Is your reason for termination honest, logical, and complete? If not, you may get a scary result in your discrimination case

Posted by Robin E. Shea on June 13, 2013

If you fire an employee for an indefensible reason, chances are you will get a charge or a lawsuit out of it, even if the indefensible reason was legal. That's HR/Legal 101. (In other words, don't believe thatBates Motel.Madame_Tussauds_London_00810_Nevit.jpg "employment at will" propaganda.)

If you realize your reason wasn't too good and therefore "improve" it a little after the fact, that just makes things worse. If you "improve" it more than once, that makes things exponentially worse. The indefensible reason, coupled with the fact that you changed your story multiple times, will be evidence that your stated reasons were a pretext (cover-up) for an unlawful reason . . . like discrimination. And that is scary. Allow me to illustrate with a court decision that was issued this week.

True story, you guys.

It was a dark and stormy night . . .

The plaintiff, Ms. Hitchcock (her real name), worked for a private home health care agency. At some point, she learned that she was pregnant, and she informed her supervisor, who had allegedly told a co-worker in similar circumstances for the third time, "If I were you, I'd have an abortion."

OK. Now the supervisor may or may not have really said this, but it's a summary judgment case, so we have to assume for now that she did. She didn't (allegedly) say that to Ms. Hitchcock, but she did ask Ms. Hitchcock whether she planned to quit her job after the baby was born. Ms. Hitchcock said it was too early to tell -- she was only three months pregnant. Then her boss allegedly started dumping mountains of work on Ms. Hitchcock for no apparent reason and making it hard for Ms. Hitchcock to get all of her work done in her 40 hours a week.

We'll come back to that later. Anyway, one day, Ms. Hitchcock was sent on a call to do an intake and assessment for a new client, a 100-year-old lady. Ms. Hitchcock was sick and couldn't go as originally scheduled, but they rescheduled the visit for about a week later, and Ms. Hitchcock showed up as rescheduled.

Hitchcock,_Alfred_02.jpgGoood eeeevening. The following story is entirely true and factual.


Ms. Hitchcock was greeted at the door by the lady's son. (We'll call him Norman - not his real name.) Norman was not very welcoming and said that he did not think his mother needed the assistance of Ms. Hitchcock's employer. However, he finally cooperated and told her that his mother was napping. Ms. Hitchcock obtained the necessary information from Norman and then asked to see the old lady. Norman didn't want to let her see the old lady, but Ms. Hitchcock insisted, so Norman "reluctantly" took her to his mother's bedroom . . .

. . . and Ms. Hitchcock saw the lady lying face down, very still (as in "not moving at all"), and saw a stain on the sheet near her mouth. She told Norman that the stain looked like blood and asked to get a closer look at his mother. Norman wouldn't let her, and Ms. Hitchcock got a really bad feeling and got the heck out of there. She went back to her office, about 10-15 minutes away.

When she arrived, she met with her boss (yes, same boss described above) and told her the whole story and said that she was creeped out and was afraid that the old lady was, in fact, deceased. Together, they called Adult Protective Services, which returned the call after about a half hour and told them to call 911. Which they did. Meanwhile, the boss told Ms. Hitchcock to go ahead and enter the new client into the system (just in case she was still alive? who knows?). Which Ms. Hitchcock did.

Eventually, the authorities said that the poor lady had been dead for 2-3 days at the time of Ms. Hitchcock's visit to the home. Which would explain the son's strange behavior.

Not long afterward, Ms. Hitchcock was fired over this visit.  

What?

Did I mention that Ms. Hitchcock was pregnant? And that her boss allegedly didn't like employees with babies? Needless to say, Ms. Hitchcock sued for pregnancy discrimination.

 

MORE IS BETTER, RIGHT?

A number of reasons for Ms. Hitchcock's termination were given by the employer at different times:

1. She completed an admission on a deceased client. Yeah, that seems dumb, and maybe even dishonest.* Except for the fact that this was (allegedly) exactly what her boss told her to do.

*I know nothing about Medicare fraud, but I wonder if something like that was involved. Compare, for example, this. Am I being too conspiratorial here? Probably. It just seems weird to me to "admit" a client you were pretty sure was dead.

2. She endangered the client's health and safety. Endangered the health and safety of someone who was already deceased? 

3. If the client had been alive, which of course she was not, Ms. Hitchcock would have endangered the client's health and safety by not doing a proper assessment and not taking care of the stain or whatever it was near the client's mouth. Uhh . . . except . . . the client in fact wasn't alive and hadn't been for a few days. And, in any event, her son wouldn't let Ms. Hitchcock near her to make an assessment. This explanation was in the supervisor's summary judgment affidavit.

4. Ms. Hitchcock performed "a deficient assessment on a client who had passed away." (With no explanation of what was "deficient" or how you'd do a sufficient assessment on a deceased client whose son wouldn't let you come near the body.) This was in an executive's summary judgment affidavit.

5. Ms. Hitchcock waited too long to call 911. Except that she promptly told her boss everything that was going on, and the boss also waited half an hour to call 911.

 

Aspic-with-eggs.jpgThis employer's story just ain't jellin'.


A federal magistrate actually granted summary judgment to the employer on Ms. Hitchcock's pregnancy discrimination case, but she appealed and a panel of the U.S. Court of Appeals for the Seventh Circuit -- which hears appeals from federal courts in Illinois, Indiana, and Wisconsin -- reversed. The appellate panel, viewing the facts in the light most favorable to Ms. Hitchcock, said (1) there was evidence that her boss was not favorably disposed toward pregnant employees, and (2) Ms. Hitchcock was fired for a bunch of inconsistent reasons, none of which made any sense, after she had announced her pregnancy. In other words, "If it doesn't jell, it isn't aspic, and this ain't jellin'." In other words, because the employer's story kept changing and never really made sense, Ms. Hitchcock had enough evidence that the stated reasons for her termination were a pretext for pregnancy discrimination.

So Ms. Hitchcock gets a jury trial.

What a bizarre case, huh? And who knows what really happened?

 

THE MORAL

Employers, be aware that the reason you initially provide for terminating an employee is the one you will have to live with forever, through thick and thin, unemployment hearings, administrative charges, and lawsuits. Therefore, it makes sense to invest some time at the beginning to make sure that your stated reason (1) is truthful and supported by the evidence, (2) makes sense, and (3) covers all the bases.

If you have a reason that doesn't meet these three criteria, then the employee will be able to claim that this isn't the true reason for the termination, and that the true reason is an illegal one -- discriminatory, or retaliatory, or something else that will cost you a lot of money and heartache.

 

A MORE MUNDANE EXAMPLE

Here's another example that I see frequently. An employee is a lackluster performer but isn't really bad enough to be fired. The employer gets into a downsizing mode and decides to terminate the mediocre employee while eliminating jobs. Makes sense, right? Why put good employees out of work when you have somebody who is barely cutting it?

So, this is usually fine to do. But what would you tell this employee when explaining why he was losing his job?

Most employers want to keep it neat and tidy. They'll either tell the employee he was fired for poor performance, OR they'll tell the employee that he was laid off in a reduction in force. But not both.

 

Messy room.512px-Messy_storage_room_with_boxes.jpgUnfortunately, the truth is not always neat and tidy.


Of course, either one of these reasons, taken in isolation, is not true and is not supported by the evidence. The employee's performance, while mediocre, was not poor enough for termination, and this wasn't a true RIF selection, either. And it's also not the complete story. So these reasons used alone fail all three of my criteria (honest, makes sense, and covers all the bases).

What I recommend in these situations is to be honest and complete. The truth is not always tidy. Explain (both to the employee and in any documentation) that the employee was terminated because of the combination of the need to eliminate positions generally and this employee's mediocre performance in particular. It may not be as clear-cut as you'd like, but you'll be able to defend yourself because it's what happened. And what happened was legal. (And, if you want, you can still agree to treat it as a "RIF" for purposes of severance or unemployment.)

 

EEOC SUES DOLLAR GENERAL, BMW OVER CRIMINAL BACKGROUND CHECKS

In other news, I'm sure you've heard about the EEOC's criminal background check lawsuits filed this week against Dollar General and BMW. The suits contend that the companies' criminal background policies create a disparate impact on African-Americans.

I've seen a lot of commentary on the internet that is condemning the companies based solely on the allegations in the EEOC's lawsuits. That isn't fair -- the companies haven't even had a chance to respond. In each case, the EEOC obviously put its best foot forward, picking out a single specific instance of a good, long-term African-American employee who was let go after the company learned that he or she had a relatively minor criminal conviction in the distant past. We'll keep you posted as the cases progress, and we'll especially look forward to hearing what the companies have to say.

Image credits: Wikimedia Commons.

Moms rule in lactation, pregnancy, and health insurance challenges

Posted by Robin E. Shea on June 07, 2013

Mother's Day is long past, but you'd never know it -- in employment law, this has been the Week of the Moms. Here's a roundup - tell us what you think!Whistlers_Mother,_James_Abbott_McNeill_Whistler_cropped.jpg

First up: Title VII's ban on pregnancy discrimination includes discrimination based on lactation or the need to express milk. The U.S. Court of Appeals for the Fifth Circuit* has held in a lawsuit filed by the U.S. Equal Employment Opportunity Commission that lactation is a "pregnancy-related condition" and that Title VII prohibits discrimination based on pregnancy or pregnancy-related conditions. Therefore, discriminating against a woman because she is lactating or because she needs to express milk violates Title VII.

*The Fifth Circuit hears appeals from federal courts in the states of Louisiana, Mississippi, and Texas.

My two cents: Of course it does! I am surprised that anyone would have thought otherwise. None of which means that the employer in this case necessarily did that. But the summary of the evidence in the court's decision doesn't look great for the employer -- the employee was terminated when she was ready to return to work from maternity leave and asked about a place where she could express milk.

(This type of "discrimination" could also violate the Fair Labor Standards Act, now that it has been amended to require "lactation accommodation" in certain circumstances.)

So, chalk up another win for the EEOC and send them a breast-milk lollipop! (Artificially flavored, thank heavens. I wish I were kidding, but I am not.)

Now, tell us what you think. Is lactation related to pregnancy? Do you think an employer ought to be able to fire or refuse to hire a woman who needs lactation breaks at work? Would you eat a breast-milk-flavored lollipop, as long as it was vegan?

Second up: Catholic Archdiocese of Cincinnati is hit for $170,000+ in pregnancy discrimination case. I reported on this case about a year ago, when the Archdiocese unsuccessfully tried to have the lawsuit dismissed for failure to state a claim. An interesting intersection of pregnancy discrimination rights, modern reproductive technology, and the rights of religious organizations to enforce their tenets.

The plaintiff was an unmarried computer teacher at two Catholic schools in the Archdiocese. She was not Catholic and did not teach religion or do any of that "ministerial" stuff as part of her job. She learned that she was pregnant and informed her principals. The teacher clarified that she had conceived the child, not through extra-marital relations*, which would be a sin, but through in-vitro fertilization. Well, guess what - in vitro fertilization is also a sin under Catholic doctrine. The Archdiocese mandated that her employment be terminated.

*In fact, at some point it became known that she was in a same-sex relationship, which also would have violated Catholic teaching, but apparently that had nothing to do with the decision to terminate her employment.

When I reported on the case last year, it was because the court had determined that the teacher was not a "ministerial employee" and therefore the Archdiocese could not get the lawsuit dismissed right off the bat without discovery or a trial. The case went to a jury, and this week, the jury decided in the teacher's favor, including $100,000 in punitive damages. The Archdiocese is reportedly considering whether to appeal.

The lawyer for the Archdiocese has been quoted as saying that this was a simple breach-of-contract case and should have been treated as such (the teacher had signed an agreement saying she would abide by Catholic teaching).

 

Two cents.1870_two_cents_rev.jpgWARNING: Editorial comment incoming!


My two cents: Religious employers should have the right to require employees to abide by their tenets. And even a non-religious teacher in a religious school sets an example for the students, so I can see why the Archdiocese wouldn't necessarily care whether she was "ministerial" or not. I think it is a shame that this case went to a jury -- I would not expect most juries to side with a religious employer that took action based on teachings that were not "in synch" with the beliefs of the wider society. That's part of why we have things like ministerial exceptions, not to mention the First Amendment. For all of these reasons, and so that we can get some clarification on how religious/morals clauses work for non-ministerial employees, I hope that the Archdiocese appeals.*

*A finding that an employee is "non-ministerial" means that the case won't automatically be thrown out of court. But even if the employee is non-ministerial, it seems to me that a religious employer should be able to require the employee to behave in a manner that is not blatantly inconsistent with the employer's beliefs. If I'm right about this, then an employer should be able to win summary judgment even against a non-ministerial employee if there is no "genuine issue of material fact" that the employee was terminated for overtly violating a bona fide tenet of the faith, a legitimate, non-discriminatory reason for discharge.

ON THE OTHER HAND . . . if a religious employer is going to insist that employees abide by the tenets of the faith, then the employer ought to clearly explain what those tenets are -- especially if the employees are from other faiths, or maybe even non-believers. Many religious beliefs are not self-evident.

The teacher in this case claimed that she had no idea that in vitro fertilization was prohibited by Catholic doctrine, and that may very well have been true. If she didn't know, then it doesn't seem fair to take action against her.

The other thing I hate about these "morality" cases is that the consequences always seem to fall on the unwed mother. I realize that "unwed fathers" escape in most cases because (a) there are no visible consequences when guys violate -- er -- religious doctrine, and (b) these situations usually come up at schools, and most schoolteachers are female, anyway. And presumably there are female teachers who are getting away with -- violating religious doctrine -- because they haven't become pregnant. I know all this. But it still bothers me that it's almost always the pregnant woman who suffers.

So, in summary, I respect the Archdiocese for sticking to its principles and hope they don't give up, but at the same time it sounds as if their case had some weaknesses.

What do you think? Do you agree that a religious employer has the right to require all employees to abide by its tenets? Was this teacher a victim of pregnancy discrimination, in your opinion? How should religious employers deal with -- violations of religious doctrine -- in a way that doesn't disproportionately affect pregnant women?

Third up: Women's advocacy group sues "major employers" under Affordable Care Act for not offering maternity care to employees' dependent children. The National Women's Law Center has filed complaints with the U.S. Department of Health and Human Services' Office of Civil Rights against several large employers, including Auburn University, Gonzaga University, and Penn State for failing to provide maternity health insurance benefits to dependent children of their employees. (Apparently, these employers do offer maternity care to spouses and domestic partners of their employees.)

 

Girls.Termiz,_little_girls_(6240966929).jpgYou wouldn't discriminate against us, would you?


According to the Law Center, these may be the first complaints of their kind under the Affordable Care Act (aka "Obamacare"). The Law Center contends that the employers are discriminating on the basis of sex by failing to offer a category of care needed by the daughters, but not the sons, of their employees. Not all of the employers targeted have commented on the complaints, but Gonzaga contends that its health insurance coverage complies with the law.

My two cents: The Affordable Care Act does prohibit sex discrimination "in health care programs that receive federal funds" and discrimination "against pregnant women on the basis of sex." And now that kids are covered until age 26 . . . ugh, I don't know. What do you think? Maybe we should just go to single payer and put ourselves out of our misery? (Kidding!)

 

After this post, it will be a relief to think about Father's Day, and power tools, lawn mowers, gas grills, and other "guy" stuff. I couldn't find a non-copyrighted picture of my hero, Hank Hill, to post here, but this is even better:

 

Lawn mower racing.2007_swifts_creek_lawnmower_races01_edit.jpgVroom! Go, dads!

 

Image credits: Wikimedia Commons.

Are these medical questions illegal, or not? Test your knowledge!

Posted by Robin E. Shea on May 31, 2013

How much do you really know about the Genetic Information Nondiscrimination Act? Here's a quick quiz:

Which of the following is an unlawful request for "genetic information"?

  1. "Our company requires a post-offer, pre-employment medical examination that includes a complete genotype. We will need to verify that you have all 46 chromosomes but no extras. And any mutations will disqualify you from employment."
  2. "Our company requires a post-offer, pre-employment medical examination that includes DNA testing."
  3. (Asked by doctor in post-offer, pre-employment medical examination) "Oh, you're married? How is your husband's health?"
  4. (Asked by doctor in post-offer, pre-employment medical examination) "Have you or anyone in your family ever had any of the following conditions: heart disease, cancer, hypertension, diabetes, mental illness, or the heartbreak of psoriasis?" (Vintage commercial starts at 19:01:09.)
  5. (Said by your supervisor at work) "I am so sorry to hear that your mother has cancer. Does it run in your family?"
  6. (Said by your supervisor at work) "You're adopting a baby? GREAT! Did you make sure that he doesn't have any chronic health problems?" (NOTE: I'm not asking whether the question is tacky but whether it is illegal.)
  7. Nos. 1 and 2 only.
  8. Nos. 1, 2, and 4 only.
  9. All of the above.

 

Students.Escuela_normal.JPG"Dude. This quiz is a piece of cake."


I promise to give you the answer at the end of this post. Meanwhile, if you haven't already read about the EEOC's recent GINA settlement with Fabricut, go here and read, and you will get a great big hint THAT THE CORRECT ANSWER IS "ALL OF THE ABOVE."

Certainly 1 and 2 are obvious. That is what most people think of when they think of "genetic information." But, as I've been warning for quite some time, the definition of "genetic information" is much broader than that. Just about any request for family medical history is considered a request for "genetic information."

OK, I know what you're thinking . . .

But doesn't the Americans with Disabilities Act let you send an employee for a pre-employment physical? Yes. And what if the doctor just asks those questions and you don't even know because the doctor isn't your employee? It doesn't matter. You are still liable. And, anyway, what doctor worth his salt would not ask a patient about family medical history? You are absolutely right. If I were you, I'd write my congressperson.

 

Senate-Logo.svg.pngBlame them. They're the ones who passed this law.

 

I know another thing you're thinking . . .

How can it be "genetic information" about the employee when you're asking about a spouse or an adopted child? I know! They aren't even blood relatives. That makes no sense whatsoever. I hear ya. Unfortunately, nobody asked me for my opinion.

Well, Robin, what good are you?

Not much, but I did accurately predict when GINA was new that it would become a popular "add-on" claim when the EEOC or a plaintiff was really trying to establish a violation of the ADA or another law with medical implications. Sure enough, it appears that the EEOC did exactly that in the Fabricut case. The charging party claimed that she was rejected for a job (in violation of the ADA) because the doctor determined that she had carpal tunnel syndrome, which she denied having. Then, apparently, the EEOC got her medical records and saw what the company's doctor was asking. Family medical history all over the place. So Fabricut promptly agreed to settle. Even though the company might have had some strong defenses to the ADA claims, it sounds like the EEOC had 'em on the GINA violation.

 

Scream.tif.jpg"I've been asking for 'genetic information' and didn't even know it! Aieeeeeeeeeeeeeee!"


Here is what I'd suggest you do to have a clean GINA bill of health:

  • Make sure that you understand the GINA and its requirements. Here's a place to get started, which includes links to the regulations and GINA's all-important safe harbor language. You can also go here and scroll down to Item No. 6. And you might find this helpful, too.
  • Check with your health care providers and make sure they are not asking offerees or employees any questions about "family history." Better yet, instruct them in writing not to do it. Ask to see a blank copy of the medical questionnaire they use. If it has family history questions, delete them from the version used in your medical examinations. If you have given your health care providers specific instructions not to ask about family history, and they continue doing it anyway, find a new health care provider.
  • Every time you send an offeree or employee for ANY legally authorized medical examination, include the "safe harbor language" in the paperwork you give to the employee. You can add this to the forms you already use, or you can hand it to the employee on a separate sheet of paper. This safe harbor language will protect your company if the health care provider "accidentally" asks questions that he shouldn't be asking. (But if you find that these "accidents" are occurring frequently, start looking for another health care provider. The EEOC has indicated that even the safe harbor language may not protect an employer whose providers are continually requesting genetic information.)
  • The above suggestions apply to ALL legally authorized medical examinations that are required by employers -- post-offer, pre-employment medical examinations, requests for medical certification under the Family and Medical Leave Act, medical examinations to determine the need for a reasonable accommodation, fitness for duty certifications under the FMLA and other return-to-work authorizations, workers' comp-related medical examinations, you name it. 
  • OK - two exceptions. The only type of employer-mandated medical examination to which these rules do NOT apply is where the employer is requesting a medical certification for FMLA leave based on the medical condition of the employee's family member (either a "serious health condition" of the employee's spouse, parent, or child, or military caregiver leave). Of course, if the family member is the one with the medical condition, asking for the certification would by definition be an unlawful request for "genetic information." So the law makes an exception for these situations. 

In case you missed it, the correct answer to the quiz was "ALL OF THE ABOVE." Did you ace it? I have no doubt!

 

Image credits: Wikimedia Commons.

Employees: Better think twice before suing your employer (four reasons why)

Posted by Robin E. Shea on May 23, 2013

Last week I busted on "my own side" by giving four reasons why employers shouldn't be so quick to fire their employees. To be fair, this week I'll talk about the other side -- four reasons why employees shouldn't be too quick to sue their employers.

DISCLAIMER: I am a defense lawyer. That means that, in any kind of workplace legal dispute, I am on the employer's side, not the employee's side. Always. Even though many of my best friends are employees and plaintiffs' lawyers. The following is not legal advice.

So, you don't have to believe what I'm about to say. But I make this post in good faith, based on my experience and observations in many years of employment litigation.

Are you still here? Cool! Here we go.

1. Even if you got the shaft at work, it is unlikely that you were treated illegally. The law does not require employers to treat their employees like "family," or to be nice, or even to be particularly fair. In fact, employers can usually be downright jerks as long as they are equally jerky to everybody. They can be arbitrary and play favorites as long as they're not making distinctions based on "protected" categories, like race or sex. 

 

Teddy Bears.Tommy_Bear_and_Snuggles.jpgThere is no legal right to a warm and fuzzy workplace.


If you read this blog very often, you know that I am a strong advocate of treating employees respectfully, fairly, and with dignity. So is everybody in Human Resources who's worth a darn. But we feel that way because it's the right thing to do, not because it's the law.

The American legal system would collapse in a heap if people could sue every time their feelings were hurt. Our system is designed to prevent only the worst kinds of behavior -- you know, like murder, armed robbery, and driving 70 in a 55. It's supposed to keep us from being at each others' throats. That's it. Anything more is left to our respective senses of common decency. (Scary, I know!)

If you sue your employer, it won't be enough for you to prove that your employer made the wrong decision, or even that your employer was a no-goodnik. If you don't have a valid legal claim against your employer, then you will ultimately lose your case. One big reason to think twice before you sue.

2. Litigation is long, drawn-out, stressful, and painful. The only people who really enjoy litigation are lawyers. No one else could possibly be that sick. And, here's a secret: not even lawyers are that crazy about litigation. Judges (who are usually lawyers) are always after the parties to try to settle, which would end the case before the judge has to hear it. Lawyers are usually the same way -- they are rarely averse to settlement, although they'll fight to the death if that's what the client wants. Why do you think most courts nowadays have mandatory mediation? If even lawyers don't necessarily like litigation, just think about how much you will hate it.

 

Judge_Judy_next_to_painting.jpg"C'mon, you guys . . . DON'T MAKE US TRY THIS CASE!"


"Well," you retort, "if lawsuits are that bad, then my employer will pay any amount to get rid of it, right? So it's still worth it to sue."

Well, no. Or, at least, not necessarily. You see, your employer gets sued a lot. This is what they call a "cost of doing business" in the United States. It is true that your lawsuit will be stressful and disruptive for your company. But it will be a lot more stressful and disruptive for you, who are not used to the court system or dealing with lawyers, and you don't even know whether it's a trap when the employer's lawyer says hello to you and offers to shake hands.

The distraction and stress of a lawsuit may also make it more difficult for you to do well in your new job. And having to continually dwell on an unpleasant experience (as you'll have to do while your lawsuit lasts) is difficult and stressful.

3. You may find out that your co-workers are not on your side. You feel very strongly that your employer did you wrong. You find a lawyer willing to take your case. You sue, and start taking depositions of all of your co-workers, who were your BFFs when you worked there. Well. It turns out that your BFFs weren't such BFFs after all. They say, "I liked Maudie, but I felt that she was out of line, and in my opinion she was treated fairly." And then you have the co-worker who saw you when you were not at your best, and she testifies about all the things you said to her in confidence when you were having a rotten day. Which are embarrassing. And which do not help your case. On the record. In a verbatim transcript, for cryin' out loud.

What happened to these people?

Most plaintiffs' lawyers will tell you that the co-workers are afraid of retaliation by the company if they don't side with the company and diss you. I am sure that happens sometimes, but I don't think it explains the majority of these situations. What I see most of the time are two phenomena:

*Most people consider a lawsuit an "act of war." They probably were on your side when you all worked together and went out for mai tais and kvetched about what was going on at the office. But that was just gossip, harmless venting. Nobody thought you were really going to sue! And now, thanks to you, they're being dragged in front of lawyers and court reporters and judges and juries, and they're ticked off. And maybe what they said to you in confidence about the boss is coming out -- while the boss is sitting across the table with a stern-looking lawyer in a pinstripe suit. AWKWARD! No wonder they've turned on you.

 

Cocktails_03.jpgJust because they said it over these . . .

 

Judges.jpg. . . doesn't mean they want to say it in front of these.


*Some employees really, sincerely do believe the company was in the right. Is the boss perfect? Of course not. But he's an overall decent guy who tries to be fair and treat employees right. And maybe you shouldn't have been so stubborn/absent from work/insubordinate/lazy yourself.

Recall No. 2, above. Finding out that your co-workers don't support you is one of the "painful" parts.

4. You may be opening up your own life to scrutiny. This is another "painful" part. In order to get more money, and because you really were very upset when you were fired, your lawyer includes a claim for emotional distress in your lawsuit. Next thing you know, the company has asked for your medical and psychiatric records dating back 10 years. And maybe you saw a shrink a few times and have been diagnosed as bipolar. Along with a few physical conditions that are not appropriate to mention in a family blog. Surely you don't have to share that information with the company's lawyers! Do you?

YOU ALMOST CERTAINLY DO. If you claim emotional distress (you don't have to, but you may not get as much money if you don't), most courts say you have put your own emotional condition at issue and the employer is entitled to find out how much of your (just as an example) bipolar disorder was caused by your termination and how much you had all along (in which case the company isn't responsible for it). 

 

Walter_Winchell_Kiss_of_Death_trailer_scrennshot_(3).jpg"Good evening, Mr. and Mrs. America and all the ships at sea -- Norman has seen a psychiatrist three times and says his wife doesn't understand him!"


Your employer may also be able to dig into your past employment record, including that time you got fired from a previous job after you tested positive for angel dust, your criminal background, your five previous marriages, and your history of filing lawsuits. Perhaps you have nothing to hide. But a lot of people (most?) have a few skeletons that they'd just as soon not have the rest of the world know about.

What you probably don't have to worry about

Now, note what I have not mentioned: (1) That your employer will fire you for filing the lawsuit (assuming you did it while still employed); or (2) that your employer will blacklist you, and you'll never work again if you sue. The reason that I did not mention these is that they very rarely happen. Retaliation -- either during employment or afterward -- for filing a lawsuit in good faith against an employer is usually illegal, and almost all employers know that. If it happens and you can prove it, you might have a pretty good case. But don't bet on being able to do that.

 

Of course, I'm not saying you should never file a lawsuit against an employer, but it should almost always be a last resort. It's better to try resolving your dispute through the company's grievance procedure or open-door policy, or by going to Human Resources. If you're terminated, you may be better off negotiating a nice separation package and shaking the dust from your feet. If all of those fail, and if you've taken a good, critical look at your own performance and behavior, and still feel strongly that you were mistreated, then by all means consult with a lawyer who represents employees in workplace disputes. But keep in mind these hidden costs of litigation that you'll face, no matter how strong your case may be.

Image credits: Wikimedia Commons.

Four reasons your employment lawyer thinks firing should be a last resort

Posted by Robin E. Shea on May 17, 2013

Last week's post about whether certain employees in the news deserved to be fired, in addition to generating some great comments from readers, got me thinking about firings in general.

I don't like to fire people. 

Asteroid_falling_to_Earth.jpgWhat's the world coming to?


And I know what you're thinking -- then why in the world is she even an employment lawyer!?! She needs a new career! I know. I've fired a few people myself. And, of course, termination is often the best of several lousy options. 

But, let's face it -- terminating an employee is like invasive surgery and therefore should be a last resort. It may be the "least bad" choice, but it's never a GOOD choice. No matter how much you need it, it is going to cause trauma and involve serious risk. Sometimes I find that employers are too quick to go "under the knife" without a compelling need. 

(Usually not HR people or lawyers -- in my experience, it's usually their bosses.)

But, don't you make a lot more money when employees are fired right and left?

Think about your doctor. Have you ever had a doctor tell you, Oh, please don't lose that extra weight or quit smoking or drinking -- I like you just the way you are! It's my job to take care of unhealthy people!

 

Fred_Rogers.jpg"You're special just because you're you. I like you just the way you are."


Of course not. They never say that because they don't feel that way, even though they might indeed make more money if you stay unhealthy.

Believe it or not, honorable lawyers feel the same way about their clients. Sure, we may generate more billable hours and legal fees if you fire somebody without a good reason and end up in five years of expensive litigation. But we actually prefer for your sake that you avoid it. We'd rather have you running marathons and looking 45 when you're actually 60. Figuratively speaking, of course.

So, with that introduction, here are four reasons your employment lawyer thinks firing should be a last resort. (If you're a lawyer or in HR, you can print a copy of this post and give it to your leadership. Hehe.)

Reason 1: Nobody's perfect. Everybody has good points and bad points. Of course, sometimes the bad points may be of such a nature that there is no way the person can function in your workplace, and in those instances termination is usually the only choice. But many other times, the person is valuable in the "good" ways, and if you terminate her because of the ways that she's not so good, you may just be trading one set of irritations for another. Instead, it often makes a lot more sense to let your employees complement each others' strengths and weaknesses.

 

Fabio_and_Fan.jpg"Carissima, even Fabio have ze imperfections. Once Fabio have ze hang nail. It was very upsetting."


Reason 2: It's traumatic to the employee. True confessions: I was fired once, when I was 16, from my first "real" job (part-time at Burger King) because I took too much time off work to hang out with my boyfriend. (I always made sure I had a substitute to work for me, but they didn't care -- life is so unfair!) Seriously, I am sure I deserved it, and that silly termination didn't affect me in any material way -- my parents were still supporting me, and they made me get another job at Arby's within a week, I think -- but it still really upset me to be fired. 

 

Burger_king_kamen.jpgWhen they said "Have it your way," I thought they were serious!

 

Well, think about how it must feel to lose your job in this bad economy when houses and cars and electricity and groceries, and your kid's college, are at stake. And maybe you view your co-workers as your "family," which a lot of people do, so you're not only facing bankruptcy but you're also being kicked out of the "family," too. And losing what, for most people, is a major source of their self-esteem.

Reason 3: Sometimes people can change if they're given a chance. It's often said that people never change. I don't buy that. Many employees can and do change if (1) they have the desire and ability to change, (2) they understand clearly what has to change and the consequences of not changing, (3) they are given the concrete support they need, and (4) they are encouraged as they make their halting progress in the right direction. I realize that #1 is a huge "if," but a lot of times employees screw up because they don't really understand the expectations or what is needed to accomplish them. Or they are deficient in a particular area only because they somehow got the impression that it wasn't a big deal to the company.  If they understand the real deal, they can be fine. (Case in point: me. After I Burger King taught me a lesson, I never played hooky from work again.) Considering the expense and disruption of hiring and training new employees, it's at least worth a try.

Reason 4: There's always a big cost associated with firing an employee. Here is where I appeal to your selfish nature. Even if you don't give a second thought to the employee's feelings (and I know you really do), here are a few of the costs, itemized for your convenience:

*Disruption and cost associated with recruiting, hiring, and training a replacement.

*Unemployment compensation for terminated employee.

*If you fight on unemployment, cost and disruption associated with that.

*Grievance administration.

*Disruption and cost associated with arbitration, if you have that.

*Possibility that arbitrator will reinstate employee with back pay, anyway.

*Cost of severance package, if you're lucky and employee takes it. 

*Cost and disruption associated with inevitable charge of discrimination if you don't offer severance or employee refuses to take it. Or complaint filed with the U.S. Department of Labor, or some other government agency. Or belated workers' comp claim. Or dealing with local personal injury lawyer who has taken employee's case.

*Disruption and expense of litigation or defense of administrative complaint.

*Cost of settlement, if you settle.

*Cost of summary judgment prep, if you don't settle.

*Cost of trial if you don't get summary judgment.

*Potential cost if jury finds in employee's favor, including, depending on the claim, the employee's attorneys' fees.

Now, if your employee never bothers to come to work, or is an embezzler, or a sexual harasser, or is incompetent despite your heroic and well-documented efforts to coach, or is "toxic," or is insubordinate, you're probably going to have to risk these costs. But if the employee doesn't fall into any of these clear-cut categories, think about working with him and giving him a chance to meet your performance or behavior standards. Who knows? He might just shape up, and you might just live happily ever after.

Image credits: Wikimedia Commons.

Should these employees have been terminated? Tell us what you think!

Posted by Robin E. Shea on May 09, 2013

Andy Warhol statue.512px-Bratislava_Venturska_ulica1.jpgAndy Warhol said that in the future everyone would be world-famous for 15 minutes. Wouldn't you hate for your 15 minutes of fame to be from getting fired from your job? Or having everybody on the Internet cyber-shouting for your employer to fire you?

Here are a few people whose 15 minutes came from an employment termination or calls for their termination. What do you think? Is termination too harsh, or just right? Overreaction, or completely justified and long overdue?

1. Our first entry is CBS Radio blogger (I mean, former blogger) Anna-Megan Raley (aka "Claire Crawford"), who made the fatal mistake of expressing the view that Oklahoma City Thunder cheerleader Kelsey Williams was a little too chunky to be a cheerleader. Reports indicated that Ms. Williams was a zaftig size 4, which is apparently a little on the large side if you're a cheerleader or runway model but delightfully petite if you're anybody else. Ms. Williams's fans had a fit, and within a short time, Ms. Raley/Crawford was no longer blogging for CBS Radio.

Was termination of this blogger too harsh, or just right?

I say too harsh. Bloggers are supposed to be opinionated and obnoxious. (Am I letting my personal feelings enter into this too much?) Anyway, in The Devil Wears Prada, the "devil"'s sidekick (Stanley Tucci) said that 6 is the new 14, which means that 4 is the new 12. Which really is a bit large for a professional cheerleader.

(Just kidding, Kelsey Williams! I think you look great! Constangy, please don't fire me!)


Cheerleader bulldog.Cheddar_Cheerleader.JPGAn unattractive cheerleader.


2. Newbie TV anchorman A. J. Clemente, in his very first on-air appearance on North Dakota's KFYR-TV, opened with two obscenities, thinking he wasn't yet on. As bad luck would have it, he was. The station immediately apologized to viewers, and shortly thereafter terminated his employment, which had barely begun. Mr. Clemente then went on to become an internet and TV sensation, appearing on Today, The Late Show with David Letterman, and This Morning With Kelly and Michael. He has been extremely good-humored about his mistake, and Station KFYR-TV actually got a lot of grief from people who said he deserved a second chance.

Was Mr. Clemente's termination too harsh, or just right?

I'd say this one was just right. Hats off to Mr. Clemente for blaming only himself for his problems, but the TV station really didn't have a choice. That said, I do hope that Mr. Clemente gets his dream job at ESPN.

3. Unidentified Cleveland, Ohio, police dispatcher who took the call earlier this week from kidnap/rape victim Amanda Berry when Ms. Berry and her fellow victims finally managed to escape from the home of Ariel Castro after 10 years in captivity. (Horrible, horrible story.) In the transcript of the call, the dispatcher seems cold and unconcerned when Ms. Berry identifies herself and begs for the police to come to the house quickly, before her captor arrives home. The dispatcher has also been criticized for failing to keep Ms. Berry on the line until the police arrived. The Cleveland police have promised to investigate, and the Internet is clamoring for the dispatcher's dismissal. No action has been taken yet, as far as I know.

Would termination of this dispatcher be too harsh, or just right?

I vote too harsh. The transcript doesn't read too well, but when you listen to the recording of the call, she sounds efficient but not at all dismissive of Ms. Berry. I even thought her tone sounded genuinely concerned, but as if her priority was to get someone out to the house ASAP -- exactly what a dispatcher is supposed to be doing? Also, the cops reportedly arrived on the scene within two minutes, which is fast.

4. Comcast sports announcer Susannah Collins accidentally said that the Chicago Black Hawks were having a lot of "sex" instead of "success." She immediately corrected herself, and there were lots of chuckles. Comcast fired her.

Too harsh, or just right?

I will give Comcast the benefit of the doubt on this one. Firing her for this slip of the tongue struck me as way too harsh. But I'm not sure that was the only reason for the termination. According to news reports, Ms. Collins's slip prompted Comcast to look further into her background, and they found that she had been co-host of a "raunchy" YouTube sports program. I found and watched one (I'm always on the lookout for you guys!) which didn't seem that bad, but there were a lot of others, and maybe she crossed the line in the ones I didn't see. I guess, based on her old show, Comcast may also have thought the "slip" was deliberate.

5. A ninth-grade English teacher at a public school in Florida was fired because she worked part-time as a swimwear model. Folks, these were not Lands End tugless tanks, if you catch my drift. View teacher pursuing her part-time position here.

Too harsh, or just right?

Seems kind of harsh to me, although I can see why a school might think her part-time job could become a distraction for some red-blooded ninth-graders.

6. A software developer -- a six-figure software developer, believed by his employers to be a genius -- actually outsourced all of his job duties to workers in China and spent his work days goofing off and collecting a paycheck. One of his employers finally figured it out and fired him.

Too harsh, or just right?

Just right, of course. Maybe the company can hire this guy's Chinese alter egos instead. But anyone as resourceful as this guy probably isn't going to be down or out for very long.

 

Chinese Worker_at_Seagate_tests_drives.jpg

"You know, he really is a genius. Just not in the way you thought."


7. Khloe Kardashian was fired (or not renewed) for Season 3 of The X Factor. She was reportedly awkward as a "live" TV hostess and occasionally made inappropriate comments that couldn't be edited out because the show was -- er -- live. Co-host Mario Lopez (formerly of Saved By the Bell) will be back. Was non-renewing Khloe

Too harsh, or just right?

 

Khloe_Kardashian_NOV_2011.jpgTell me again what the point of this family is? I don't get it.


I don't know. I could not bring myself to watch this show (I'm not that dedicated), so I don't know how bad Ms. Kardashian really was. Help!

Drop me a line in the comment box and let me know what you think! And happy Mother's Day to all you moms!

 

Image credits: Wikimedia Commons.

Is your company a target of the EEOC?

Posted by Robin E. Shea on May 02, 2013

Is your company an EEOC target?

I've written before about the Strategic Enforcement Plan of the Equal Employment Opportunity Commission, which was officially adopted last December, and the Commission's priorities. Last week, EEOC Commissioner Victoria Lipnic spoke about the Plan in more detail at legal compliance symposium.Darts_in_the_middle_of_a_dartboard.jpg

Commissioner Lipnic is a Republican who used to head the Employment Standards Administration of the U.S. Department of Labor under former President George W. Bush. In that position, she was over the Wage and Hour Division and the Office of Federal Contract Compliance Programs, among other agencies.

As one might expect from a Republican commissioner, Ms. Lipnic appeared to be somewhat less than 100 percent "on board" with the EEOC's current agenda. She reportedly expressed skepticism that use of credit histories in hiring created a disparate impact on women and minority applicants and said that she thought the EEOC should focus more on helping employers to comply with the law and less on litigation.

 

Victoria lipnicShadow.jpgVictoria Lipnic: Not a team player?

 

Anyway, here are five ways, according to Ms. Lipnic, that your company could become an EEOC target:

1. You use credit or criminal histories to screen new hires. Although Kaplan's recently cleaned the EEOC's clock in a credit history case, other employers can't necessarily count on doing as well. (In case you're feeling really cocky, please note that in the last couple of weeks, the EEOC has had some multi-million dollar wins. Read it and weep.) The EEOC is unfavorably disposed to the use of these screening devices. As stated above, Ms. Lipnic is skeptical about whether use of credit histories creates a disparate impact. On the other hand, criminal background checks have been demonstrated to have a disparate impact on African-American and Hispanic men. If you use credit or criminal background information in hiring, make sure that (a) the information is relevant to the position applied for and that you can prove it, and (b) you make an individualized analysis of each person who has a credit/criminal problem rather than flatly refusing to hire in all cases.

 

Clock.512px-Alarm_Clock_3.jpgThe EEOC's clock after Kaplan's cleaned it. (And still a little shaky from the experience.)


And, I hope this goes without saying, but you should never use arrests as a basis for declining employment -- convictions and pleas only.

2. You automatically terminate employees when they reach the end of their medical leaves of absence -- no ifs, ands, or buts. I've harped on this a number of times. The EEOC's position is that when an employee reaches the end of his or her allowable medical leaves, the employer should make a good-faith attempt to bring the employee back to work, with or without reasonable accommodations, before cutting the cord.

3. You won't accommodate individuals with disabilities (duh!) or pregnant women who have pregnancy-related limitations. The EEOC is looking askance at employers who will not make "accommodations" for pregnant employees but instead either fire them (hopefully not!) or force them to take medical leaves of absence. This is an unsettled area of the law -- generally, pregnancy is considered a "temporary disability" and so the courts have required employers to treat pregnant women the same as other employees with temporary disabilities. Of course, now that the EEOC has indicated non-permanent conditions may be "disabilities" within the meaning of the ADA, it's possible that a nine-month limitation would be considered a real ADA disability. At least, that's the EEOC's story, and they're sticking to it. 

 

Cinco de Mayo.512px-Cinco_de_Mayo_dancers_in_Washington_DC.jpgGratuitous Cinco de Mayo picture. These women do not appear to have any medical restrictions.


4. You run afoul of an "emerging issue." A big one for the EEOC right now is transgender discrimination. Discrimination against a transgendered individual isn't an ADA issue because the ADA specifically excludes "transsexuals" (the terminology that was being used in 1990, when the ADA was enacted). But it can be a form of sex discrimination, in violation of Title VII.

5. You have pay disparities based on race or sex. If you read this blog, you know I am a skeptic when it comes to the gender pay gap. But what I think doesn't matter. Ms. Lipnic says the EEOC will be on the lookout for equal pay cases to pursue.

I hope everyone knows the "equal pay drill" by now:

* analyze your comp yourself before the government does it for you.

* correct any disparities you may find that don't have good explanations.

* if you do have good explanations for disparities, be sure they are documented so you can prove it.

6. You don't respect your elders, and 50 is the new 40. Although the Age Discrimination in Employment Act protects individuals age 40 and older, Ms. Lipnic said that the EEOC is going to target employers who discriminate against employees 50 and older. In my opinion, this is a great strategy -- after all, age discrimination against people in their 40's is fairly rare. (Unless you're a fashion model, athlete, or TV anchorwoman.)

 

 

Old man.Cassana_Old_man.jpg"Don't hate me because I'm over 50!"


Anyway, back to the EEOC. I know that none of you would dream of discriminating against an employee because of age. But do be sure that you have well-documented reasons for taking action against an older employee and that you are treating that older employee the way you would any "similarly situated" younger person. Also, be even-handed in making hiring and promotion decisions. 

AND, IN OTHER NEWS . . .

Way to go, Marissa Mayer! I have given Yahoo CEO Marissa Mayer a lot of grief over her decision to eliminate telecommuting for employees while having a nursery built next door to her office. Well, it was announced this week that Ms. Mayer is doubling the amount of paid maternity leave for Yahoo moms from 8 weeks to 16 weeks. (Dads get 8 weeks of paid leave.) I still wish she would restore telecommuting (not that anyone asked me), but this is a really nice new benefit.

Model Lanisha Cole settles her sexual harassment lawsuit against The Price Is Right for an undisclosed amount. This came after the court threw out a $7.8 million verdict in her favor. Don't worry, TPIR lawsuit followers -- I'm sure there are plenty more to come!

Are male-dominated workplaces discouraging to mothers?

This is kind of creepy . . . but how else do you get a 15 percent raise any more? A real estate agency in New York offered pay increases of 15 percent to any employee who got a tattoo of the firm logo. The tattoo can go -- er -- anywhere, and 40 employees have said yes so far.

Oh, that Michael Bloomberg. Mayor Bloomberg strikes again. He initiated a bike-sharing program to encourage New Yorkers to become more fit. But no one weighing 260 lbs. or more is eligible to participate because of fear that they'll damage the bikes. Kind of defeats the purpose of a bike-share program designed to promote physical fitness, doesn't it?

¡Feliz Cinco de Mayo!*

*DISCLAIMER: Cinco de Mayo is Sunday, not today.

 

Image credits: Wikimedia Commons. Painting is Portrait of an Old Man by Niccolo Cassana (1659-1714).

Workplace Violence, Part 2: Crisis management tips for employers

Posted by Robin E. Shea on April 25, 2013

NOTE: I apologize for the delayed posting. Our blogging platform was having technical difficulties for much of the day on Friday, so I decided to wait until Monday to post this to make sure you saw it!

In my last post, in response to the bombings at the Boston Marathon, I talked about some ways that employers can prevent violence in the workplace and even avoid hiring the type of employee who might become violent. (Realizing, of course, that there are no guarantees and many laws limit what an employer can doGeorge_Jones.jpg from a predictive standpoint.)

This week, I'd like to talk about crisis management: what can an employer do to help defuse a dangerous situation, or pacify a fragile employee?

But first, some disclaimers

Based on comments I received last week, it appears that I need to make some disclaimers:

1. I realize that the Boston Marathon bombings and the other mass killings we've been experiencing are not the typical "workplace violence" scenario. However, many people have been killed, injured, or put at risk in their workplaces as a result of these incidents.

2. I realize that a ban on weapons in the workplace would have done absolutely nothing to prevent the horror of the Marathon bombings, Sandy Hook, or the shootings at the Century 16 Theater in Aurora, Colorado.

3. The majority of workplace violence scenarios do not involve terrorists or mass murders. They involve small-time personal disputes between one or two employees over very mundane grievances. You know -- adultery, mean supervisors, abusive spouses, grudges, drugs. The kind of stuff you encounter in country songs. (Speaking of which, RIP to the great George Jones, pictured above.) Employers can exercise some control over this type of scenario.

Calming troubled waters

The employee who is on the edge because of a "country music" situation can often be talked out of it. Here are some tips that can help:

  • Be predictable.
  • Listen. Be empathetic. Acknowledge the employee's feelings.
  • Refer to your own behavior, rather than coming across as accusing the fragile employee.
  • Give your employee the benefit of the doubt that he or she wants to change, but don't expect change to occur overnight.
  • Provide encoragement and positive feedback for even small changes in the right direction.
  • Project a sense of calm.
  • Don't make promises if you may not be able to keep them.
  • Accept criticism.
  • Break big problems into smaller units.
  • Ask the employee for suggestions.
  • Be aware of cultural differences.
  • Pay attention to language and tone.

It's also important to avoid doing anything that the employee will find humiliating. If you believe that you need to have law enforcement officers present, that's fine, but have them "lay low" in another room nearby. If the employee has to be escorted out, make sure it's done as quietly and unobtrusively as possible.

Also, don't forget about our old friend, the Family and Medical Leave Act. Allowing an "at-risk" employee to take a medical leave to escape a stressful situation and get help may be an ideal solution for everyone. If the employee can qualify for short-term disability benefits, all the better. (Completely off topic, but good to know: The Department of Labor plans to increase the number of FMLA on-site investigations. I guess anything more than "zero" would be an increase.)

And, of course, if the employee actually makes threats or behaves violently, you should terminate. But your first priority should be to get the employee off the premises safely.

Some may (and probably will) disagree with me, but I also think it's a good idea to take into account the validity of the employee's grievance. Suppose an employee has just found out that his wife is cheating on him with a co-worker. Doesn't he have a right to be outraged? Of course he does, and since he's "rationally" outraged, you may be able to calm him down. On the other hand, if the employee has -- just as an example -- a pathological obsession with a co-worker, there may be very little that you can do other than get him (or her) out of there and do what you can to make sure he (or she) doesn't come back.

Why I favor weapons bans in the workplace

One commenter from last week disagreed with my recommendation about having a no-weapons policy in the workplace. Here are four reasons why I think it's a good idea to ban weapons at work (and I'm not talking about Swiss Army knives or sporks -- just the "hard stuff"):

 

Sporks_-_20070804.jpgYou got a license to carry those sporks?


1. The Second Amendment doesn't apply to private employers any more than the First Amendment protects the right of employees in the private sector to say whatever they want, no matter how offensive. These amendments apply to state action only. Moreover, most concealed-carry laws allow employers and buildings to prohibit weapons. So a ban on weapons in the workplace would not normally infringe upon anyone's constitutional or legal rights.

2. Although a weapons ban won't prevent a mass killing by a terrorist or a James Holmes, it can help to keep "country music" disputes among co-workers from becoming deadly. These crimes are committed in the heat of the moment, and it's a lot easier to commit a crime in the heat of the moment when you're packing heat.

3. People at work get mad at each other all the time, and they can't easily get away from the sources of their distress -- otherwise, they'll be written up for attendance. Sometimes the boss is a jerk, or perceived that way. Sometimes employees are disciplined or fired, and they think the decision was really unfair. Sometimes you have those adultery or domestic violence situations I've been talking about. If any of these occur and a weapon is handy, it's likely you'll have trouble. On the other hand, if the weapon is back home, that might give the upset employee just enough time to calm down and realize what a terrible mistake he'd be making if he acted on his feelings.

4. The adage "When guns are outlawed, only outlaws will have guns," which (I think) has validity in the outside world, doesn't apply very much in the workplace, where the environment is more controlled and controllable.

5. All that having been said, there may be justifications for weapons for security personnel or other specially designated employees if needed to maintain order.

 

Image credits: Wikimedia Commons.

Workplace Violence: Some things an employer can do

Posted by Robin E. Shea on April 18, 2013

First responders in West, Texas*. Sales clerks in the stores near the finish line at the Boston Marathon. Staff of the District Attorney's office in Kaufman County, Texas. Teachers and administration at Sandy Hook Elementary. Ticket-takers and popcorn-scoopers at the Century 16 movie theater in Aurora, Colorado.

*Although the explosion at West Fertilizer Company appears to have been an industrial accident, as of this morning, law enforcement authorities have not ruled out the possibility of a crime or terrorist act.

 

Boston_Marathon_explosions_(8653921886).jpgPrayers for all those who were killed, injured, or are grieving as a result of these terrible acts.


Employers, do you have a workplace violence plan in place? Of course, it may not stop a terrorist, but it should prevent some incidents and save lives in the event of a crisis. Here is what it should contain at a minimum:

  1. A ban on fighting or other violent behavior of any kind, as well as threatening, "bullying," intimidating, or abusive behavior.
  2. A ban on weapons in the workplace.
  3. A way for employees to report suspicious activity, behavior, or concerns.
  4. The strongest substance abuse provisions that your state's laws will allow.
  5. An employee assistance program so that your employees with mental illness or personal problems can get help early. (In most jurisdictions, an EAP isn't mandatory, but it is a very good idea.)
  6. A preliminary plan to follow in the event of an incident (realizing that flexibility will be needed, depending on the circumstances), and a designated person or team who will coordinate evacuation efforts and contacts with law enforcement.

In addition, and with all due respect to the U.S. Equal Employment Opportunity Commission, which doesn't want employers to do much in the way of criminal background screening, DO screen job applicants or offerees for criminal convictions. You can still address each conviction on a case-by-case basis, but don't be afraid to reject a candidate with a history of violent crime.

 

Sandy_Hook_Memorial.PNGMemorial for the Sandy Hook victims.

 

Some time ago, I did a presentation with a psychiatrist on preventing workplace violence. We didn't talk about terrorism but did talk about more "garden-variety" types of violence in the workplace, such as "going postal" or domestic violence that carries over into the work environment.

According to the psychiatrist, an individual who may be prone to violence often has one or more of the following characteristics:

  • A personality disorder (narcissistic or antisocial)
  • Substance abuse
  • Personal or financial distress
  • Possibly, a physical or mental illness other than a personality disorder
  • A history of poor impulse control
  • A history of violence

Some warning signs that you and your employees can be trained to look for:

  • Complaints about unfair treatment that cannot be verified
  • Preoccupation with military and weapons
  • Outbursts of temper
  • Inability to tolerate criticism
  • Irrational or delusional thinking
  • Demanding or controlling demeanor

As any employer knows, there are federal and state laws making it more difficult to take effective steps in dealing with an employee who appears to be a threat. Probably the most significant limitation that applies to most employers is the Americans with Disabilities Act. Even so, a safe workplace is an "essential function of the job," and you have a right to take reasonable measures to ensure that your employees are safe.

 

Aurora.The_Century_16_theater_in_Aurora_CO_-_Shooting_location.jpgThe Century 16 Theater in Aurora, Colorado.


Here are some effective crisis prevention steps that should not create a problem under the ADA:

  • Take all threats seriously.
  • Quickly work to defuse workplace conflicts, including harassment or bullying situations. Recognize that sometimes the violent employee may have first been a victim of harassment or bullying.
  • Consider consultation with an occupational psychiatrist or psychologist. NOTE: By doing so, you may lose a defense to an ADA claim that you were unaware that the individual had a disability, but in a violence scenario, that's a relatively small sacrifice to make -- also, you'll still have other ADA defenses. The medical professional can (1) help you determine whether the threat is real, (2) help you address any conditions in the workplace that may be aggravating the situation, (3) help assess issues in the life of the individual making the threats, and (4) advise you on the most effective/least harmful way to involve law enforcement.
  • Consult with legal counsel as well, as needed, to avoid creating ADA or other legal issues that you might not be able to defend.

Next week, I'll post on some of the psychiatrist's recommendations on how to deal with an "at-risk" employee.

BREAKING: One of the suspects in the Boston Marathon shooting (the one in the black cap) was killed last night in a shootout with the police; the other is still at large. A campus police officer at Massachusetts Institute of Technology was also killed.

Image credits: Wikimedia Commons...

"Looks" discrimination can be a problem even if you're in retail, fashion, or marketing

Posted by Robin E. Shea on April 11, 2013

Are you in retail, fashion, or marketing, and getting ready to reject a job candidate because he or she doesn't have the "look" you want?

You might want to look before you leap. Or before you have to go to trial in front of a California jury against the Equal Employment Opportunity Commission.

The apparel chain Abercrombie & Fitch is learning that the hard way.Hijab girl.jpg

Abercrombie was sued a while ago by the EEOC, which claimed that a store in California refused to hire a teenager for a part-time job because she wore a hijab, the Islamic head scarf. This week, a federal court denied Abercrombie's motion for summary judgment, which means the case will go to trial. (The court also granted the EEOC's motion for partial summary judgment on some of Abercrombie's affirmative defenses.) The court found that there was a "genuine issue of material fact" that the store's reasons for rejecting the teen were a pretext for religious discrimination and that the store refused to accommodate her religion. That means a jury will have to decide these issues.

Abercrombie is very conscious of its "look." According to the evidence in the lawsuit, the store does minimal advertising but tries to achieve a consistent Abercrombie "preppy look" in its retail stores.

Why can't a Muslim look preppy, you ask? Surely hijabs are available in pink and green. Or madras.

 

Preppie_Hydrant.jpgIf even fire hydrants are available in "preppy," then why not hijabs?

 

Well, first, I have learned that my idea of "preppy" is way out of date. I went to Abercrombie's website and, after I finally found some models who were wearing clothes, I found the "look" -- well, I'm still not sure how this is "preppy," but I guess it is.

In addition to not wearing many clothes on their bodies, you will notice that the models don't wear anything on their heads. Hats, caps, lampshades, veils, hijabs are not part of the "look."

 

Hijabs.512px-Hijabs.jpgNot an Abercrombie store, apparently.


So, one fine day in March 2008, a regular Abercrombie teen customer named Halla Banafa applied for a job. She was wearing a turtleneck, a hijab, red nail polish, and a nose ring. According to the court, none of the above were consistent with the "look."

Ms. Banafa was interviewed by a manager-in-training who had been on the job only one month. (Bless her heart!) It was undisputed that the newbie asked Ms. Banafa whether she was Muslim and that the hijab was discussed. (The parties disputed some of the details of the discussion, but there is no question that the hijab and Islam came up in the interview.)

 

 

Rush.Alpha_Xi_Delta_sorority_rush.pngSorority rush at an American college campus. See any hijabs? Neither do I. Abercrombie is right - hijabs and "preppy" don't mix!


According to the manager-in-training, Ms. Banafa went on to say in her interview that she could not work Mondays through Thursdays, and she was not very impressive in her interview, even in addition to the fact that she was hardly ever available to work. Nonetheless, Ms. Banafa got a high enough score to be eligible for hire. But she was rejected even though she had received a "minimally qualified"* score, and the inexperienced manager never did actually check into whether the store could make an exception to the appearance code for a hijab worn for religious reasons.

*I'm exaggerating a bit here, but the EEOC's position -- as well as the position of some federal courts -- is essentially that once a person is "minimally qualified" for hire or promotion, that person can claim discrimination if not selected. So, employers, beware of rating people "minimally qualified" when they really are not. In this case, Ms. Banafa was not available to work on the days that Abercrombie supposedly wanted her, but the manager -- maybe in an attempt to be nice? -- rated her "qualified" anyway. If her unavailability on weekdays was truly a problem, she should have been rated "not qualified."

What really cooked Abercrombie's goose -- at the summary judgment stage, anyway -- was that three guys were hired who had lower interview scores than did Ms. Banafa. Also, the manager-in-training didn't claim that "availability" was a problem until her deposition in the lawsuit. During the whole time that the EEOC charge was pending, she contended that Ms. Banafa's lackluster interview was the only reason she was not selected.

And there was one more problem with the "availability" explanation: there were witnesses who testified that Abercrombie actually needed weekend people more than weekday people. Which sounds very plausible for a retail employer.

As I've said before, it is never a good idea to change your story. That's why you should be sure that whatever you submit to the EEOC -- even on a seemingly trivial charge -- is thorough and truthful. Yes, it will cost a little more money at the beginning. But compare that with the costs associated with this case, which has been dragging on for five years. You know what Ben Franklin (or whoever) says . . .

So the court decided that a jury should have to decide whether the manager's stated reasons for rejecting Ms. Banafa were a pretext for a discriminatory motive.

 

Goose.640px-Goose_head.jpgAbercrombie's goose (on the right), not long before it got cooked.


Who knows what was really going on? The jury will decide, assuming Abercrombie and the EEOC don't settle before trial. But one thing is certain: it is never a good idea to ask a job interviewee about her religion (or other legally protected characteristic) and call attention to her distinctive appearance -- and then reject her for hire. If you must ask those things in a job interview (and you really should not), you had better (a) be a Muslim yourself (as in, "You're a Muslim? Me, too - eeeee! Come to mosque with me this weekend, 'kay?"), or (b) be fully prepared to hire her no matter how she does in the rest of her interview because your failure to do so will, without question, be viewed as discrimination.

Oh, and did I mention that the court is also going to let the jury consider punitive damages? All this over a part-time, minimium wage job for a teenager!

POSTSCRIPT: Later in 2008, the same year that Ms. Banafa applied for the job, she got married and moved to South Carolina with her husband . . . and she has been happily employed at an Olive Garden ever since and no longer wears a hijab at all. Read the case -- I am not kidding! She's also chair of the Women's Tuesday Morning Bible Study at the Pee Dee River Baptist Church. (OK, I did make that part up, although there really is a Pee Dee River in South Carolina.)

And, in other news:

President Obama now has a full slate of nominees to the NLRB, including two well-regarded Republicans. Will the Noel Canning "quorum" issue soon be moot? Our own David Phippen has it all!

Rutgers debacle: Do the right thing, and damn the "process"? (I agree that "process" is often overemphasized, but you usually need some process to know the right thing to do.)

Better smile when you say, "You want fries with that?"

Heavy users of Facebook are more likely to be drunk than stoned. (That explains a lot, doesn't it?)

 

Image credits: Wikimedia Commons.