Ohio Employer's Law Blog | Daily Updates | 01CWIRTW #400 (the “400th” edition)>01D plus more

WIRTW #400 (the “400th” edition)

Here’s the rest of what I read this week:


Social Media & Workplace Technology

HR & Employee Relations

Wage & Hour

Labor Relations

OSHA & Workplace Safety


You cannot afford to sleep on harassment complaints

Yesterday, I suggested that harassment prevention is a 365-days-a-year job for employers. Apparently, some employers still need to learn this lesson.

Case in point? Smith v. Rock-Tenn Services, decided yesterday by the 6th Circuit.

The case involved allegations that a male employee sexually harassed a male co-worker. The incidents of harassment included pinching and slapping the plaintiff’s buttocks, and grinding his pelvis into the plaintiff. Based on these facts, and the employer’s inaction following the plaintiff’s complaint, the appellate court had little difficulty concluding that the trial court correctly entered a $300,000 judgment following a jury verdict in the plaintiff’s favor.

What did the court specifically conclude?

The harassment was based on sex
Defendant argues that no reasonable jury could find discrimination based on sex because Leonard’s behavior was mere “horseplay” beyond the reach of Title VII.…  [W]e cannot accept this self-serving characterization of Leonard’s behavior. “Horseplay” was much discussed at trial, and the jury apparently found that pinching and slapping someone on the buttocks or grinding one’s pelvis into another’s behind goes far beyond horseplay. 
The harassment created a hostile work environment
We have long held that “harassment involving an element of physical invasion is more severe than harassing comments alone.”… According to Plaintiff, the three incidents between him and Leonard took place over the course of a few months: about a week separated the first and second incidents, and the third incident occurred a month or more after that. Plaintiff described these incidents as escalating from a slap on the rear, to a painful grab on the rear, to grab by the hips and “hunching,” i.e., briefly simulating sex. 
The inadequacy of the employer’s response
Defendant argues that the steps it took were so clearly prompt and appropriate as to entitle it to judgment as a matter of law. Yet Defendant fails to grasp that what it failed to do is just as important.… Defendant did not separate the two men, suspend Leonard pending an investigation, or initiate its investigation in a timely manner; a reasonable jury could find that the failure to take any of these steps or others rendered its response neither prompt nor appropriate in light of what it knew or should have known regarding Leonard’s prior misconduct.
What should you do when an employee complains of harassment. I’ve shared these five steps before, but they are worth repeating.
  1. Be prompt. Upon receipt of a complaint of harassment, a business must act as quickly as reasonably possible under the circumstances to investigate, and if necessary, correct the conduct and stop from happening again.
  2. Be thorough. Investigations must be as comprehensive as possible given the severity of the allegations. Not every complaint of offensive workplace conduct will require a grand inquisition. The more egregious allegations, however, the more comprehensive of an investigation is called for.
  3. Consider preliminary remedial steps. While an investigation is pending, it is best to segregate the accused(s) and the complainant(s) to guard against further harassment or worse, retaliation. Unpaid suspensions can always retroactively be paid, for example, and companies are in much worse positions if they are too lax instead of too cautious.
  4. Communicate. The complaining employee(s) and the accused employee(s) should be made aware of the investigation process—who will be interviewed, what documents will be reviewed, how long it will take, the importance of confidentiality and discretion, and how the results will be communicated.
  5. Follow through. There is nothing illegal about trying remedial measures less severe than termination in all but the most egregious cases. A valued employee may be no less valued after asking a co-worker about her underwear, for example. If the conduct continues, however, the discipline must get progressively more harsh. If you tell an employee that termination is the next step, you must be prepared to follow-through.
The employer in Smith v. Rock-Tenn appears to have missed on each of these steps when faced with allegations of clear harassment, and it paid the price. Don’t make the same mistake.


I hate Valentine’s Day, and employers should too

I hate Valentine’s Day. It’s not a visceral hate; it’s more of a disgustful annoyance. And, no, it’s not because I’m not romantic. Quite the opposite. I believe that we don’t need a special day to celebrate love, but that you do so by how you treat your other half all 365 days of the year. (I love you Colleen). Thankfully my wife’s not a fan of the Day either, so I lose no points for omitting the clichéd dozen roses or candle-lit dinner.

Do you know who else should not be a fan of Valentine’s Day? Employers. Here are three reasons why.

Russo v. APL Marine Services: This case arose out of a failed romantic relationship between the plaintiff-employee and the captain of the boat on which she worked. Their relationship included a Valentine’s Day tryst, and after it ended, she alleged of harassing behavior such as butt slaps and requests for “make-up sex.”

Mitchell v. City of Pittsburgh: This case involved a male supervisor grabbing the buttocks of a female subordinate and placing his fingers “very close to [her] private area.” When she immediately and vocally objected, he responded: “That was for Valentine’s Day, they call me walking chocolate.”

Hilton v. Shin: This case involved the alleged shunning of an employee (which included a negative performance review) by the president of her employer after she declined his repeated requests for sex, which included a request to meet with him in alleged attempt to “draw her into the office alone on Valentine’s Day.”

What’s are the lesson to take away from these tales of broken hearts, improper gropes, and untoward passes? 
  1. Nothing good can come from a manager or supervisor pursuing a romantic or sexual relationship with a subordinate. 
  2. Harassment prevention should be a 365-days-a-year mission. If you ignore your obligation to educate your employees about the dangers of harassment, Cupid’s arrow will carry the barb of a sex-harassment lawsuit.


Lying about medical leave fatal to disability claim

On Saturday my 7-year-old made his first reconciliation. To what could a 7-year-old possibly have to confess? If you list the 10 big ones, lying would probably take the top spot for the 7-year-old set. It’s a life lesson, however, that some never seem to learn.

Case in point? Mattessich v. Weatherfield Township (Ohio Ct. App. 2/8/16) [pdf], in which a depression-suffering police officer was terminated for lying about his medical leave.

As part of his medical leave for depression, Officer Mattessich’s physician recommended that he undergo counseling. Upon his return to work, Mattessich’s supervior asked him if he went to the recommended counseling, to which Mattessich responded that he had. When his old symptoms returned, however, which impacted his job performance, he admitted to lying about the counseling. Ultimately, the Township terminated his employment because of the lie.

In the subsequent disability-discrimination lawsuit, the appellate court concluded that Mattessich’s lie was fatal to his discrimination claim.
Mattessich himself admitted in his own testimony before the Board of Trustees that he had lied, and other witnesses testified that they had heard him admitting to lying during a past meeting. While he now argues that he had disclosed counseling from his primary care physician when he was questioned about counseling, there is repeated testimony from other individuals and Mattessich himself that he did lie. Mattessich essentially asks us to find an issue of material fact exists when he has already admitted, under oath, that he lied. 
The employment relationship is one of trust. When that trust breaks down, the relationship is irreparably damaged. The surest way to break that trust is with a lie. If an employee lies to you, provided that you treat all similarly situated employees the same, you should be on safe ground in terminating, regardless of his or her protected class.


A labor union filed an Uber-huge representation petition with the NLRB

Politico New York reported last week that International Brotherhood of Electrical Workers, Local 1430, petitioned the NLRB to represent 600 New York area Uber drivers. You can read the representation petition here.

Uber is locked in a battles all over the county with its drivers, defending lawsuits claiming that its drivers are employees for wage-and-hour purposes. This case, however, brought in the most employee friendly forum Uber drivers could possibly find, is the first attempt by drivers to organize. And because of the employee-friendliness of the NLRB, this story has the potential to be absolutely huge.

Of all of the issues facing employers in 2016, the most significant is the definition of who qualifies as an employee. The Department of Labor is examining the differences between employees and independent contractors, and employees and interns, the DOL (both its Wage and Hour Division and OSHA) and the NLRB are examining joint employers, and the EEOC is examining LGBT rights

We are a crossroads in the very definition of the employment relationship, and Obama’s federal agencies are leading the charge.

Mark my words, the NLRB will conclude that Uber drivers have the right to organize as employees. The question, however, is whether that conclusion will hold up in court. 

The day after the IBEW filed its Uber petition, the 11th Circuit Court of Appeals, in Crew One Productions, Inc. v. NLRB [pdf], vacated an NLRB decision which had concluded that Atlanta-area stagehands were employees of the company that refers them to live-event promoters.

According to the 11th Circuit, the NLRB erred because:
  1. Crew One does not have the right to exercise control over the stagehands.
  2. The failure to withhold taxes weighs strongly in favor of a determination that the stagehands are independent contractors.
  3. The independent contractor agreements are evidence of the parties’ intent.
  4. Negotiations over pay are irrelevant.
  5. The stagehands do not perform work that is part of the business of Crew One. 
Critical to the 11th Circuit’s decision, and similar to Uber’s business model:
The stagehands also have entrepreneurial interests. The regional director found that the stagehands “are free to accept or reject offered work without retaliation and are free to accept work from other labor providers.” 
Under the Crew One analysis, Uber drivers should qualify as non-unionized independent contactors. Because, however, the NLRB will conclude that they are employees, this story is one of the stories to watch in 2016.


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