Employment Law Update
May 13, 2011
1
Kimberly Vanover Riley, Esq.
Montgomery, Rennie & Jonson Co., L.P.A.
Cleveland
(440)779-7978
kriley@mrjlaw.com
Agenda for Today
2
 Department of Labor Update
 Wage and Hour law
 Military Leave
 Nursing Mothers
 Ethical Role of Court Personnel
 The Myth of At-Will Employment & Updates to
Workplace Discrimination, ADA, Harassment &
Retaliation Law
 Social Media & The Public Sector
The DOL Busy Season
3
Wage and Hour Initiatives
FMLA Changes
Nursing Mother Laws
Wage and Hour Law
Big changes coming
5
 DOL recently hired 350 new investigators—no one knew
why.
 Now we do:



Mandatory employer compliance plans will soon be required.
DOL will require most employers to prepare and adopt compliance
plans aimed at ensuring they do not violate wage, job safety and
other employment laws.
Decisions will need to be documented and shared with their workers
and the government.
 Deputy Labor Secretary Seth Harris said many specifics
of what employers will be required to do “had yet to be
worked out.”


Proposed rules are still being drafted, and businesses will have a
chance to respond before any final rules are issued.
The first wave of these regulations is expected in April 2011.
“Good Jobs for Everyone”
6
 Part of the DOL’s vision statement is “good jobs for
everyone.” It includes its definition of a “good job.”
This includes, among other things:

Jobs that increase workers’ incomes and narrow wage and
income inequality;
Jobs that assure works are paid their wages and overtime;
Jobs that provide workplace flexibility for family and personal
care-giving;
Jobs that assure workers have a voice in the workplace.

http://www.dol.gov/_sec/stratplan/2010/vision-2010.pdf



DOL Regulatory Agenda Narrative
7
 “only limited resources to protect America’s workers”
 “employers do not have a culture of compliance”
 “many will not change their behavior, even if
provided with the best information”
 “some are complacent, depend upon luck to avoid
violations”
 others refuse to comply because they compare the
costs of compliance against the odds of being caught
 The “catch me if you can” model has become a
problem in America’s workplace.
DOL Plan to Address this Problem:
8
 Employers will be forced to “take responsibility to
find and fix problems rather than wait for a Labor
Dept. investigator to inspect, discover the problems,
and enforce the law.” How?
 “Leveraging” their limited resources:
Plan/Prevent/Protect.
 “Compliance will be non-negotiable under the
Plan/Prevent/Protect” system.”
 http://www.dol.gov/regulations/2010RegNarrative.
htm
Plan
9
 Dept. will propose a requirement that employers
create a plan to identify/fix risks of violations.
 Employer will provide employees with opportunities
to participate in the creation of plans.
 Plans will be made available to employees so they
can fully understand and help monitor them.
Prevent
10
 Department will propose a requirement that
employers “thoroughly and completely implement
the plan in a manner that prevents legal violations.”
 It “cannot [be] draft[ed] . . . and then put . . . on a
shelf.”
Protect
11
 Dept. will propose a requirement that the employer
ensures the plan’s objectives are met on a regular
basis.
 Employers who fail to follow these steps will be out
of compliance and subject to remedial action.
What does this mean for W & H specifically?
12
 These initiatives apply to a broad range of
employment laws, including workplace safety
(OSHA, MSHA), but also the Wage & Hour Division.
 The particular P/P/P initiative for the WHD is called
“Right to Know”
Right to Know
13
 The WHD will publish a NPRM to FLSA regs, requiring:

Communication to Employees





How their pay is calculated
Who is exempt / excluded from FLSA entitlements (OT, minimum wage)
Why (e.g., exempt, personal staff, volunteer, independent contractor)
Openness and Transparency

Portions of this communication may need to be provided with each
paycheck. “Wage statements”

Summarizes hours worked/wage computation.
Maintenance


Keep this information on file
Why? So it may be quickly provided to WHD enforcement personnel.
Right to Know
14
 Target Date: April 2011
 See http://www.dol.gov/whd/regs/unifiedagenda/fall2010/1235-
AA04.htm
Bridge to Justice
15
 But how will 350 DOL investigators enforce all these
new initiatives?
 The Bridge to Justice is an “unprecedented
collaboration” between the WHD and ABA
 Workers who cannot get immediate DOL help will be
referred to W & H attorneys through the ABA’s
Lawyer Referral and Information Service.
 http://www.dol.gov/whd/resources/ABAReferralPol
icy.htm
What will the Bridge to Justice Look like?
16
 When e/ees call DOL for help, they will get help from
a DOL employee or referred to a toll-free number.
 The number will provide contact information for W
& H attorneys in their area.
 If WHD investigation finds violations, it can:
 Prosecute; OR
 Supply the employee with:
Its list of violation(s) and back wages calculations
 The phone number for the attorney referral service

We Can Help
17
 2010 Campaign designed to reach “high risk”
industries






Agriculture
Construction
Janitorial
Hotel/Motel
Food Service
Home Health Care
 Includes booklets, posters, and user-friendly website
 Includes spreadsheet for tracking hours worked:
http://www.dol.gov/whd/FLSAEmployeeCard/calen
darR5Web.pdf
18
http://www.dol.gov/whd/FLSAEmployeeCard/calen
darR5Web.pdf
19
http://www.dol.gov/whd/FLSAEmployeeCard/calen
darR5Web.pdf
20
http://www.dol.gov/whd/FLSAEmployeeCard/calen
darR5Web.pdf
21
http://www.dol.gov/whd/FLSAEmployeeCard/calen
darR5Web.pdf
22
Bottom Line
23
 Ignoring wage and hour law will soon no longer be
an option.
 Merely assuming you are in compliance will no
longer be enough.
 You will have an affirmative obligation under the law
to get into compliance, document your analysis, and
share it with your employees.
Is anyone feeling the need for a little review?
24
General Rule
25
 EVERYONE IS PRESUMPTIVELY NON-
EXEMPT


i.e., entitled to minimum wage and
presumptively entitled to 1.5 OT
Unless excepted or exempt
 or Unless proactively changed to comp time or modified
version of OT

Minimum Wage
26
 Federal: $7.25
 Ohio: $7.40
 Every September 30, it is increased as of the first day of the
following January by the rate of inflation for the 12-month
period prior to that September, rounded to the nearest five
cents.
 The annual update to the Ohio minimum wage is available on
the Web site of the Ohio Department of Commerce, Division of
Labor & Worker Safety.
 http://www.com.ohio.gov/laws
Overtime and Compensatory Time
27
 OT and Comp Time (1.5) vs. Flex/Bonus Time (1.0)
 Comp time
 State and local government
 Ratio – 1.5 hours off for every 1 hour of overtime
 Available only when follow prescribed notice / rules
Compensatory Time – Requirements
28
 E/ees notified: comp
 Afforded opportunity
time off in lieu of
overtime
 May not accrue more
than 480 / 240 hours
 If accrue more,
entitled to OT
to use banked comp
time w/in reasonable
period, and when
requested—so long as
notice is reasonable
 Termination – must
be paid for unused but
earned comp time
Excepted vs. Exempt
29
 Excepted: not subject to the coverage of the FLSA
in any respect
 independent
contractors
 elected officials and their personal staff
 policy-making political appointees and legal advisors
 bona fide volunteers
 Exempt: subject to certain aspects of the FLSA,
such as its recordkeeping requirements.
Exceptions
30
 Volunteers—not covered by FLSA
 However, make sure your volunteers truly are volunteers:
No pay (any kind of compensation)
 No promise / (reasonable) expectation of pay

 Independent Contractors—not covered by FLSA
 Again, ensure they truly meet this status (IRS 20 factor test)
Exceptions, cont.
31
 Elected Officials, Personal Staff Members &
Policymakers serving elected officials




Elected officials (e.g., Judge, elected Clerk)
Personal staff of elected officials
Appointees of elected officials to serve on a policymaking level
Immediate advisors to elected official re: constitutional/legal
powers of the office
Excepted employees=No FLSA obligations
32
 Note—Ohio exceptions are narrower.
 May still have obligations to Ohio employees that do
not exist under federal law.
The “White Collar” Exemptions
33
The first of the 13(a) exemptions is, by far, the largest.
Section 13(a)(1) provides the “White Collar”
exemptions.
 Executive
 Administrative
 Professional
The “White Collar” Exemptions
34

2 Requirements

Duties—must entail a certain amount of exempt work.

Salary—must be paid:


In a specified form (salary, or sometimes fee, instead of
hourly)
In a specified minimum amount
Note: Significantly changed in 2004.
Executive
35
 Salary: Minimum $455/week.
 Duties
 Primary duty must be managing the enterprise in which
the employee is employed, or of a customarily recognized
department or subdivision.


Won’t lose exemption of jumping in to help subordinates (e.g., fast
food manager)
Directing 2+ FT employees’ work– Customarily and
regularly directs the work of two or more employees or
full-time equivalents.

Actual authority or particular weight in hiring/firing
Administrative
36
 Salary= $455.00/week
 OK to receive fee instead of salary
 Duties
 Primarily performs office or non-manual work directly
related to the management and general business
operations.
 Exercises discretion and independent judgment in
matters of significance


New section on the use of manuals
Regulations provide examples of exempt and non-exempt
Cautions
37
 What does “significant” mean?
 i.e., “matters of significance,” “significant matters,”
“matters that have significant financial impact”
 Factors
Authority to formulate/interpret policies
 Authority to carry out major assignments
 Duties affect operations to a substantial degree
 Authority to commit money
 Authority to waive/deviate from policies

Typical Exempt Status under Administrative
Test:
38








Typically Exempt
Insurance claims adjusters
Financial services employees
Team Leaders
Executive/admin assistants
HR Managers
Management Consultants
Purchasing Agents
Buyers






Typically Non-Exempt
Financial services sales
employees
Personnel screeners
Comparison shoppers
Ordinary Inspection work
Graders/Examiners
Public Sector
investigators/inspectors
Professional
39
 Salary
 $455.00/week (Generally n/a to licensed lawyers, some
teachers, and certain medical professions)
 Two different duties tests:
 Learned Professional
 Creative Professional
Learned Professional, cont.
40
 Primary duty - work requiring
 knowledge of advanced type (predominantly
intellectual; requires consistent
discretion/independent judgment)
 in a field of science or learning customarily acquired
by a prolonged course of specialized intellectual
instruction.
4-year degree or experiential equivalent
 Specific skilled groups discussed in new regs (e.g., medical
technologists, dental hygienists, chefs, athletic trainers, and
funeral directors).

Computer Employee Exemption
41
 Salary= $455.00/week or $27.63/hour.
 Duties:
 Working as computer system analysts, software engineers, or
programmers;
 Primary duties include application of analysis techniques and
procedures

NOT everyone who works with computers.
To recap
42
 If your employees do not meet one of these
exceptions or exemptions, they the default is 1.5 OT.
 If your employees DO meet one of these exemptions,
they must perpetually maintain BOTH


Duties
Salary
Docking
exempt
e/ees’
salaries
can void
their
exempt
status.
Exempt Employee Docking Rules & Safe
Harbor
44
 Permissible exempt salary deduction:

full day absences (mostly N/A in public sector—see next slide) for
qualifying reason:







Unpaid suspensions for violating serious workplace conduct rules (e.g.,
sexual harassment, drug use)
Major safety violations
Illness/disability with other compensation
Offset jury duty, witness fees, military pay
Proportionate share of first/last weeks
FMLA
Full week absences for violating any other conduct rule
Public sector exception to salary
basis/docking
45
 Public sector employee
 who otherwise meets salary basis test
 but whose pay is, by law, subject to unpaid absence for
personal reasons, illness, or injury in partial-day
increments
 Won’t lose exemption if
Employer denies request for partial day paid leave
 Accrued leave has been exhausted
 Employee chooses partial day unpaid leave

Budget-required furloughs won’t disrupt salary basis
 Bottom line: Salary basis diluted in public sector, but
review reg carefully: 29 CFR 541.710; still advisable to
follow default

Safe Harbor
46

Safety net: minimizes impact of improper
deductions from an exempt employee’s salary.


Brief period of time to correct improper deductions
without jeopardizing exemption.
Requires:





Isolated/inadvertent deduction
Clearly communicated policy prohibiting improper
deduction
Complaint procedure
Prompt reimbursement
Good faith commitment to future compliance
What’s an hour “worked”?
47
 Working—On duty time furthering e/er goals
 Nearly all training




Must be voluntary and inapplicable to job to be unpaid.
Brief planned downtime (coffee breaks, lactation breaks)
All unplanned downtime…
BEWARE after-hours email, smartphone, voicemails

Consider a policy prohibiting (or limiting) such work
without prior written consent.
What’s NOT an hour “worked”?
48
 Sick
 Vacation
 Personal leave
 (Most) meal breaks
What’s in the gray zone of hours “worked”?
49
 Other meal breaks
 Control and length of time affect compensability of the time
 Travel
 Work pulling the regulations every time—it’s complicated
 On-call
 The more control you exert, the more likely it is compensable
Ways to make time off-duty
50
 Allow e/ees to leave site for meal breaks/on-call time
 Provide at least 30 minutes; 60 better
 Give reasonable time to report when on call
 Schedule/publicize call-in periods
 Minimize call backs
 Don’t require call-ins to wear uniforms (or provide
them at the work site)
 Encourage personal activity during on-call time
 Consider whether to discipline on-call violations
 Memorialize on-call policy in writing
What about Ohio law?
51
 R.C. Chapter 4111.
 Ohio’s Wage and Hour Bureau has significantly more
authority than before

Can now issues subpoenas, compel attendance of witnesses
and production of papers, books, accounts, payrolls,
documents, records, and testimony in investigating
 No personal staff or policymaker exception
under OMFWSA
 Probably no comparable computer employee
exception, either

Consider whether IT people can meet another exemption.
Retaliation
52
 Employees are prohibited under both the FLSA and
OMFWSA from engaging in retaliation.
 This just in: Supreme Court decision from 3/22/11:
Oral, as well as written, complaints of FLSA
violations are now enough to state a retaliation
claim. Kasten v. Saint-Gobain Perf. Plastics Corp.,
No. 09-834
Places for good online help
53
 www.dol.gov
 FLSA and Regs
 Opinion letters
 Fact sheets
 Much, much helpful stuff – very user friendly
Recap: What to do
54




Audit job descriptions



Evaluate exempt / non-exempt classifications, paying
special attention to:
salary levels of any exempt employees that fall below
the minimum and that might not be “true” salaries;
classifications of non-manual workers earning
$100,000.00/year or more; and
whether exempt employees’ job duties meet the
exempt requirements
Too broad? Too narrow?
Audit process whereby e/ees record time—
accurate? No volunteer time.
Recap, cont.
55
Are you over/underpaying OT
Are you underutilizing various types of
compensation (flex, bonus, comp)
Evaluate pay / docking practices to ensure
compliance.





Are you missing exemptions?
Prepare “Safe Harbor” postings / memo /
handbook policy provision.
After all that is done:
56
 After all that is done, keep your eyes out for the April
2011 “Right to Know” regulations.

You can sign up to be alerted via e-mail at
http://www.dol.gov/dol/email.htm
 Confer with counsel to prepare and distribute your
compliance plan.
FMLA Changes
57
New FMLA Military Provisions
58

Two kinds:


Qualifying Exigency
Military Caregiver

New since January 2008

Expanded further in October 2009
New FMLA—Caregiver Leave
59
 26 weeks of leave for e/ees caring for “injured
service member”

Injured service member may be
Spouse
 Child
 Parent
 Nearest blood relative


NDAA Amendment (10/2009), adds
In addition to people in active duty, e/ees may also take leave
for veterans who are treated for service-related injuries
 Treatment must occur within 5 years of service
 Cannot use calendar-year method for calculating leave. Period
begins upon onset of leave.
 Injury may include aggravation of preexisting injury

New FMLA—Medical Certification
60
 Injured service member = any person injured in
line of duty on active duty
 Rendering service member medically unfit to
perform duties of his/her office, grade, rank or
rating
New FMLA—26 Workweeks of Leave
61
 May take more than one period
 Not more than 26 weeks in single 12 month
period
New FMLA—Qualifying Exigency Leave
62
 12 weeks of leave for
 Any qualifying exigency arising from



spouse, son, daughter or parent of employee
who is deployed or called to active duty
in a foreign country
 Pre-NDAA Amendments required the active duty be in
support of contingency operation for the National Guard or
Reserves. This requirement = eliminated.
New FMLA—Qualifying Exigency
 (1) short notice
 (7) post-deployment
 (2) events/activities
activities
 (8) additional
activities
 (3) childcare/school
 (4) financial/legal
 (5) counseling
 (6) rest/recuperation
63
New FMLA—No Overlapping
FMLA/Military Leaves
64
 Leave that qualifies as both FMLA leave and
service member care leave cannot be
designated and counted as both.
New FMLA—Husband and Wife Provisions
for Three Kinds of Leave

12 week shared aggregate for
Birth/placement of a child, care of a newborn
 Care of a parent with a SHC

26 week shared aggregate for care to servicemembers
with serious injuries or illnesses
 Spouses get to determine how to allocate the leave
between them
 Remaining balance of leave available for other
qualifying events

65
New FMLA Forms
66
 All available on DOL’s website, as Appendices to
the new FMLA Regulations
 Employee Rights and Responsibilities (to be
posted as part of Notice Req.)(Appx. C)
 Notice of Eligibility (includes e/ee Rts & Resp.)
(Appx. D)
 Certification of Health Care Provider for Family
Member’s Serious Health Condition (Appx. B)
 Certification of HCP for E/ee’s SHC (Appx. B)
 Designation Notice (Appx. E)
 Military Leave Forms (Appx. G & H)
Veteran/Military Discrimination in Ohio
67
 In addition to USERRA, FMLA, and R.C. 4112.02, a new
Ohio law affects employees in the armed service.
 Eff. 7/2/10, most Ohio employers with must provide leave
to military spouses or parents when family member is
called to active duty or injured or hospitalized while serving
on active duty. (R.C. Chapter 5906)
A Few (but not all) RC 5906 Specifics:
 Similar eligibility as FMLA: 50 e/ees, 1 year of service, 1,250 hours in
prev. year

Note: NO 75-mile radius requirement for those 50 employees.
 Narrower leave: Lesser of 10 work days or 80 work hours, 1x/per year
 Employee can’t have any other available leave, except sick leave or





disability.
Employers must continue benefits at the regular cost.
After leave, employers must restore employee to same or equivalent
job.
Retaliation is prohibited.
Employers cannot require employees to waive their leave rights.
Employees can sue for injunctive relief and damages to enforce rights.
FMLA leave for same-sex/common law co-parents,
and others—DOL Admin. Interpret. No. 2010-3
69
 Easier for adult caregivers of non-biological sons/daughters to
take FMLA leave.


FMLA has always provided 12 workweeks of unpaid leave for
birth/placement of a child; to bond with a newborn or newly placed
child, or to care for a child with a serious health condition.
The definition of “child” has always included both biological and adopted
children, foster children, stepchildren, legal wards, or any children of a
person standing in loco parentis.
 DOL has clarified that any employee with day-to-day
responsibility for caring for a child is entitled to leave,
regardless of child’s lack of biological or legal relationship
 Biggest impact: same-sex and common law co-parents
 Others: aunts, uncles, grandparents, stepparents
New DOL Nursing Mother Regs
70
Lactation Breaks
71
 The Patient Protection and Affordable Care Act
amended the FLSA to require employers to provide
reasonable lactation breaks to non-exempt
nursing mothers to express milk.

Small employers (<50) might obtain a waiver if they can
demonstrate undue burden, but this will be difficult for most.
Conditions of Lactation Breaks
72
 Need not be paid, but if employer provides other





paid breaks, these must be paid. (Usually > 20
minutes must be counted as hours worked/paid.)
2-3 breaks of 15-20 minutes per 8 hours
Must be provided for 1st year of child’s life
Must be in a place that is NOT a bathroom, shielded
from view and co-worker/public intrusion.
Need not be exclusively dedicated to nursing
mothers, but must be available.
Must provide ability to safely store milk
Where can I read more?
73
 The DOL issued fact sheet #73 which provides
further guidance:
http://www.Dol.Gov/whd/regs/compliance/whdfs7
3.Htm.
 It accepted public comment on these interpretations
until recently, and final regulations are expected
later this year.
The Ethical Role of Court
Personnel
74
Legal Advice
-vsLegal Information
Important Note
 Ohio has not adopted guidelines of
permissible/impermissible conduct for court personnel;
rather, we primarily work from the Ohio Code of Judicial
Conduct, which sets forth a number of obligations for
court employees.
 Ohio Code of Judicial Conduct Rule 2.12: A judge shall
require court staff…to act in a manner consistent with
the judge’s obligations under this code.
 There is no official position from the Supreme Court of
Ohio or the Board on the Unauthorized Practice of Law
regarding assisting pro se litigants.
Court Personnel Serve Three Primary
Functions:
Provide Access to
Important Information
Provide Service to the
Public
Provide Management of
Pro Se Litigation
Avoiding the Dissemination of
Legal Advice
Always Remember:
 As representatives
of the Court, staff
have an implicit
amount of
authority.
Why Can’t Court Personnel Give Legal Advice?
UPL
Legal Information Possessed by Clerks
Impartiality
of the courts
Neutrality
Impartiality – acting without bias or prejudice toward any litigant (e.g.,
helping/hurting).
Neutrality – the court does not predetermine the outcome of litigation or recommend
a course of action.
What is the Practice of Law?
 Providing legal advice / counsel
 Preparing pleadings/papers
 Managing actions
 Legal opinions
 IMPORTANT: Not just representing clients in a
courtroom.
What is the Unauthorized Practice of Law?
 Supreme Court – Original Jurisdiction
 Gov.Bar Rule VII(2)(A)
Public policy – persons should not receive legal advice
from non-lawyers.
 “Gov. Bar R. VII is built on the premise that limiting the
practice of law to licensed attorneys is generally
necessary to protect the public against incompetence,
divided loyalties, and other attendant evils that are often
associated with unskilled representation”.

The Key to Keeping Your Staff out of
Trouble?
 Always encouraging them to provide Legal
INFORMATION
 Never providing Legal ADVICE
 Teaching them to distinguish between the
DIFFERENCES
Legal information v. Legal advice
 Legal information—Generic
Books,
pamphlets, guides,
information possessed by government
workers and clerks of court
Information about court
processes/terminology
Rules/legal concepts
Legal Advice
 Legal advice—Specific / Tailored
 Application
/ analysis / research
 Affects the rights and obligations of
individuals under the law
 Often irreversible (e.g., Statute of
limitations)
 Legal Interpretation
 Procedural Advice
 Legal Research
 Legal Opinion
Test for Legal Advice
 Am I offering information to a client with the
view of having them act upon that information in
furtherance of their best interest?
 Am I responding to a question that started with the
words “Should,” “Could,” or “Would”? (Advice Words)
Or
 Am I responding to a question that started with “What
is,” “Where is,” “Can I,” or “How do I?” (Information
Words)
Legal Information v. Legal Advice
 Legal Information
 Legal Advice
-
You will receive notice of
your hearing date in 4-6
weeks.
-
You won’t receive any notice
because you are filing in the
wrong court. Case dismissed.
-
You can use a pro se packet
to file your motion.
-
You need to use the paternity
pro se packet, not the
support packet.
-
Your signature must be
notarized for the Court to
accept this filing.
-
If you do not file by
Wednesday, your objection
will be late, and the court can
dismiss it.
-
If you are on vacation in
May, it is not a problem, the
Court always grants
continuances.
-
The document you received
is your summons. You are
being ordered to appear on
May 5, 2011, at 3:00 p.m.
Can Do/Cannot Do (1 of 3)
Can Do
- Provide Legal Definitions
- Provide Procedural
Definitions and
Explanations
- Provide Citations for
Statutes, Court Rules,
and Ordinances
Cannot Do
- Provide Legal Interpretations
or Advice
- Provide Procedural Advice
- Provide Research of Statutes,
Court Rules, Ordinances, or
Opinions about
(In)Applicability
Can Do/Cannot Do (2 of 3)
Can Do
- Provide Forms and
Instructions on How to
Complete the Forms
Cannot Do
- Fill out Forms UNLESS a
handicap/illiteracy requires
scrivener services
- Provide Public
- Provide Confidential
Information
- Provide General Referral
Information
Information; proprietary info
about court operations; or
relay ex parte communication
- Provide Specific Referral
Information
Can Do/Cannot Do (3 of 3)
Can Do
- Provide Options
Cannot Do
- Provide Opinions
- Facilitate Access to the - Discourage Access or
Courts
- Refer questions to
supervisors when you
don’t know the answer
Encourage Litigation
- Provide Incorrect
Answers/Guess at Answers
you don’t know
Legal Definitions v. Legal Interpretation

How would you define child abuse?
a)
b)
c)
d)
I would describe it as excessive spanking.
Do you know a child that may be abused?
The Ohio Revised Code defines child abuse at chapter
2151.031.
You need to ask an attorney.
Legal Definitions v. Legal Interpretation

Several young children living next door to me are without
supervision most of the day. Is that child neglect?
a)
How old are the children and how long are they unsupervised?
b)
That sounds like neglect, do you know the name of their parent so
I can report this to a prosecuting attorney?
c)
Since I’m not an attorney I cannot make a legal interpretation,
but let me refer you to the appropriate agency.
d)
Let me call my brother who is an attorney and ask him.
Procedural definitions v. Procedural
advice

My nephew is being arraigned today. What happens during the
arraignment?
a) I do not spend much time near the courtrooms. Why don’t you go
the hearing and see first hand?
b) This is the first time your nephew will see a judge, and he will need
to plead not guilty or guilty. By the way, what did he do?
c) This will be his first appearance before a judge. He will be
informed of his rights and formally charged.
d) Bail will be set. This judge always sets a high bail. Did you bring
enough money today?
Procedural definitions v. Procedural
advice

My neighbor’s dog bit me.Can I sue her?
a)
b)
c)
d)
I was bitten once and did not sue. Do you
know if your neighbor has liability
insurance? That usually helps.
I’m not an attorney, but anyone can sue.
You’ll need to ask an attorney.
Sorry, I cannot provide legal advice – this
is a decision only you can make.
Citation of Rules, Procedures v.
Research

How long do I have to file my responsive
memorandum?
a)
b)
c)
That is addressed in Local Rule 12.
Give me your name and case number and I will ask the
judge in the case.
You’ll need to consult with an attorney. I cannot help
you.
Citation of Rules, Procedures v. Research

Please give me copies of all laws and case decisions
regarding stalking in Ohio.
a)
b)
c)
d)
I would be happy to. Please return in two days, and I
should have the information for you.
Do you want federal laws too?
That is outside the scope of my duties as a clerk, but I
can refer you to the law library.
I’m sorry; I cannot conduct legal research for you.
Options v. Opinions

I received a judgment. Now, how do I collect it?
a)
b)
c)
d)
Good luck – there’s a huge difference between getting
a judgment and collecting it.
That’s a good question for your attorney.
Now that you won, you will need to go back to court
and ask the judge to garnish wages or sell the debtor’s
property.
There are several options you may discuss with
counsel – issue a writ of garnishment, a writ of
execution, or a discovery subpoena.
Options v. Opinions

Should I file a writ of garnishment or a writ of
execution?
a)
b)
c)
d)
I would go with the garnishment; its easier and you’re
guaranteed to get money every month.
You’ll need to ask an attorney.
I can explain the difference between the two, but I
cannot make a decision for you.
I cannot answer your question.
Pro Se Litigants
(i.e., the Do-it-Yourselfers)
Pro Se Litigants
 The temptation for your staff will be to be especially
helpful:

However, they must be mindful of the Court’s obligations of:
Neutrality
 Impartiality
 Avoiding UPL

Barriers to Self Represented Litigants
 The Barrier of Legal Language
 Complexity of the Clerk’s Office
 Problems with Simple Requirements
 E.g. Service
Pro Se Task Force Report
Pro Se/Indigent Task Force Report
Recommendations
#32
#33
Training of court staff.
Adopt written guidelines for court personnel
who are responsible for providing information
to pro se litigants.

#34
#39
Consider sites such as SelfHelpSupport.org and Probono.net (a
site for courts to use in supporting pro se litigants) and
LawHelp.org (a site for low- and moderate-income pro se
litigants)
System to review cases filed by pro se litigants
(case managers).
Unbundling of legal services by attorneys.
Ex Parte Communication
What is ex parte communication?
 A communication, concerning a pending or
impending matter, between counsel or an
unrepresented party and the court when opposing
counsel or an unrepresented party is not present; or
 any other communication made to the judge outside
the presence of the parties or their lawyers.
Ex Parte should be avoided
 Rule 2.9, Comment 1:
 To the extent reasonably possible, all parties or their
lawyers shall be included in communications with a
judge.
 Having conversations without one side does not
support the court’s obligations of neutrality or
impartiality.
Code of Judicial Conduct Rule 2.9(A)(3)
 A judge may consult with court staff …whose
functions are to aid the judge in carrying out the
judge’s adjudicative responsibilities…provided the
judge makes reasonable efforts to avoid receiving
factual information that is not part of the record and
does not abrogate the responsibility personally to
decide the matter;
Code of Judicial Conduct Rule 2.9(D)
 A judge shall make reasonable efforts, including providing
appropriate supervision, to ensure that this rule is not
violated by court staff, court officials, and others subject to
the judge’s direction and control.
 If a party cannot have ex parte communication with the
judge directly, s/he may not do so indirectly through
court staff.
Other Barriers to Neutrality and
Impartiality
•L A W Y E R R E F E R R A L S
•W O R K P L A C E H A R A S S M E N T A N D
DISCRIMINATION
•R E V E A L I N G C O N F I D E N T I A L C O U R T
PROCESSES
Lawyer Referrals
 Referring a litigant to a particular attorney does not
support the Court’s obligation of impartiality or
neutrality.
 Instead, staff should refer them to Lawyer Referral
Services, Legal Aid, or the Public Defender’s office.
Workplace must be free of harassment and
discrimination on the basis of:





Sex
Sexual
orientation
(Judicial Canons
& Local
Ordinance)
Race
Ethnicity
Color








Marital Status
Childbearing
Status
Age
Religion
National Origin
Ancestry
Handicap
Disability




Military or
Veteran Status
Socio-economic
status
Political belief
Any other
protected class
Anti-harassment/discrimination
extends to the public:
 OCJC 2.3 (B): A judge shall not permit
court staff to manifest bias or prejudice, or
engage in harassment, on these bases.
Confidential Court Processes
 Court personnel may have access to operational
information that would benefit one side or another if
revealed (e.g., case assignment procedures).
 It is your obligation to keep these matters
confidential to remain neutral and impartial to all
parties.
Duty of Confidentiality
Ohio Code of Judicial Conduct 2.10(A)-(C)
 A judge may not publicly comment on
pending/impending cases that may affect outcome or
fairness of the matter.
 A judge shall require court staff to refrain from
making the same types of comments.
Confidentiality
 Court records are largely public; however:
 Not every fact known to court employees is open for
dissemination to the public.

Even those facts that are public should be disclosed in a way
that reflects positively upon the Court.

Staff should be counseled to avoid gossip/sensationalism.
The Myth of At-Will
Employment
116
Who can be
terminated, and
who can’t?
At-Will Employment
117
Court Employment
118
 Most judges have universal powers of
appointment/termination, aka:



Serve at the pleasure of the judge
Unclassified
At-will
 Some limited exceptions exist to this rule:
 Classified employees (e.g., common pleas probation, local
ordinance)
 Union
 One big exception virtually swallows the rule:
Harassment, Discrimination & Retaliation
Protected Classes
119
 Race & Color
 (Sexual Orientation)
 Gender, Pregnancy & Marital Status
 Any other characteristic or conduct
 Religion
protected by law

 National Origin, Ancestry &
Citizenship
 Age
 Military /Veteran Status
 Non-Disqualifying Disability or
Handicap



FMLA, FLSA, ADA, USERRA
Public Policy
Associational Retaliation
Constitutional protections




1st Am (speech, association,
political affiliation)
4th (search/seizure)
Due process
Equal Protection
Workplace Discrimination
120
 Adverse decisions in:










Hiring and Recruitment
Promotion
Retention
Transfer
Working Conditions
Training
Compensation
Provision of Leave
Suspension
Termination
 On the basis of membership in any of the protected
classes
Workplace Harassment
121
 Unwelcome and Adverse Treatment
 Epithets, slurs
 Threats or intimidating behavior
 Negative stereotyping
 Denigrating jokes, literature
 On the basis of someone’s membership in a
protected class

Sexual harassment is just another form of workplace
harassment
 Does not protect against mere personality
differences
Sexual Harassment
122
 May be based on sex, gender, or sex stereotypes
 Can include:
 Quid Pro Quo or Hostile Work Environment Harassment
 Committed by people inside or outside your workforce




E.g., Litigants, attorneys, vendors, employees of other agencies
May occur when overheard by the “unintended” third party
Conduct by/to both genders
Conduct that was previously consensual
What is optimally in the file before
considering termination?
123
 Documentation to demonstrate the employee knew
what was expected of them




Job description
Evaluations
Handbooks
Discipline
 Documented instructions of how to succeed
 Coaching notes / discipline / evaluations
 Documented warnings that failure to correct bad
behavior would result in termination
What is optimally NOT in the file?
124
 Information in OTHER files that similarly situated




employees were treated differently in this situation
All this documentation…created only in the recent
past
Glowing evaluations
Missing documentation that has been lost in
cyberspace or overwritten by the entity backing up
your computers
NOTE: All of these problems can be mitigated, but
they put the termination higher on the spectrum of
risk.
E-mail
125
 E-mail is great for productivity and increasing the
likelihood matters get documented; however,



ALL personnel-related e-mails (as well as any
documentation/e-mails created in the ordinary course of
business that document the operations of the entity) are public
record.
Ohio R. Super. 26.01(J): 10 years past last date of employment
Ideally, preserved in electronic form; however, printout is
better than nothing
Know where the e-documents live and ensure they are properly
preserved.
 Ensure backup tapes can be pulled when necessary

E-mail, continued
126
 Employees should be trained to understand that
anything they put in e-mail should be composed with
as much care and caution as any other document


Workplace harassment, confidentiality, and First Amendment
issues apply equally to e-mail
Public Records Act applies equally
Discrimination, Harassment &
Retaliation Law Update
127
New associational retaliation claims available
128
 The law now prohibits retaliation against e/ees who are
merely associated with e/ees who engage in protected
activity. Thompson v. North American Stainless, 131
S.Ct. 863 (January 24, 2011).
 E/ee filed discrimination Charge with EEOC; three weeks
later, employer terminated her fiancé.
 Held: Title VII’s anti-retal. provision applies to
associated 3rd parties.
 Who is associated? “Zone of interest”



Definitely those connected by marriage or close family relationship
Definitely engaged
Co-habitants? Boyfriend/girlfriend? Friends? Distant cousins?
GINA
129
 The Genetic Information Nondiscrimination
Act of 2008 prohibits the improper use of genetic
information in employment.

Employers can’t use individuals' genetic information when
making hiring, firing, placement, or promotion decisions.

Genetic discrimination and harassment are prohibited by the
law.

Final GINA regulations recently went into effect (1/10/11—one
year after the law).
What is “genetic information” under GINA?
130
 The employee’s genetic tests
 Employee’s family members’ tests
 Family medical history
 Employee’s request for / receipt of genetic services or
participation in clinical research that includes genetic
services by the employee or family member
 Genetic information of an employee’s unborn child or
employee’s pregnant family member’s unborn child (same
law applies to frozen embryos).
 Not limited to inheritable diseases—adopted family
members are covered, as is information regarding the
manifestation of the disease, not necessarily inherited.
Specific prohibitions
131
 Employers may not request genetic info, including
obtaining employee info by




Internet searching
Actively listening to third party conversations
Searching personal effects
Asking about an individual’s current health status in a way that
is likely to obtain that information (“Does cancer run in
your family?”)
 Limited exception for inadvertent “water cooler”
collection of info (e.g., “how are you” is still okay)
 May still obtain FMLA info
Wellness programs
132
 Still okay to acquire genetic info for wellness
programs if enrollment is voluntary, but employees
must give prior, voluntary, knowing, and written
authorization.
 Info must remain confidential
 Okay to offer financial incentive to participate, but
may not offer inducement to provide genetic info
(e.g., may offer money to join, but can’t make
providing genetic info a condition precedent to
joining)
 Must provide programs/incentives universally.
Safe Harbor—include whenever seeking medical info
133
 The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits
employers and other entities covered by GINA Title II from requesting or
requiring genetic information of an individual or family member of the
individual, except as specifically allowed by this law. To comply with this law,
we are asking that you not provide any genetic information when responding to
this request for medical information. ‘Genetic information’ as defined by GINA,
includes an individual’s family medical history, the results of an individual’s or
family member’s genetic tests, the fact that an individual or an individual’s
family member sought or received genetic services, and genetic information of
a fetus carried by an individual or an individual’s family member or an embryo
lawfully held by an individual or family member receiving assistive
reproductive services.
 Include in every ADA, FMLA, return-to-work
certification.
GINA Posting Requirements
134

All public-sector employers must post a GINA notice in a
workplace common area.

Download a GINA-compliant EEO poster at
www.dol.gov/ofccp/regs/compliance/posters/pdf/eeopost.pdf
Next steps
135
 Update FMLA and fitness-for-duty forms and ADA




accommodation paperwork to include the safe
harbor language.
Train managers, supervisors, and HR personnel,
especially as to the potential for liability in casual
conversation.
Update handbooks to include genetic info.
Update postings
Consider wellness programs
ADA Amendments Act of 2008 (ADAAA)
136
 Effective January 1, 2009
 ADAAA overturned a series of ADA decisions by the U.S.
Supreme Court
 It expanded the scope of medical conditions protected by the
law.
 More individuals will be protected under the revised law
 We’re just beginning to see cases that come under the new
regs.
 EEOC Final Regulations released on March 24, 2011
ADAAA Changes—Broad Coverage
137
 Definition of disability must be construed in favor of
a “broad coverage of individuals … to the maximum
extent permitted” by the statute.


Rejected S.Ct.’s decision that impairment must “significantly
restrict a major life activity
Opted for the broader “substantially limit” a MLA
 Shorthand: Under the new regs, consider
substituting the word “disability” for “medical
condition”—actual, past, perceived.
Broad Coverage, Defined
How severe must an impairment be to “substantially limit” a MLA?
138
 Old Law: Impairment must prevent or severely
restrict the individual from doing activities that
are of central importance to most people’s daily
lives.
 New Law: Definition of disability is construed in
favor of broad coverage
Conditions that were previously excluded are likely now
included.
 Examples: carpal tunnel, severe back pain, obsessivecompulsive disorder, learning disabilities, and
depression
 But still case-by-case determination

What is a Major Life Activity under the
broader ADAAA?
139







Walking
Running
Hearing
Seeing
Speaking
Breathing
Bodily Function









Immune
Digestive
Respiratory System
Normal cell growth
Bowel / bladder
Neurological / brain
Circulatory
Endocrine
Reproductive













Caring for oneself
Performing manual tasks
Eating
Sleeping
Standing
Lifting
Bending
Learning
Reading
Concentrating
Thinking
Communicating
Working (broad class of jobs)
Episodic / In-remission Impairments
140
 Impairment in remission
 Old law: impairment must last for a significant period of time
to constitute a disability.
 ADAAA:
 Episodic impairments that substantially limit a major life
activity when active
 Medical conditions that are in remission that substantially
limit a major life activity when active
Examples: cancer, diabetes, serious heart conditions, and epilepsy
 Pre-ADAAA, some courts found these were not disabilities
 Post-ADAAA, these are likely to be considered disabilities under
the new law
 Still case-by-case consideration.

Mitigating Measures
141
 Old law: Evaluate person’s abilities after the use of
corrective / mitigating measures (e.g., medication,
hearing aids)
 New law: Cannot consider effects of mitigating
measures in determining whether impairment
substantially limits a MLA.
Examples: medication, hearing aids, prosthetics,
 Exception: ordinary eyeglasses/contacts not considered


But can still be used to determine whether impaired
ADAAA Changes
142
 Regarded as Disabled--Broader
 An individual meets the requirement of being “regarded as”
disabled whether or not the actual or perceived impairment
actually limits or is perceived to limit a major life activity.

Employer must only believe the employee have a medical
impairment.
Two pro-employer developments in the ADAAA
143
 Regarded as Disabled
 “Regarded as” claims cannot be based on transitory and minor
impairments where the impairment that is expected to last less
than six months.



The only perceived “impairments” that don’t count are those that
are both transitory (<6 mos) AND minor.
Also, employers are not required to provide a reasonable
accommodation to individuals who are regarded as disabled.
Now very easy to sue under the “regarded as” prong, as long as
employees aren’t challenging failure to accommodate.
 No reverse discrimination by undisabled.
ADAAA, In Summary
144
 More accommodation
 More individuals will be protected under the ADA
 Employers will need to engage in the reasonable accommodation process
more frequently.
 Focus will shift from whether e/ee is disabled, and switch to whether
adverse actions motivated by disability or whether employee was denied
a reasonable accommodation
 Fewer cases dismissed
 More employees will be covered by the ADA
 Fewer cases will be dismissed on MSJs


Important for employers to search out / take requests for
accommodation seriously
Be mindful of ADA claims when disciplining/terminating employees
with a medical condition
EEOC’s ADAAA Rules
145
 Examples Illustrating Definition of Disability

EEOC notes that analysis of disabilities can be divided into three
categorical methods.
Impairments that will consistently result in a determination that the
person is substantially limited in a major life activity (ex. deafness,
blindness, intellectual disability, cancer, major depression etc).
 Impairments that may be substantially limiting for some but not
others. These may require more, “though still not extensive,” analysis
(ex. Asthma, high blood pressure, anxiety disorder, carpal tunnel
syndrome etc).
 Temporary, non-chronic impairments of short duration with little or
no residual effects that usually will not substantially limit a major life
activity
 However, a temporary impairment lasting fewer than 6 months can
still qualify (ex. 20 pound lifting restriction lasting several months).

Hidden effect of new ADAAA
146
 ADA class actions were routinely unsuccessful
because too difficult to define disabled class
members.
 Now that disabilities are so much easier to prove,
anticipate class claims for:




Improper employment application/interview questions
Improper post-offer medical examinations
Terminations at the end of medical leaves of absence
Other systemic/routine policies that affect individuals with a
medical condition.
ADAAA Cases
147
 Verhoff v. TWC—6th Cir. 2008 (pre-ADAAA)
 Watts v. UPS—6th Cir. 2010
 Previewed how 6th Cir. Will be applying ADAAA
 Noted “broadened” definition of disability, expanded list of
MLAs, and disregard of mitigating measures
 Recognized Toyota Motor Mfg. (interpreting ADA strictly to
create a demanding standard for disability) no longer good law
 Jenkins v. Nat’l Bd. Of Med. Ex. –6th Cir 2009
 Dist. Ct. applied old standard
 6th Cir. Remanded, ordering new relaxed standard for
disability.
 Most ADA law on “disability” is now bad law.
What should we do now? (1 of 2)
148
 Change your paradigm: Nearly everyone is disabled.
 Bone up on reasonable accommodation analysis—
you’ll be offering them more often.
 If a medical condition renders an employee unfit,
ensure you carefully walk through accommodation
options with counsel.
What should we do now?
(2 of 2)
149
 Closely monitor post-offer medical screens:
 Ensure docs aren’t routinely rejecting certain conditions
 Ensure rejections are deemed preliminary until reviewed by
counsel/HR (may require HIPAA auth.)
 Audit your medical leave policies, especially those
that automatically terminate after FMLA leave, etc.
 Biggest impact: Cat’s Paw
 Front line supervisors and low-level managers should be
trained and know when to refer matters up the chain.
Pregnancy Discrimination in Ohio
McFee v. Nursing Care Mgmt. of Am.—O.Sct., June 22, 2010
150
 Policy required 1 year of service before eligible for leave for any reason.
 Employer fired McFee 3 days after she gave birth because ineligible for
more leave. McFee sued for sex discrimination.
 Holding: Ohio’s antidiscrimination laws did not require that employers
provide employees with a reasonable period of maternity leave when
the policy at issue imposed a uniform minimum-length-of-service
requirement for leave eligibility with no exception for maternity leave.
 Harmonized Ohio’s pregnancy discrimination regulations on
mandatory maternity leave—OAC 4112-5-05(G)(2) and (G)(5).
 Takeaway-- employers may terminate pregnant employees who haven’t
met minimum-length-of-service requirements under neutral policy.
McFee, cont.
151
 Three caveats:

Leave policies must be neutral.


Leave, if offered, must include maternity.


An employer cannot have a maternity leave policy with a length-of-service
requirement, and a different leave policy for other situations with no
length-of-service requirement, or one of a shorter duration.
Employers do not have to offer maternity leave to employees. However, if
leave is offered for any reason, it must include maternity leave in at least
the same amount and on the same conditions as other types of leave.
Leave provisions must be consistent.

Merely having a neutral policy does not grant an employer carte blanche
to terminate pregnant employees or new moms. The policy must still be
applied equally to all employees with similarly disabling conditions.
Social Media and the Courts
152
ARE YOU READY?
Social Media and the Courts
http://www.youtube.com/
watch?v=Z4gt62uAasE
So what is all this “social media”
buzz I’ve been hearing about?
154
SOCIAL INTERACTION
PUBLISHING
USING THE INTERNET TO COMMUNICATE TO
A LARGE NUMBER OF PEOPLE ON A RAPID
BASIS
OFTEN EXECUTED WITH LITTLE EDITING,
PREMEDITATION, OR FILTER
How has this played out in the courts?
155
 U.S. v. Hernandez (S.D. Fla)—10 of 12 jurors had
disregarded the Court’s instructions to avoid the
Internet during the trial, and they had researched
the case online.
 Bloggers, Twitter “tweets,” and Facebook updates
keep the public apprised of events in real time.
 Voir dire beginning to address whether jurors can go
on a “media fast.”
Three questions to consider in looking at
your workplace:
156
 How many of your employees:
 Have a blog?
 A Twitter, MySpace, Facebook, or LinkedIn account?
 Post videos of themselves to YouTube?
 Why do I care?
 And what can I lawfully do to monitor and control
that content?
Where does all this information get published?
157
 Blogs – websites where authors regularly post
entries, often with the ability for feedback from
viewers.
 Microblogs—Twitter
 Social Networking—Facebook, MySpace, LinkedIn
 Posting—YouTube, Shutterfly, Flickr


Thousands of others available—these are just some of the
biggest
These are all accessible via traditional PC, netbooks, tablets,
and smartphones—everywhere, all the time.
Why do I care?
158
 Productivity costs
 Perception of the courts / potential for confidential
or inappropriate information to be disseminated.
 Potential employment law concerns
Productivity
159
 Social media = constantly plugged in, updating, and
changing
 You still control the workday—okay to limit personal
Internet use, social media access, cell
phone/smartphone during work time (not breaks)
 Balance productivity against
 realistic ability to enforce these rules
 Potential perception / morale issues with employees.
Perception of the Courts
160
 Consider how posts like the following would impact
the public’s perception of the courts:

My supervisor cuts out every Friday at noon and we have to
pick up her slack.

Can’t believe how wrong the jury was in the Smith case. Were
they even paying attention?

The Jones case should be interesting to watch—it could have
gone an entirely different way if had been assigned to Judge
Johnson.
Potential claims against
161
Employees
Employers
 Defamation and other
 FCRA
PI torts
 42 USC 1983
 EEO
 Retaliation
 Invasion of Privacy
 42 USC 1983 (1st, 4th)
 PI torts
 3d pty negligent hiring
What about the First Amendment?
162
 Free speech re: official duties only protects matters
of public concern (Garcetti v. Ceballos)


Political, social, or matters of other concern to the
community
Not petty workplace squabbles
 Free speech unrelated to official duties = subject to
balancing test.


Spanierman v. Hughes, 576 F.Supp.2d 292 (D.Conn
2008)(teacher’s opposition to Iraq war, inappropriate
exchanges with students, on MySpace)
Balancing test between how Constitutionally important speech
is vs. employer’s interest in efficiency and workplace harmony
Factors to evaluate in balancing speech
163
 Will speech create problems in maintaining





workplace discipline or harmony?
Does employment relationship require loyalty or
personal confidences?
Will speech impede ability to perform duties?
What was the time, place, manner, or context of the
speech?
Is debate vital to informed decision making?
Is the speaker regarded as a member of the general
public?
Don’t forget about FCRA and privacy
164
 Employees maintain an expectation of privacy
 Guest v. Leis, 255 F.3d 325 (6th Cir. 2001)—no expectation of
privacy in publicly posted materials, BUT
 Avoid violating terms of service to surreptitiously access SM
sites
 Don’t adopt aliases to “friend” employees or circumvent proper
channels to see their sites. (Pietrylo v. Hillstone Rest. Group,
2008 US Dist LEXIS 108834 (D. NJ)
 FCRA requires written consent/disclosures before
conducting third-party background checks
Quon v. City of Ontario, 130 SCT 2619 (2010
165
 First Supreme Court case address public employees’
privacy expectations in employer-issued electronic
devices (e.g., pagers, cell phones, smartphones).
 Employee used work-issued pager to send personal
texts, including “sexting.”
 Employer’s audit of pager failed to violate 4th
Amendment because the employer had a legitimate
reason for the audit (to determine if the character
limit on the contract was reasonable).
Bottom line of Quon
166
 While the employer won that case, the SCT made
clear:

Employees may assume a legitimate privacy interest in
employer-issued electronics.


NOTE: Therefore, put explicit disclaimers in your policies that
they should not maintain such an expectation, and reserve the
right to audit for any reason.
Absent a legitimate, work-related reason, the employer could
not violate that privacy right.
Job References
167
 Consider defamation, discrimination, and all the
same employment law filters when receiving
LinkedIn requests for references.


If you only provide name, rank, serial number in real world,
why deviate here?
Of course, avoid reference for terminated employees—difficult
to defend legitimate, nondiscriminatory rationale afterwards.
Drafting a social media policy
168
 Cover what is prohibited
 Discussion of court confidences / private information
 Airing internal grievances in a manner that is unbecoming or
harmful to the public’s perception of the court.
 Anything that would otherwise violate court policy (e.g.,
workplace harassment)
 Consider whether you want to restrict “friending” between
certain categories of people (probation staff & probationers)
 Cover what is required
 Maintaining duties of confidentiality, impartiality, UPL
 Maintaining respect for co-workers, privacy of litigants
Sample
169
 A clearinghouse of over 200 social media policies is
available at
http://www.compliancebuilding.com/about/publications/s
ocial-media-policies
 If you copy one, be sure to use one developed for the
public sector, and it’s a good idea to coordinate with
counsel.
Basic sample (page 1 of 3)
170
The Court’s policies on employee conduct are equally
applicable to activity that occurs online.
Employees should consider these policies
whenever posting content to electronic mail, chat
rooms, text messages, blogs, social networking
sites (e.g., Facebook, MySpace, Twitter, LinkedIn),
or other public forums.
Basic sample (page 2 of 3)
171
 Regardless of whether their conduct occurs online or
elsewhere, employees remain equally responsible to
maintain the confidentiality of non-public Court
information, avoid workplace harassment, and follow all
other Court policies designed to ensure workplace
productivity and public confidence in the Court.
Basic sample (page 3 of 3)
172
 Any public post should have clear disclaimers that
the views employees express do not represent the
views of the Court. Employees should remain
respectful to the Court, co-workers, litigants, and
other visitors to the Court in online posts, avoiding
any online conduct that could negatively impact
the public’s perception of the Court. Nothing in
this policy is intended to alter or infringe upon
eligible employees’ rights of free speech or ability
to speak out on matters of public concern.
Employment Law Update
173
Kimberly Vanover Riley, Esq.
Montgomery, Rennie & Jonson Co., L.P.A.
Cleveland
(440)779-7978
kriley@mrjlaw.com