Employer Law Report

Archives: Employment Outtakes

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Employer’s DNA test of employees in defecation investigation results in $2 million verdict for violating GINA while real “Poopetrator” remains on the loose

We would like to thank Adam Bennett, one of Porter Wright’s summer law clerks, for his significant contributions to this blog post.

If a recent federal court case is any sign of the times, employers should think twice before engaging in their own forensic crime scene style investigations of employee questionable behavior—even if the employee is suspected of repeatedly defecating in public areas of the workplace. Employers sometimes forget that the Genetic Information Nondiscrimination Act (GINA) prohibits requesting employee genetic information. Any improper request for employee genetic information is likely to lead to legal woes and a lot of dollars … Continue Reading

NLRB: employer unlawfully fired employee for calling supervisor a “NASTY M____ F____ER”

On Tuesday, March 31, 2015, the NLRB issued an order upholding an ALJ decision that Pier Sixty LLC violated Sections 8(a)(1) and 8(a)(3) of the National Labor Relations Act when it terminated an employee who wrote on his Facebook page that his supervisor was a “NASTY M____ F____ER.”

According to the Board’s majority opinion, a number of service employees at Pier Sixty had expressed interest in union representation, in part because of concerns that management repeatedly treated them disrespectfully and in an undignified manner. Two days before the union election, a 13-year employee, who was working as a server at … Continue Reading

Are You Ready, Baby? March Madness = Workplace Madness

The NCAA men’s basketball tournament, a/k/a March Madness, kicks off Sunday, March 15 with Selection Sunday, then rolls on Tuesday, March 18 with a couple of play-in games and then on to the actual tournament, which begins Thursday, March 20. The brackets, the gambling, the office conference rooms dedicated to the games, the continual online streaming of games, the excitement…it’s all here! And with Warren Buffet recently announcing he will give $1 billion to anyone who can pick a perfect bracket, the stakes just got higher! While the Billion-Dollar Bracket may be new this year, March Madness, Super Bowl … Continue Reading

Social Media Firing of the Week. (Final Score: God 10 – Waitress 0)

The Internet is burning up this morning with the story of an Applebee’s waitress who was fired for posting on Reddit, a social news and entertainment site, the receipt from a customer who gave her no tip on a $35.00 check, writing "I give God 10% why do you get 18?" Unfortunately, the waitress did not obscure the customer’s signature when she posted a picture of the receipt, which naturally set off a firestorm of Reddit users and others on the Internet attempting to identify the customer. The customer apparently then contacted Applebee’s and demanded the waitress’s termination.

While there … Continue Reading

Sales Managers Gone Wild?

I know we haven’t posted anything in a couple of weeks, so some of you might think that I am reaching when I write about a Utah state court decision overturning a lower court decision that had denied the plaintiff the right to amend his complaint.  Normally, this would generate a big yawn, but it is not every day that I read a case where the plaintiff alleges that his supervisor had him waterboarded as a motivational tool for his workforce.  

According to the court’s decision the following facts were alleged: The plaintiff’s supervisor had asked for volunteers for a new motivational … Continue Reading

Watch What You Say in Your $*@&^#% Emails

It may be that it’s Monday morning as I write this but I have to admit I got a kick out of the news articles circulating late last week that reported that Goldman Sachs has revised its electronic communications policy to prohibit the use of any profanity in emails. The edict apparently results from emails that became public during Senate hearings investigating allegations that Goldman Sachs had misled its clients by selling risky mortgage securities while at the same time betting on a housing market crash. One email apparently referred to a particular investment the company had just sold to a client as … Continue Reading

HIRE Act Provides Tax Exemptions for Employers

President Obama signed the “Jobs Bill” into law on March 18, 2010. Part of the Jobs Bill is the HIRE or “Hiring Incentives to Restore Employment” Act. The HIRE Act grants employers a tax exemption for their 6.2 percent Social Security (or FICA) payroll contribution for every new qualified employee hired between February 3, 2010, and before January 1, 2011, for wages paid beginning March 19, 2010.

A qualified employee is someone who has been unemployed for 60 days prior to accepting employment. Being “unemployed” means having worked less than 40 hours during the preceding 60-day period. To be qualified, … Continue Reading

New York Jets Coach Fined for “Off-Duty” Conduct

While attending a Mixed Martial Arts event in Miami, New York Jets head coach, Rex Ryan, apparently made an obscene gesture at some Miami Dolphin fans who were taunting him. Yesterday, the Jets fined Ryan $50,000. Ryan was attending the event, which was neither team nor NFL-sponsored, on his own time, but the team obviously felt that as head coach, Ryan is their representative even when he is "off duty" and that he must conduct himself accordingly.

In the real world, most employees are not celebrities that the general public will try to egg on until they do or say … Continue Reading

How Should the Ohio BWC and Industrial Commission Treat Claims for H1N1?

As concerns about the potential scope of the H1N1 flu continue to grow, one question we keep hearing from clients is whether employees who believe they have contracted H1N1 in the workplace may have compensable workers’ compensation claims. In the vast majority of cases, we believe the answer will be a resounding "No."

Ohio defines an occupational disease as:

"a disease contracted in the course of employment, which by its causes and the characteristics of its manifestation or the condition of the employment results in a hazard which distinguishes the employment in character from employment generally, and the employment creates a … Continue Reading

Michael Vick Gets Released From the ERISA Doghouse, But Could You be Next?

Sports fans, you can breath easier about your fantasy football lineups — Michael Vick is out of the doghouse with the U.S. Department of Labor, presuming he complies with a consent judgment. We had cautioned in an earlier post that Vick’s release from prison did not necessarily mark the end of his government obligations, given DOL allegations of ERISA violations. As explained in the DOL’s press release, the DOL’s complaint alleged that Vick and others improperly removed $1.35 million of pension plan assets to help pay the criminal restitution imposed on Vick after his conviction for unlawful dog fighting, and to … Continue Reading

Hockey Firing Raises Age Discrimination Issue

Generally, the firing of a professional sports team’s general manager is not going to raise my interest as an employment lawyer, but the comments made by the owner of the Chicago Blackhawks after Dale Tallon was fired certainly piqued my interest. Those hockey fans in the audience may know that Tallon’s firing came shortly after the NHLPA filed a grievance claiming that he failed to send out timely qualifying offers to players that were restricted free agents. Rather than risking those players becoming unrestricted free agents, Tallon quickly signed them to long term contracts that probably aggravates the team’s salary … Continue Reading

My Summer Camp Adventure

It’s hard to believe that fewer than 10 years ago, there was widespread concern that our computers were all going to blow up and there would be anarchy in the streets. Since the clock struck midnight on January 1, 2000, we have seen an unprecedented technology boom that has had a widespread impact on the workplace. Remember the anxiety caused by cameras on our cell phones due to their impact on protecting trade secrets and our privacy in the locker rooms? Since then, we have grown comfortable with workers using laptops offsite though we still need to concentrate better on … Continue Reading

Jon & Kate Plus 8…..Equals Child Labor Law Violations?

In wage and hour news, the TLC show “Jon & Kate Plus 8” may be in some hot water for violations of state child labor laws. Troy Thompson, Spokesman for the Pennsylvania Department of Labor and Industry, has been widely quoted as confirming that the agency received a complaint and is conducting an investigation.  

Many people don’t realize that the child actors on their favorite television show are protected by state child labor laws. While state requirements vary, many have restrictions on the number of hours a child actor can work in a day or week, require special permits, or even require … Continue Reading

A Double Identity Doesn’t Entitle You To Overtime!

We just ran across a wage and hour case out of Texas with a unique twist on the usual overtime claim. Bustamente, an undocumented immigrant, alleged that the El Palenque Mexican Restaurant and Cantina forced him to work under another identity to avoid overtime.  

According to Bustamente, the kitchen manager realized he lacked the documentation to work legally in the country but told him it wouldn’t be a problem if he had some documents. Bustamente began working under his brother’s identity. (He actually brought the case as Jesus Bustamente, the brother– he only confessed that his real name is Cristoforo one week prior … Continue Reading

Why You Should Do A Reality Check When Reviewing Timesheets

A good illustration of why managers should regularly review their employees’ timesheets comes courtesy of The Day.com.

Lisa Bloomer worked for the Connecticut Department of Developmental Services. A few years ago, Ms. Bloomer’s former boss invited her to a casino. That first trip was all that it took: Ms. Bloomer became addicted to gambling. 

Fortunately for Ms. Bloomer, she made $210,000 over the course of the next three years working for the state – an income that easily fueled her addiction. The only problem was that she reported many working hours that were actually hours spent at the casino, … Continue Reading

What Do Reality Television Shows and Employment Law Have In Common?

Class actions, of course. California courts have preliminarily approved class-action settlements in two wage-and-hour lawsuits against the television networks and production companies responsible for such entertainment gems as “The Bachelor,” “The Bachelorette,” “Trading Spouses,” “Joe Millionaire,” and “My Big Fat Obnoxious Fiancee.” 

The lawsuits accused the companies of failing to pay overtime wages, denying meal and rest periods, falsifying pay stubs, and forcing employees to falsify time records. The companies will pay more than $4 million to settle the claims. A hearing for final approval of both settlements should take place in May 2009. … Continue Reading

Equal Opportunity Spanking Nets New Trial

This case exemplifies our reason for creating the Employment Outtakes category. 

A California (where else?)appellate court (see Orlando v. Alarm Onehas overturned a jury award of $500,000 in compensatory and $1 million in punitive damages to a 52 year old female on sexual battery and sex harassment claims that  arose out of spankings that she received during the course of "motivational meetings" to encourage the sale of security systems. Apparently, the spankings, among other rather unique motivational techniques, were administered to both male and female employees who performed poorly (for instance, by arriving at work late or not selling Continue Reading

Recent Case Could Make Ohio Employers More Vulnerable To Defamation Claims

Employers certainly have the right to comment about alleged employee misconduct in a grievance proceeding, right? Not so fast. A recent Ohio court of appeals decision suggests that Ohio employers may want to be even more careful regarding what they say about alleged employee misconduct. In Gintert v. WCI Steel, Inc., 2007-Ohio-6737 (11th Dist. Trumbull County 2007), a union employee was fired, in part because three fellow employees said they heard him use a racial slur toward another employee. Denying that he used the slur, the terminated employee sued the company, his supervisors, and two employees for defamation.… Continue Reading

Crack-Cocaine Enterprise is Sustained Remunerative Employment

Even in the chaotic world of Ohio workers’ compensation, crime still doesn’t pay – at least not for one enterprising Ohio claimant. Finding that the sale of crack cocaine over a three-year timeframe amounted to an exchange of labor for pay over a sustained period, the Ohio Supreme Court upheld the Industrial Commission’s determination that an injured worker was not entitled to permanent total disability compensation.   In reaching this rather obvious conclusion in State ex rel. Lynch v. Indus. Comm., 2007-Ohio-6668, the Ohio Supreme Court rejected the injured worker’s inspired argument that his activity could not be considered sustained remunerative employment … Continue Reading

Return to Sleep Deprivation?

As the Writers Guild of America’s strike against the Association of Motion Picture and Television Producers moves into its seventh week, cracks are beginning to appear in the union’s armor. Until this week, late night television staples such as Leno, O’Brien, Letterman, Stewart and Colbert were mired in “classic” episodes (read: reruns) without any end in sight. Now, it looks as if all but Letterman will be returning – albeit without writers – beginning in early January.  For its part, Letterman’s production company is seeking a separate, interim deal with the Guild to facilitate the return of new episodes of the Late Show.… Continue Reading

Secretary May Pursue Sexual Harassment Suit for Hostile Work Environment Based on Boss’s Video Habit

The importance of leaving your personal life at home–particularly if it involves a penchant for pornography–is amply highlighted by the Second Circuit’s decision in Patane v. Clark, No. 06-3446 (2nd Cir. Nov. 28, 2007).  In Patane, the court upheld a female college secretary’s right to pursue a hostile work environment claim under Title VII and state discrimination laws based on her male supervisor’s pornographic video and website viewing habits.  Apparently oblivious to the development of sexual harassment law over the last 40 years or so, the supervisor–who happened to be the chair of the college’s Classics Department–allegedly viewed … Continue Reading