values.”

Meanwhile, that poster gave me a few ideas that I believe fit into workplace wellness. Turn off the TV? Translation: Employees, it’s OK to put your computer on sleep mode. Leave your apartment? That could mean get out of your cube when you can. Maybe that means taking a walk at lunch. Maybe that means that attending conferences, classes or networking events outside of work to help you develop yourself.

Maybe the workplace will be the community employees turn to for staying healthy and connecting with other people. Great! Maybe other people rely on a different community for that, and that should be acceptable, too.

Another one of these 24 elements that help create a healthy workplace intrigued me as well: recruitment and selection. My first thoughts upon reading this: If you only recruit and select people who fit into your culture of health, are you discriminating against people with health issues or against people who simply wouldn’t have interest in joining a workplace wellness program for whatever reason?

It also brought to mind a colleague’s article titled, “The Pros and Cons of Hiring for Cultural Fit.” It’s a timely topic that dives into the recruiting and hiring process and explains the complexity of hiring someone because they’d fit in your culture.

That being said, I asked Krick for an explanation. He said he prefers the word “selection” over “hiring” because it’s more intentional. “With every selection a company is adding or detracting to its culture, so ultimately adding or detracting to every result area — revenue, profits, safety, culture, wellness, you name it,” he said. He added that the right selection decision is important for both the individual and the company, and that companies owe it to the candidate to we accurately illustrate what kind of organization they might be joining.

“We actually do an injustice to the person being recruited if we select them into a strong culture of well-being when they have a value system that does not align,” he said. “I don’t view that as discriminatory, but rather as respecting that individual enough to not put them in a culture that will not fit them.”

Andie Burjek is a Workforce associate editor. You can find Workforce on Twitter at @workforcenews and Andie at @andie_burjek. Comment below or email editors.workforce.com.

Posted on December 13, 2017June 29, 2023

5 Proven Strategies to Guarantee Your Diversity Initiative Produces Results

Intent does not equal impact. Time and again I see organizations with good intentions embark on an enthusiastic endeavor to increase diversity in their workplace.

Time and time again I also see their nonexistent to negative impacts, from failure to create lasting positive change to crash-and-burn disasters rife with unproductive conflict. Often it’s because they didn’t follow one or more of these five proven strategies for diversity and inclusion success – the “new school” way. The good news is it’s never too late to learn and regroup, and a new year presents ripe opportunity for fresh starts!

Strategy No. 5: Hire an Excellent Training Partner. If you’ve invested lots of money in training but seen low to no meaningful results, or you’ve received feedback that D&I training has led to confusion or increased problems, you may have selected a training partner that was inadequate, or not a good fit for your organization’s culture. Not all diversity training or trainers are high quality, especially now that D&I is more common and sought-after than ever before. Engaging an inadequate training partner wastes scarce resources, and undermines the credibility of D&I efforts. Ensure you’re set up for success before making a game-changing investment by asking: (1) Do we need training? Sometimes leadership coaching, systems change, or data collection is a more appropriate intervention, and a true D&I professional will help you figure this out. (2) Do we need it now? Training usually yields a higher ROI after proper assessment or other interventions. (3) Who do we already have internally with expertise in organizational development, adult learning, instructional design and facilitation? Ask potential internal and external training partners strategic questions to determine expertise and fit.

diversity and inclusionStrategy No. 4: Measure the Meaningful Impact of Training … and Reinforce It. If your D&I training got rave reviews, but you’ve seen no-to-low meaningful outcomes in your culture, systems, or leadership, you may not have set training up for success back in the workplace. Not creating a robust plan for implementation and systems change following D&I training wastes resources. It’s a false belief, even among some training professionals, that the effects of training can’t be measured. This belief undermines the credibility of D&I, and reflects poor stewardship of an organization’s trust and investment of budget, time and talent. Before investing in training, ensure you’re set up for success by asking: (1) What are the specific goals or learning objectives for the training? (2) What is our baseline? In other words, where are we now in relation to our training goals? (3) How will we know whether this training was a success? What metrics will we track, and how will we measure it?

Strategy No. 3: Identify and Measure Meaningful Goals. If you don’t have D&I goals, or your goals are only to start employee resource groups or recruit/hire/promote more people of color or women, stop what you’re doing and focus here. Launching D&I efforts with no clear goals, or old-school goals that are limited to focusing on numbers devoid of meaningful strategy is the best way to ensure D&I stalls, fizzles or disappears. You can’t produce meaningful, measurable business-critical results without meaningful goals, and if you’re not producing meaningful, measurable results, you’re wasting time and money. Meaningful D&I goals address a current, pressing problem or take your organization from good to great. Tackling D&I without them adds tasks and stress to leaders’ and employees’ already-overflowing plates (thus reducing buy-in), and damages the credibility of D&I efforts.

Approaching your D&I initiative like a checklist of best practices from elsewhere without a solid business imperative that’s relevant and urgent to your organization’s success is just as ineffective as approaching any other strategic priority that way. Your goals, challenges and needs may not be the same as your competitors’, or the rest of your industry. You must do adequate assessment and gap analysis before taking action to get better-than-OK results. Start by asking: (1) How will a successful D&I initiative alleviate our existing pain points? (2) How will a successful D&I initiative move us from good to great in critical areas we already care about? (3) How will a successful D&I initiative help us avoid potential future pain points?

Strategy #2: Address Your Culture’s Toxicity to Excellence, Change and Inclusiveness. If you have meaningful, business-critical D&I goals, but you’re seeing low to no desired change or experiencing poor employee engagement, your organization may be too toxic for D&I to take healthy root. Also, if you don’t assess employee engagement in any formal, consistent way, haven’t reviewed your data for over three years or don’t cut your (engagement, turnover, promotion, hiring) data by strategic demographic groups, you’re flying blind. Your training program will fall flat and your investment is wasted if your culture doesn’t support healthy change, equity, inclusion or general excellence. Your core issue might not be about diversity and inclusiveness at all, but rather lack of accountability or effective leadership, which are creating or exacerbating diversity issues

Strategy #1: “Do Diversity” for the Results (Not Just Because It’s the Right Thing to Do). “Rightness and “goodness” are beliefs based on certain values. One’s beliefs and values may be precious but they aren’t facts or universal truth. They may not provide value, results or profit, which are important to organizations. Also, not everyone shares the same values. Expecting that everyone does is naïve, and believing everyone should actually reduces diversity and silences those who challenge or raise questions. Doing diversity based on notions of rightness is also unsustainable, because initiatives based only on beliefs and values are often viewed as nice-to-haves that get cut when leadership priorities shift, or resources become scarce. Believing that doing diversity is right or good isn’t required for it to work. Just as one doesn’t need to believe in internal combustion or the laws of physics to drive a car, the principles of diversity and inclusiveness work regardless of the belief systems of those involved.

Diversity plus inclusiveness gets superior results, as shown by multiple studies including from hard sciences like mathematics and economics. Doing diversity right isn’t about helping “them” (women, people of color, LGBT, people with disabilities, etc.). It’s not about doing the right thing, making others think you’re good people or keeping up with your competitors. Doing diversity right is about getting superior results in whatever critical, strategic priorities you already have. It’s about solving an urgent problem or going from good to great. That’s it. Diversity plus inclusiveness is an excellence multiplier. Don’t treat it as anything less by not implementing these five proven strategies to produce results that matter!

Susana Rinderle is president of Susana Rinderle Consulting and a trainer, coach, speaker, author and diversity & inclusion expert. Comment below or email editors@workforce.com.

Posted on December 6, 2017June 29, 2023

New Year’s Resolutions, NLRB-Style

Jon Hyman The Practical Employer

Have you started thinking about your New Year’s resolutions for 2018?

The NLRB’s newly minted general counsel Peter Robb  has, and employers will be very happy.

According to NLRB General Counsel Memo 18-02 [pdf], issued Dec. 1, Robb will be examining all NLRB precedents changed during President Barack Obama’s administration. The memo specifically directs regional board officials to consult Robb’s office on all cases involving precedent established on workers’ rights in “the last eight years,” and any others involving “significant legal issues.”

He also rescinded seven agency guidance memos that were issued by his Democratic-appointed predecessors (most significantly including the rescission of the NLRB’s controversial 2015 memo on employee handbook policies).

What other targets are on Robb’s radar?
  • Precedent that exposes businesses to “joint employer” liability for workplaces they do not control and workers they do not employ.
  • Prohibitions on class action waivers in employment arbitration agreements, which are intended to speed the resolution of workplace disputes and discourage costly class action litigation.
  • The erosion of confidential of workplace investigations.
  • The provision of workplace “ambush” elections over whether to form a union in as few as 10 days
  • Expanded picketing rights at the expense of employers’ private property rights
  • The opening of employer-owned email systems to union organizing activities
  • The authorization of small groups of employees—or “micro unions”—to organize
  • The restriction of unions and employers from voluntarily agreeing to resolve unforeseen bargaining issues via “management rights” clauses
Happy New Year, indeed.
Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.
Posted on December 5, 2017July 30, 2018

Is This the Worst Harassment Training Video of All Time or Is It the Best?

Jon Hyman The Practical Employer

Much of the news lately has focused on how we, as employers, can do a better job training and otherwise educating our employees about workplace harassment.

So, I ask — is this parody the worst harassment training video of all time, or, is it so bad, that it’s actually the best training video?


I think I’m leaning toward the latter — that this video is so brilliant in its awfulness that it might just make a really good training tool, or least part of great compliance and education program.

What do you think?

Share your thoughts in the comments below.

Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.

Posted on December 4, 2017June 29, 2023

Our Harassment Laws Are Not the Reason for Our Sex Harassment Problem

Jon Hyman The Practical Employer

Last week, the New York Times ran an Op-Ed titled, Boss Grab Your Breasts? That’s Not (Legally) Harassment.

It argues that our lax sexual harassment laws, and the courts that apply them, are responsible for our current workplace harassment problems.

In a case that went to federal court in the early 1990s, a woman presented evidence that her supervisor tried to kiss her on multiple occasions, placed “I love you” signs on her desk, called her a dumb blonde, put his hands on her shoulders and asked her out on dates. The trial court judge dismissed her suit, declaring that this conduct did not meet the threshold for sexual harassment, and the appeals court affirmed the dismissal.

Since then, courts have cited this case and others like it hundreds of times in rejecting sexual harassment claims. Such conduct, these courts have declared, is not serious enough to be harassment.

In fact, courts routinely dismiss cases brought by workers who claim their supervisors propositioned them, kissed them or grabbed their breasts. The judges declare that the conduct does not constitute harassment in a legal sense, and refuse to let the cases go to trial. How did we get here?

Courts are not the reason why we have a harassment problem permeating our workplaces; the reason is employers who have, for far too long, tuned a blind eye to these issues.

Our harassment laws are just fine. Are there anomalous results? Sure. A quick search on Lexis for “sexual harassment” reveals nearly 50,000 decisions. It’s impossible to imagine that they all got it right. I’m certain more than few would make you scratch your head.

Nevertheless, the solution is not to rewrite our harassment laws. Title VII is not and never was intended to be a code of workplace civility. It’s prohibitions against sex discrimination, as interpreted, since 1986, to prohibit sexual harassment, prohibit “severe or pervasive” misconduct that is both objectively and subjectively unwelcome.

Severe misconduct exist when one event that is so outside the bounds of decency that it alters one’s terms and conditions of employment. Pervasive misconduct results from the culmination of less egregious repetitive incidents.

These laws work just fine. Most often than not, courts either decide these cases correctly, or they settle.

Moreover, the alternative is to create a standard that is so lax, and so loosey-goosey, that just about any misconduct will rise the level of unlawfulness. This standard, while potentially appealing to some given the the current climate, would gut at-will employment.

So, if amending our workplace harassment laws isn’t the solution, what is? Or, more to the point, what will help create workplaces in which harassment is not only no longer overlooked and condoned, but expressly prohibited with no tolerance?

To this end, I suggest taking at look at the EEOC’s three-point harassment prevention plan:

  • Taking action to prevent harassment starting at the C-suite.
  • Deploying a different type of training.
  • Embracing the idea of “it’s on us”.

This is not a legal issue; it’s a cultural issue. The laws we have are more than sufficient to address this problem, as long as businesses treat it with the seriousness it deserves.

Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.

Posted on November 27, 2017June 29, 2023

Timing is Everything When Defending a Retaliation Claim

Jon Hyman The Practical Employer

Miriam Valle worked as a ticket agent for Frank Martz Coach Company, until it fired her on Jan. 27, 2016.

Two weeks prior, she had advised her immediate supervisor, Edward Steltz, that she needed to apply for FMLA leave for breast cancer surgery. Martz approved the leave to begin on Jan. 19, and was scheduled to return to work on Jan. 25 following her surgery. Complications pushed that return dated back by four days. Before she could return, however, Martz fired her following an investigation into complaints by co-workers that she had made violent threats (allegations which Valle denied).

In Valle v. Frank Martz Coach Company (M.D. Pa. 11/16/17), the court denied the employer’s motion for summary judgment and held Valle’s FMLA retaliation claim for trial.

In ruling, the court relied heavily on the close temporal proximity between Valle’s FMLA leave and her termination.

Plaintiff’s allegations establish a close temporal proximity demonstrating a causal link between the protected activity and the adverse employment action. Plaintiff requested FMLA leave on January 14, 2016. Shortly thereafter, defendants approved plaintiff’s FMLA leave. Plaintiff began her FMLA leave sometime around January 19, 2017, and was scheduled to return on January 29, 2016. Defendants terminated plaintiff’s employment on January 27, 2016, two days before she was scheduled to return. Thus, we find that this adverse employment action, which occurred eight days after plaintiff’s FMLA leave period began, is unusually suggestive of discrimination. …

Plaintiff claims that the “most telling” evidence in this case is that Defendant Steltz testified that the first time the alleged threats came to light was when plaintiff was out on approved FMLA leave.

If you are going to terminate an employee on the heels of any protected activity, you best have all of your ducks in a row. Employees who engage in protected activity aren’t bulletproof from termination.

But you better be sure you’re using the right ammo. If there can be any doubt about your motivation, you take a huge risk in firing an employee on a timeline such as that in Valle.

Posted on November 20, 2017June 29, 2023

Employees Who Allegedly Take an Employer’s Stuff Without Authorization Don’t Win Discrimination Cases but Might Win Defamation Cases

Jon Hyman The Practical Employer

Jason Shann worked as the Enterprise Desktop Management Team Leader in the IT department of Atlantic Health System.

He also suffered from tinnitus, a crackling and buzzing noises in his left ear caused by an Eustachian tube dysfunction. His tinnitus would flare up unpredictably, and, as it worsened, it caused him to suffer anxiety and depression.

As a result, he applied for, and was granted, a 21-day FMLA leave, and intermittent leave thereafter upon his return to work. Despite the intermittent FMLA leave, his tinnitus continued to worsen. Ultimately, he decided to take short-term disability leave, which he intended to roll into long-term disability and retirement.

Before leaving Atlantic Health, the company discovered that he had “removed” a plethora of computer assets from his workplace. According to the police report, he took four laptops, one iPad, three hard drives, one portable DVD-R/RW and RAM drive, one mouse and an AC adapter for one of the laptops. The company also discovered that he had used unauthorized third-party software to overwrite more than 27,000 files on the one hard drive he left at his desk.

Needless to say, Atlantic Health cut short Shann’s retirement plans and terminated his employment. It also emailed one of its computer vendors to advise that it had “launched an internal investigation to determine if Atlantic Health employee Jason Shann has been operating a side business performing computer support while on Atlantic Health time clock.”

The court had little difficulty concluding that Shann’s disability played no role in the termination decision:

It should be no surprise that “the removal of [Atlantic Health] equipment and software from the facility without authorization” could precipitate Shann’s termination. Atlantic Health’s employment policies unequivocally state that behavior that warranting immediate termination is “theft, misappropriation, or unauthorized possession of property belonging to Atlantic Health System.” Here, Atlantic Health’s corporate investigator reviewed security video tapes from August 16, 2011. In these videos, Shann is seen “carrying what looked to [be] computer hardware on both occasions.” …

Additionally, Atlantic Health terminated Shann for “the removal of proprietary hard drives from his workstation’s computer without authorization.” At his workstation, Shann had a desktop computer containing three hard drives. On August 16, 2011, Shann removed two hard drives from the desktop computer by “pop[ping] the case off, unplug[ing] it, and tak[ing] [them] out.” Shann did not ask for authorization before removing the hard drives and taking them home. …

Lastly, Atlantic Health also terminated Shann for using an “unauthorized … third-party program” to “overwrit[e] … over 27,000 files from his workstation’s computer.” Notably, the record indicates that the third-party program was run on August 16, 2011.

As a result, Shann lost his disability discrimination, and FMLA interference and retaliation claim.

The employer, however, was not able to convince the court to dismiss Shann’s defamation claim resulting from the post-termination comments made to its computer vendor.

What lessons can we learn from this case?
Employers must tread very carefully when communicating personnel decisions, or the facts underlying them, to third parties. The employer really did not have a compelling need to disclose its beliefs about Shann’s wrongdoing. And I’m not sure it disclosed anything untruthful (at least as the facts are presented in the case). But the court was not necessarily convinced and held that issue over for trial.
In other words, be careful what you communicate about employees and their terminations. Sometimes (most times), less is very much more.
Come back tomorrow for a discussion of the other issue in this case — whether the employer failed to accommodate Shann’s tinnitus.
Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.

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