Monthly Archives: March 2012

NOT SO FAST MY FRIEND – OHIO LIMITS EMPLOYEE BREACH OF PUBLIC POLICY CLAIMS IN DOHME V. EURAND AMERICA, INC.

Historically, Ohio courts have recognized breaches of public policy as an exception to the employment-at-will doctrine. To make such a claim, an employee must assert and prove a clear public policy based in state or federal constitutions, a statute or regulations, or common law.  In its recent decision in Dohme v. Eurand Am., Inc., the Ohio Supreme Court restricted the availability of wrongful discharge claims premised on breaches of public policy.  This most recent decision provides employers with another tool in their defense arsenal against such claims.

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MAYBE IT IS OKAY FOR AN EMPLOYER TO BE “BIG BROTHER”

Siblings fight.  They also tend to get over it quickly – after all, they’re stuck with each other.  My boys are no different.  The other day, The Sheriff told his arch-nemesis younger brother not to worry about when he got to middle school.  If anyone picked on him, he’d take care of it.  I thought it was sweet, but it really comes down to a slightly different message: NO ONE can pick on my little brother . . . except me.

Bullying is not just gaining attention on school grounds these days; it’s become somewhat of a workplace issue too.  I’m headed to a seminar later this week that covers this emerging topic and hopefully will be able to share even more useful tips about this subject with you in a later column.  One of the things I’m anxious to hear discussion about is the disconnect between workplace bullying and existing discrimination laws.  Title VII and most state discrimination protections only prohibit conduct based on certain protected characteristics, like race, gender, and national origin.  For his (or her) part, the bully doesn’t necessarily discriminate – the target may be perceived as weaker, “different,” or a threat.  Perhaps the bully has mental, emotional, or other issues that are causing the behavior.

Without guidance from a specific workplace bullying statute, employers are left to deal with the issue within the current framework of the law.  It’s my view that workplace bullying should be prohibited by employers.  Employee morale suffers, and that’s typically tied to productivity.  Plus, an employer that permits “legal” harassment may still very well find itself on the wrong end of a lawsuit.  You may want to consider broader use of your anti-discrimination/harassment policies to discourage bullying behavior from the outset.  Encourage employees to report bullying behavior so that it can be addressed as soon as possible.  Your EAP program may be a useful tool in addressing these problems, as well – both for the employee trying to deal with the stress of being a victim and for the bully to mend his/her ways.

In the absence of potentially newer strategies learned this week on how employers should define and handle “bullying” behavior, I think for now the conscientious employer should just follow The Sheriff’s lead and be a big brother (without the caveat).  If you’ve faced workplace bullying issues, I’d love to hear your views on how you handled them.

 

MINOR V. BOSTWICK LABORATORIES: INTRACOMPANY COMPLAINTS CONSTITUTE PROTECTED ACTIVITY UNDER THE FLSA’S ANTI-RETALIATION PROVISION

In April of 2011, the Supreme Court of the United States issued its opinion in Kasten v. Saint-Gobain Performance Plastics Corp., holding that any employee making an oral complaint which would put an employer on notice of an alleged FLSA violation is enough to trigger the protections provided in the anti-retaliation provision.  Click here for our recap of Kasten.   The Kasten Court did not directly address the issue of whether an oral complaint within a company could trigger protection under the anti-retaliation provision of the FLSA.  This provided some hope for employers, leaving the flexibility to argue that the holding in Kasten still required an external complaint which triggered official proceedings, even if the formality requirements were thrown by the wayside by the Supreme Court’s decision.  Recently, in Minor v. Bostwick Laboratories, the Fourth Circuit (which covers West Virginia) seemingly foreclosed that possible argument for courts within its jurisdiction and created an even more permissive standard for triggering the protections of the anti-retaliation provision of the FLSA. 

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WHOOP-EE-TI-YI-O, GET ALONG LITTLE DOGGIES, IT’S YOUR MISFORTUNE AND NOT OF MY OWN

I remember those words by Woody Guthrie in a little song we learned in grade school.  Have you ever noticed that certain combinations of people just can’t “get along” and create discord while other pairings of people generate harmony?  One of my nicknames for my middle son is “The Sheriff” because he is constantly policing his younger brother.  As a result, when the three boys are together, you can expect noisy arguments and possibly hand-to-hand combat (at least that’s my assumption based upon the hole that mysteriously appeared in their bedroom wall one day – no one is giving up how that happened).  In pairs, however, my house is blissfully peaceful, even between The Sheriff and his brother, which got me to thinking about how employers deal with their own “sheriffs” or other unruly employees.

Personality conflicts are a natural part of life and not all of them are destined to disrupt your business.  The same is true of social or mental disorders that impact an employee’s ability to interact appropriately with others.  But, when you find yourself with an employee or applicant who simply just cannot work well with others, what can you do?

For many jobs, the ability to maintain effective working relationships with co-workers or supervisors and/or interact professionally with clients, customers, or the public is/are necessary job skills.  Where that is the case, good interpersonal skills should be listed as a requirement in the job description.  Courts tend not to impose their own ideas of which skills are necessary for a position; instead, they rely upon employers to make those judgments.  Having these skills in writing so employees and applicants are aware of them – and so courts can rely upon them – will go a long way toward defending employment decisions based upon an employee’s inability to work well with others.

But don’t stop there.  If interpersonal skills are important to a position, the employee’s performance reviews also should include this criterion.  Supervisors completing these reviews should be trained to provide specific examples of an employee’s “inability to work well with others.”  If an employer ends up meting out discipline (or even fails to hire) based upon the lack of this skill, you want to be able to illustrate specific examples to a court or jury to support the decision.

Moreover, if you provide the reason for any adverse employment decision to the employee/applicant, you should be honest.  It’s not easy to tell someone that you don’t think they are a “people person” or are difficult to deal with professionally, but honesty is always the best policy.  Offering up a personality conflict as the basis for a decision during litigation, rather than being (painfully) honest at the time of the decision, may result in a conclusion by the court that the reason is “new” and really just a cover-up for discrimination.

As I’ve experienced with my boys, moving people around so that conflicting personalities are kept away from each other – if done properly – can resolve some interpersonal issues.  Training and counseling may also help.  I’d be interested to hear how you’ve handled these issues in your workplaces.  You can post comments below this article.