Category: Legal

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What Is Your Profession Doing to Combat Harassment? Mine Appears to be Doing a Lot

Jon Hyman The Practical Employer

The policy-making body of the American Bar Association has adopted a formal resolution that urges legal employers to prohibit, prevent, and promptly redress sexual harassment and retaliation claims.

Moreover, to make sure that law-firm leaders are paying close enough attention, Resolution 302 [pdf] also urges that firms adopt measures to ensure that the heads of law firms are informed of the financial settlements of such claims.

The resolution contains the following key measures:

    • Inclusion of “gender,” “gender identity,” and “sexual orientation” in the definition of “sex.”
    • Encouragement all employers to disseminate a clear statement that all harassment, including harassment based on sex, will not be tolerated.
    • Confirmation that the harassment policy applies to conduct by anyone at work, or at or in connection with any work related function.
    • Creation of regular and effective training programs.
    • Provision of alternative methods for reporting violations of the policy, including at least one anonymous method.
    • Communication, at the start of employment, of the process to report harassment to a government agency.
    • Investigation of all complaints in a prompt, competent, fair, thorough, and objective manner, to include a report to the complainant at the end of the investigation.
    • Implementation of corrective actions to prevent and correct unlawful harassment or retaliation in the workplace, to include the restoration of lost wages or bonuses to the complainant, and disciplinary action up to and including termination of the accused.
  • Prohibition of retaliation against complainants and witnesses.
I quibble with some of these. For example, I typically do not think it’s a good idea to provide the investigatory report as part of the closure of the investigation. I also do not include the EEOC’s phone number and URL in harassment policies I draft.
Broadly speaking, however, I’m proud that my profession is doing something positive to shift the narrative from, “#MeToo I’ve been harassed,” to “#MeToo I’m doing something about it.”
So ask yourself, what are you doing? Are you part of the harassment solution or part of the harassment problem?
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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Happy 25th FMLA … and Happy #SuperSickMonday

Jon Hyman The Practical Employer

Last night, my Philadelphia Eagles won the Super Bowl.

Today, the FMLA turns 25.

Over the past 25 years, it is estimated that employees have used the Family Medical and Leave Act over 200 million times to take job-protected, unpaid time off work to address their own serious medical condition or care for a family member.

And yet, in those 25 years, Congress has only amended the law once, to provide for military family leave.

There is still so much more to accomplish in regards to time off for the American worker, by expanding the FMLA to cover:
  • Workers in businesses with fewer than 50 employees
  • Paid leave
  • Workers who need time to care for adult children, domestic partners, siblings, grandparents, grandchildren and other close family members
  • Workers who need time to attend a child’s school meetings or other important activities for their children
  • Workers who need time to address the effects of domestic violence, stalking, or sexual assault
I can hear the employer complaints now.
“The FMLA is already hard enough to manage.”
All I’m suggesting is adding categories of leave, which should not greatly add to your administrative burden.
“Employees will abuse the system and take advantage.”
That’s not an FMLA issue. That’s an employee management issue. Yes, some employees will abuse, and they should be fired. But, the risk of abuse is not a reason to offer protections to employees.
So today, I call on Congress and the White House to do more to protect the sanctity of the family by looking at reasonable expansions to the FMLA to offer greater protections to workers who need time off from work, and job protections, for things like family care, domestic violence and sexual assault, and children’s activities.
No employee should be forced to choose between their own health and their job, or the health of a loved one and their job, or going to see their child perform in a school play and their job.
Employees are entitled to have personal lives and jobs. It never should be an either/or proposition.
Oh, and back to the Super Bowl. Don’t fret employers. I’m not proposing that the FMLA protects Super Bowl Monday. Well, at least not in cities other than Philly today.
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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ADA Doesn’t Guarantee More Leave Beyond FMLA

employee compensation

For seven years, Raymond Severson worked as a fabricator of retail display fixtures, a physically demanding job, for Heartland Woodcraft Inc.

At the end of a 12-week leave under the FMLA to deal with back pain Severson underwent surgery, which required that he take an additional two to three months off from his job to recover. Heartland denied Severson’s request for additional leave and terminated his employment but invited him to reapply once cleared for work.

Instead of reapplying, Severson sued Heartland under the ADA for denying him the accommodation of three-months leave — beyond the 12 weeks of FMLA required leave — and terminating his employment. While it is the EEOC’s position “that compliance with the FMLA does not necessarily meet an employer’s obligation under the ADA,” the 7th Circuit Court held in Severson v. Heartland Woodcraft Inc. that Heartland did not violate the ADA by denying Severson additional time off after he exhausted his FMLA leave. Severson v. Heartland Woodcraft, Inc., 872 F.3d 476 (7th Cir. 2017)

Impact: An employer in Illinois, Wisconsin or Indiana that is subject to the FMLA and has a clear and consistent policy to provide no more than the 12 weeks of FMLA leave may not be required to provide additional long term or indefinite leave as an accommodation under the ADA.

Heather A. Jackson and Rachel L. Schaller are attorneys in the Employment Law Practice Group at Taft Stettinius & Hollister LLP, which has offices throughout the Midwest. Comment below or email editors@workforce.com.

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Is Employee Copying of Documents Protected Activity or Unlawful Stealing?

Jon Hyman The Practical Employer

It’s a situation that plays out all too often. An employee emails a slew of documents to a personal email address, or drags them into a personal Dropbox, or copies them to a stick drive.

Your first instinct is to assume that the employee is engaged in something nefarious, fire the employee, and even sue for misappropriation of trade secrets/confidential information.

But might there be something else going on? What if, instead of competing against you, the employee is preparing to go to battle against you in a discrimination lawsuit?

Does an employee have a right to copy your documents to prepare a discrimination lawsuit?

Not surprisingly, the answer depends.

In examining the issue, courts balance an employer’s legitimate and substantial interest in keeping its personnel records and agency documents confidential against the employee’s alleged need for surreptitious copying and dissemination of the documents.

In balancing these two competing interests, courts generally apply the following six factors to determine whether the surreptitious copying qualifies as legitimate protected activity or illegal misappropriation.

    1. How did the employee obtain the documents?
      • Was it accidental or in the course of their job duties?
      • Or did they rummage through files or snoop around offices for documents?
    1. To whom did the employee produce the documents?
      • To their attorney?
      • Or to coworkers?
    1. How strong is the employer’s interest in keeping the documents confidential?
      • Do they contain trade secrets, or other confidential information, or PII such as social security numbers or medical information?
      • Or do they contain non-confidential information?
    1. How did the employer discover the misappropriation?
      • Did the employee volunteer the information as part of the lawsuit?
      • Or did the employer discover it on its own?
    1. Did the employee violate a company policy by taking the documents?
      • What do the employer’s privacy and confidentiality policies say?
  1. Does the employee have an ability to preserve the evidence in a manner other than copying hte documents?
    • Can the employee merely describe the content of the documents to his or her attorney?
So, the question then becomes, if you catch the employee red-handed with purloined documents, what should you do? Often, it’s fire now/ask question later. And court generally support this plan of attack.

For example, in O’Day v. McDonnell Douglas Helicopter Co., the 9th Circuit held that an employee actions in rifling through his boss’s desk the evening after being denied a promotion was not protected, even though he claims to have been looking for evidence of age discrimination.

In balancing an employer’s interest in maintaining a “harmonious and efficient” workplace with the protections of the anti-discrimination laws, we are loathe to provide employees an incentive to rifle through confidential files looking for evidence that might come in handy in later litigation. The opposition clause protects reasonable attempts to contest an employer’s discriminatory practices; it is not an insurance policy, a license to flaunt company rules or an invitation to dishonest behavior.

The 6th Circuit reached a similar conclusion in Niswander v. Cincinnati Ins. Co

This is not to say that every instance of an employee copying confidential or other company documents to preserve potential evidence of discrimination is not protected. But it does mean that employees climb a steep hill in making this claim, especially when there are less self-help-y avenues to achieve the same goals (retaining counsel, who send a preservation letter to the employer).
So what should you do if you catch an employee copying documents? First, call your employment lawyer. Then, based on O’Day, Niswander, and other cases, rest comfortably that courts generally disfavor self-help, and unless there is something inherently protected in the act of copying itself (only documents relating to alleged discrimination are copied, documents are emailed by the employee directly to counsel, are they snooping or sending documents they already have), then you are probably (but not certainly) protected in terminating the thieving employee.
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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The Wile E. Coyote Method of Noncompete Litigation

Jon Hyman The Practical Employer

Wile E. Coyote. Forever chasing the Roadrunner. Always ending up falling off a cliff or crushed under a giant boulder.

Noncompete litigation. Sometimes you win an injunction. Sometimes the court drops a big boulder on your head.

Suppose after leaving your company, an ex-employee begins soliciting his former co-workers to join him at his new venture. That employee had signed the same non-competition agreement as each of your other 13,000 employees, which, among other things, prohibits him from directly or indirectly soliciting, inducing, or encouraging any employee of Manitowoc Company to terminate their employment or to accept employment with a competitor, supplier, or customer.

So, you do what many employers do in this situation. You sue the ex-employee to enforce the agreement.

In The Manitowoc Company v. Lanning [pdf], the Wisconsin Supreme Court dropped the biggest boulder possible. It not only ruled in the employee’s favor, but it found the agreement to be unreasonably over broad as drafted, and invalidated it as to all of Manitowoc’s 13,000 employees.

The plain language of Lanning’s non-solicitation of  employees provision creates a sweeping prohibition that prevents Lanning from encouraging anyManitowoc Company employee, no matter the employee’s job or location, to terminate his or her employment with Manitowoc Company for any reason, or soliciting any Manitowoc Company employee to take any position with anycompetitor, supplier, or customer of Manitowoc Company.

Lanning does not have specialized knowledge about all of Manitowoc Company’s 13,000 world-wide employees across both its construction crane and food service equipment divisions. Lanning does not have a relationship with every Manitowoc Company employee. Yet Lanning’s non-solicitation of employees provision prevents him from encouraging any Manitowoc Company employee to terminate his or her employment.

A national company with more than 13,000 employees now has an agreement that it can never enforce against anyone.

What lessons can employers learn from this case? Post-employment covenants are necessary tools that all employers should have in their shed. Employers, however, must use narrowly drafted agreements that only reach those legitimate interests worthy of protection. And, if there is no such interest, consider foregoing an agreement at all. Otherwise, you might end up spending lots of money in court in a vain attempt to enforce an unenforceable contract.
Or, worse yet, a court might just drop that boulder and invalidate that agreement for all of your employees.
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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Walmart (Yes, Walmart) Has Now Done More for Worker Rights Than the U.S. Government

Jon Hyman The Practical Employer

Earlier this month, Walmart announced sweeping additions to how it compensates its employees.

  • Effective 2/17/18, it will raise the minimum starting wage for all hourly U.S. employees to $11.
  • It is offering a one-time, $1,000 bonus to all full- and part-time U.S. employees.
  • It is expanding paid maternity leave for all full-time employees to 10 weeks, and paid parental leave to six weeks.
  • It is providing $5,000 (per child) in adoption assistance for all full-time employees.
These benefits, however, are not free. On the same day, Walmart also announced the closure of 63 Sam’s Club stores (you gotta pay for these somehow, right?).
Harsh dose of reality aside, Walmart has officially moved the needle on both minimum wage and paid family leave. And other employers are going to have to react.
To compete in the job market against Walmart, other companies will have to begin voluntarily offering a higher minimum wage and paid family leave. Thus, over time, they will spread to most employers nationwide.
Bravo, Walmart. You have now done more for worker rights than our federal government.
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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The 3rd Nominee for the Worst Employer of 2018 Is … the Camera Creep

Jon Hyman The Practical Employer

The third nominee for the Worst Employer of 2018 might be the creepiest I’ve shared yet.

From the Tampa Bay Times (c/o the ABA Journal):

Attorney James Patrick Stanton, accused of secretly videotaping nude and partially clothed female employees of a Tampa company, has agreed to never practice law again in Florida.

Before a brief hearing today, Stanton signed a consent to disbarment. …

Among those expected to testify at the hearing was former MaintenX employee Jeremy Lenkowski, who was repairing Stanton’s laptop in 2010 when found the videos. …

After leaving the company in 2014, Lenkowski turned the videos over to Tampa police, who arrested Stanton on 123 felony counts of video voyeurism. Prosecutors reduced the charges to misdemeanors, and a judge dismissed them altogether after Stanton’s lawyers argued that the statute of limitations had expired. …

In 2014, five “Janes Does” sued Stanton, MaintenX and other defendants in Hillsborough County Circuit Court. A Tampa attorney representing the women, Steven Parker, said today that the claims against Stanton had been settled confidentially but that neither he nor the women could comment.

And while this is all very disturbing, it’s what I omitted that earns Stanton’s employer, MaintenX, its nomination:

In a lawsuit he later filed, Lenkowski said he told top MaintenX executives about the videotapes but said nothing was done by the company except to remove the cameras and instruct Stanton to get counseling.

If your learn an employee has secretly videotaped women showering, going to the bathroom, and changing clothes at work, and your only reaction is to remove the cameras and send the employee to counseling, you might be the worst employer of 2018.

Previous nominees:

The 1st Nominee for the Worst Employer of 2018 Is … the Holy Harasser

The 2nd Nominee for the Worst Employer of 2018 Is … the Arresting School Board

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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Employee’s Refusal to Take Drug Test Dooms Discrimination Claim

Jon Hyman The Practical Employer

Can an employee, terminated for refusing to submit to a “reasonable suspicion” drug test, sue the employer for discrimination?

According to one recent federal district court opinion (and good ol’ common sense), the answer is no.

James Tombeno worked for FedEx for 22 years as a sales executive. At the time of his hire, Tombeno signed an agreement that required him to submit to drug and alcohol testing upon FedEx’s request.

FedEx required Tombeno to submit to a drug screen after his supervisor smelled marijuana in Tombeno’s work vehicle. When Tombeno refused, FedEx fired him.

The court had little difficulty dismissing Tombeno’s claims of discrimination (age and sex), as well as his claims for hostile work environment harassment, retaliation and breach of contract.
Why did this employer win? Beside the fact the employee refused to take a required drug test, the employer had a policy, to which the employee agreed, that defined when a drug test could be required and the consequences an employee would suffer upon a failed or refused test.

What are some considerations for your workplace drug testing policy? Here are five thoughts:

    1. What is the scope of your policy? When are employees expected to be drug-free? At work? Away from work? How many strikes are employees allowed (i.e., is your policy zero tolerance)?
    2. Under what circumstances can you test employees? Pre-employment (allowed by the ADA for illegal drugs)? Reasonable suspicion (if you reasonably believe, based on objective factors, that an employee might be under the influence)? Periodic or random (but, note that random does not mean at your whim; you need a process to ensure bona fide randomness)? Post-accident (provided there is a reasonable nexus between the accident and potential impairment)?
    3. What are the consequences for failure? Your policy should expressly state the consequences of a positive drug test, or a refusal to submit to, or complete, a test (i.e., termination of employment).
    4. Do you offer resources for employees upon a failed test? The ADA does not protect employees who are under the influence of an illegal substance while at work. Nevertheless, addiction is an ADA-protected disability. Offering assistance to an addicted employee (EAP services, unpaid time off for rehabilitation) will satisfy an employer’s reasonable accommodation requirements for employee-addicts who are not impaired at work.
    5. Do you ensure confidentiality? Drug-test results are medical records protected under the ADA’s confidentiality requirements, and should be treated as such.
The one thing you should not do is drug-test employees without a policy protecting both the act of the drug test itself and any employment actions you take against employees as a result.
If you don’t have a workplace drug testing policy, or aren’t sure that yours is up to snuff, I may know an employment lawyer who’d be happy to draft or review for you.
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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Legal Lessons Courtesy of a Year’s Worth of Bad Bosses

Jon Hyman The Practical Employer

Who was the “worst” employer of 2017? 

I ask this question tongue-in-cheek (sort of).

Last year, I tracked the stories of 23 employers, the behavior of which was less than exemplary.

From the list of 23 potential nominees, I was able to whittle it down to these four finalists. As much as I would like to say that these stories are fiction, or that I exaggerated facts for dramatic effect, each is a real news story or real case filed in a U.S. court of law.

The Cancerous Boss: An employee received the unfortunate diagnosis of kidney cancer and required immediate surgery to remove the tumor. As a result, she asked her employer for a 10-day leave of absence. If the employer granted the request, it’s safe the say it wouldn’t have made this list. Not only did the business owner deny the request for time off, she told the employee she doesn’t “need people with cancer working in her office” and further stated, “this is America and in America you have to work even if you’re sick.” She closed the conversation by firing the employee, telling him, “With your illness, people die and I cannot keep you as a worker not knowing what is going to happen to you.”

The Racist Boss: An African-American employee complained to her white boss about his repeated use of racist slurs in the workplace. For example, he would comment about his Latino employees, “We’ll just make the Mexicans do it,” and make fun of Hispanic accents in front of them. He also told the plaintiff, along with another African-American female employee, “Y’all are my b******,” before discussing a task. Following her complaint, her boss gave her a Christmas present — a rhinestone-studded purse of the Confederate flag and several photos of him posing with Confederate symbols. 

The Horny Head of HR: A client-relations manager sued his employer after its head of human resources began sexually harassing him. She bragged how her “husband has a girlfriend” and claimed she lets her teen son watch porn. She pestered him about his sexual orientation and hugged him against his will. She texted him a picture of a man reading a book with the title, “A– Eating Made Simple,” a video of a masturbating monkey and a picture of a man with an erection. It culminated with her nibbling on his ear while whispering, “I hope you’re not going to sue me.” That’s exactly what he did.

The Callous Non-Accommodator: Michael Trimble, originally from Ukraine, was born without arms as a result of birth defects resulting from the Chernobyl nuclear disaster. He rides a modified bike designed specifically for him and his disability. He is extraordinarily inspirational, which did not stop his employer from firing him. A manager complained about Trimble’s habit of bringing his bicycle in through the building’s front door and asked him to carry it up the back stairs. Trimble says he explained the obvious: that he can’t carry his bike up a flight of stairs because he doesn’t have arms, nor, for the same reason, could he walk his bike through an outdoor courtyard. “Can’t you just push your bike?” a supervisor asked him. “How can I push my bike? I don’t have any arms.” His employer ultimately fired him for continuing to bring his bike through the front door.

It’s scary to think that in this day and age employers like this still exist. That bosses don’t know that you can’t fire someone who needs a few days off for cancer surgery, or can’t make repeated race-based comments and slurs, or heads of HR (of all people) who don’t know the first thing about sexual harassment and how to avoid it, or we deny easy-to-make accommodations to our disabled employees.

Throughout 2017, I was asked time and again, “Jon, you’re a management-side attorney. Why are you focusing on bad employers?” Because bad conduct is a wonderful teaching tool: “Don’t do as they do.”

I’ve decided to continue my work calling out the worst of the worst in the hopes that it makes us all better employers and, more importantly, better people.

Here’s your early leader for 2018: According to recently filed lawsuit, a 68-year-old accountant asked his 23-year-old clerk to visit his home office off hours so that he could teach her about tax returns and accounting. She said that when she arrived, he told her that God wanted her to be his sexual plaything, that “she was an angel sent to him for sex and compared himself and her to Adam and Eve.” 

Clearly, my work is not yet done. 

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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The 2nd Nominee for the Worst Employer of 2018 Is … the Arresting School Board

Jon Hyman The Practical Employer
There are lots of correct ways to respond to employee complaints.

Handcuffing and arresting the employee is most definitely NOT one of them.

Yet, this is exactly what the Vermilion, Louisiana, school board did when a teacher, Deyshia Hargrave, tried to raise concerns at a board meeting about a proposed raise for her boss, Superintendent Jerome Puyau.
Thus, I have nominated this employer as the Worst Employer of 2018.

The New York Times has the details:

The ordeal started when the school board met in a special session to vote on the renewal of Puyau’s contract. As Hargrave spoke against the renewal after the vote, a marshal approached her.

“You are going to leave or I am going to remove you,” the marshal told her. “Take your things and go.”

“Excuse me,” she said to him. “Is it against policy to stand?” Ms. Hargrave asked the board, as the marshal tried to grab her arm. “Sir, do not,” she said.

She started to walk sideways through the assembly to leave, as some protested, noting that Mr. Puyau had started to directly address Ms. Hargrave just as the marshal tried to eject her.

When it became apparent that Ms. Hargrave was being handcuffed in the hallway, the audience appeared startled. Several followed her into the hallway, and the video showed her on the floor and then standing, handcuffed, with the marshal behind her. “Stop resisting,” he said as he walked her outside.

“I am not — you just pushed me to the floor. I am way smaller than you,” she said.

Outside, the marshal called for backup. He is heard saying to her that he had given her orders to leave, and Ms. Hargrave, standing in the dark against a car, replied, saying she was “walking and asking you a question.”

She was placed in an Abbeville police patrol car.

After video of the incident went viral, the city attorney decided not to pursue charges against her. Judge for yourself whether this is worthy of consideration at year’s end.

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.