Tuesday, May 26, 2015

Ohio Employer's Law Blog Update

Recently, the Cuyahoga County Court of Appeals stymied an attempt by an employer to enforce an arbitration agreement against an employee. The employer was a Burger King franchise and the employee was a former employee claiming she was raped by her supervisor in the restaurant’s men’s bathroom. The court, in Arnold v. Burger King, concluded that, for various reasons, enforcing the agreement against her and requiring her to arbitrate her claims would be unconscionable.

Arnold notwithstanding, arbitration continues to the favored method used by employers to limit their potential exposure in front of a jury. I, however, am not a fan of arbitration agreements. Conventional wisdom suggests that arbitration is quicker and cheaper means to resolve lawsuits. Research, however, suggests that the opposite may better match reality.

lf arbitration is neither faster or less expensive than court, but you still want to foster expediency and limit the risk of a runaway jury verdict, consider two possible alternatives.

Contractual Waivers of Jury Trials

First, employers can have employees sign agreements waiving the right to ask for a jury in any subsequent legal disputes. More than 20 years ago, in K.M.C. Co. v. Irving Trust Co., the 6th Circuit stated: “It is clear that the parties to a contract may by prior written agreement waive the right to jury trial.... [T]he constitutional right to jury trial may only be waived if done knowingly, voluntarily and intentionally.” The contract should clearly and unambiguously advise the employee that by signing the agreement the employee is giving up any and all rights to have any claims related to his or her employment raised by a jury. The more broadly the waiver is drafted, the more likely it will cover an employment-related claim, provided it is otherwise knowing and voluntary.

Agreements to Shorten the Statute of Limitations

Secondly, employers can attempt to limit the amount of time employees have to assert employment claims. In Thurman v. DaimlerChrysler, Inc. [pdf], the 6th Circuit held that a clause in an employment application limiting the statutory limitations period for filing a lawsuit against the employer was valid. Thurman’s employment application with DaimlerChrysler contained a clause waiving any statute of limitation and agreeing to an abbreviated limitations period in which to file suit against the employer. Specifically, the clause stated:

READ CAREFULLY BEFORE SIGNING I agree that any claim or lawsuit relating to my service with Chrysler Corporation or any of its subsidiaries must be filed no more than six (6) months after the date of the employment action that is the subject of the claim or lawsuit. I waive any statute of limitations to the contrary.

The Court held that the abbreviated limitations period contained in the employment application was reasonable, and that all of Thurman’s claims against DaimlerChrysler were time barred by the six-month limitations period. The Court paid particular attention to the “read carefully before signing” language, and noted that it was in bold and placed conspicuously directly above Thurman’s signature acknowledging that she read and understood the document. It also found the specific language used was clear and unambiguous.

The advantage of using these types of clauses is that you can limit the duration of potential liabilities. For example, in Ohio employees have 6 years to file discrimination claims (other than age) under R.C. 4112.99. A clause such as the one in Thurman would shorten that time frame from 6 years to 6 months, a dramatic improvement.

According to a recently published Harris Poll 52 percent of employers use social media to research job candidates. This number is up from 43 percent in 2014 and 39 percent in 2013.
What information are employers looking for?
  • 60 percent are looking for information that supports their qualifications for the job.
  • 56 percent want to see if the candidate has a professional online persona.
  • 37 percent want to see what other people are posting about the candidate.
  • 21 percent admit they’re looking for reasons not to hire the candidate.
The same poll found that 35 percent of hiring managers who use social media to screen applicants have sent friend requests or otherwise attempted to connect with applicants online. As stunning as that number is, it’s even more stunning that 80 percent report that job seekers report accepting such requests.

Employers, please stop the insanity. I’m not treading new ground here by telling you that you are taking a huge risk by Googling or Friending applicants without proper checks in place to guard against the disclosure of protected information. “What types of information,” you ask? How about information about the individual’s medical history or religious preference, for starters.

Yes, there are a host of reasons to engage in these searches. Indeed, I believe that, in a world of increasing transparency online, employers take a risk by not including Facebook in their pre-employment background searches. But, it needs to be part of larger background screening program. And, you need to ensure that you have the right checks in place to keep protected information (such as EEO stuff) as far away from the decision makers as possible.

How do you do this? Train someone external to your hiring process to perform the searches, and provide a scrubbed report to those internal to the hiring process. These scrubbed reports should be void of any protected information, while including any info relevant to the hiring decision (such as whether the applicant has ever trashed an ex-employer online, or disclosed an ex-employer’s confidential information, or exhibits poor judgment by posting inappropriate or harassing stuff).

And, for god’s sake, please stop Friending job applicants. It’s just plain creepy

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