Employment & Labor Insider

Employment & Labor Insider

Legalese is not spoken here

Jan. 26 at the Faruqi sex harassment trial: NSFW!

Posted in Evidence, Harassment, Sexual Torts

NOTE: Thanks to an attorney reader, who suggested last week that I put my Faruqi trial updates in separate posts to make it easier for people to find them on Google and other search engines. I thought that was a good idea, so I’ll do that with my remaining posts. (Testimony is supposed to wrap up this week, and possibly today.) Prior coverage is available here and here.

Shocked Girl w TabloidPARENTAL ADVISORY: This is testimony in a sexual harassment case, so it’s necessarily NSFW (Not Suitable For Work. Unless you’re an employment lawyer or HR professional, in which case it’s AIADW (All In A Day’s Work).) Seriously, I’m going to use euphemisms wherever I can, but be warned that you still may find the following offensive. 

Juan Monteverde, the rainmaking partner who allegedly sexually harassed brand-new associate Alexandra Marchuk, testified yesterday about the 3 a.m. “encounter” after the firm holiday party in 2011. Mr. Monteverde denied having sexual intercourse with Ms. Marchuk, saying he’d had 8-10 drinks that night and was too drunk to rise to the occasion. Nonetheless, Ms. Marchuk would not take no for an answer, according to Mr. Monteverde, at one point undressing and arraying herself in the nude on his office floor. Mr. Monteverde testified that Ms. Marchuk eventually did perform oral sex on him. He also admitted to making inappropriate jokes at work about a legal adversary named “B.J. Warehouse.” (Do I really have to tell you what about?)

Ms. Marchuk’s attorneys are seeking an “adverse inference” instruction about the carpet in Mr. Monteverde’s office. As I’ve previously reported, there was allegedly blood on his carpet as a result of the 3 a.m. “encounter.” Mr. Monteverde asked his office manager to clean the carpet the next day, and when her efforts to scrub it out failed, they called a professional who used a power washer. In 2013, Mr. Monteverde’s carpet was replaced completely, but no one else’s carpet was. Ms. Marchuk’s attorneys say that the carpet replacement, done after the lawsuit had been filed, constitutes spoliation of evidence.

Attorneys for the law firm say that Ms. Marchuk is the one who suggested on the night of the “encounter” that Mr. Monteverde “spill” coffee over the stain to cover it up. They also say that Ms. Marchuk was the one who said that the stain was blood. (I’m still not sure why Ms. Marchuk would have thought the carpet was stained with blood if you believe Mr. Monteverde’s story, but anyway.) The office manager testified last week that she thought it was a coffee stain based on what Mr. Monteverde had told her the following day. She also testified that the carpet was replaced in 2013 only because Mr. Monteverde scooted his chair across it too much, wearing it out.

The judge has not made a ruling on the spoliation issue yet.

While you’re eating this dessert, I will slip in your vegetables: The spoliation issue in this case is a good reminder that spoliation does not apply only to electronic evidence like emails, or even documents, but also to “brick and mortar” evidence, like blood-stained carpets.

Thanks as always to Law360 (paid subscription required) for providing such excellent daily coverage of this trial.

Back tomorrow!

Image credit: Flickr, Creative Commons license, by E M.

Another employer pays for “Sorry, I can’t go”

Posted in Americans with Disabilities Act, Discrimination, Drug Testing, Transportation Industry

Last October, I posted about a consent decree entered into between Wal-Mart and the Equal Employment Opportunity Commission, in which Wal-Mart agreed to pay $72,500 to candidate for a store job in Maryland whose offer was withdrawn because she couldn’t undergo a urine test for drugs.

The candidate had end-stage renal disease.Kidney

Now, Kmart has been hit, too, in a case involving almost identical facts at one of its stores in Maryland. Kmart has agreed to pay $102,000 and modify its drug testing policy to specifically provide for reasonable accommodations.

According to a lawsuit filed by the EEOC, Lorenzo Cook had kidney failure and could not produce a urine specimen for testing because of the disease and because he undergoes dialysis. He offered to be tested by some other method, including hair or blood. Two weeks later, Kmart told him the testing method had to be urinalysis and withdrew the job offer.

After Mr. Cook filed an EEOC charge, the EEOC filed suit on his behalf, alleging that Kmart violated the Americans with Disabilities Act by failing to engage in the “interactive process” and summarily denying his request for accommodation. The consent decree resolves the lawsuit.

Under the Consent Decree, Kmart agrees to post a revised policy on the company’s electronic recruiting and hiring system, spell out the company’s obligation to provide reasonable accommodations to employees or applicants in its alcohol and drug testing program, the accommodation process, and the person to whom a request should be directed. Kmart will also post a notice saying that it will comply with the ADA.

Common Sense Counsel: The ADA reasonable accommodation obligation applies not only to employment but also to the recruiting, application, and hiring process. If you test for drugs or alcohol, you should make sure that your policy provides for reasonable accommodation and, more importantly, that the people who make job offers and who administer the testing are familiar with ADA reasonable accommodation obligations. (If you are governed by another federal regulation, like the Department of Transportation regulations, you must comply with the latter, but you still have to make reasonable accommodations to the extent that the accommodations don’t violate your other obligations.)

Image credit: Flickr, Creative Commons license, by Hey Paul Studios.

Two big sexual harassment cases: where the employers went wrong

Posted in Harassment, Sexual Torts, Transportation Industry

As an employer, what can you do to protect yourself when one employee claims severe sexual harassment and the other party denies it or claims it was all consensual?

The Marchuk v. Faruqi & Faruqi trial (daily updates here) is far from over, but that case, as well as one involving CRST Van Expedited in California, provide some valuable opportunities for us to learn from other employers’ mistakes.

Mistakes Demotivational Poster.flickr.DuncanHullCC

(Click to enlarge) Don’t be a cautionary tale for others!

THE CASES IN A NUTSHELL

First, a quick recap of what each of these cases is about:

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BREAKING: Supreme Court will review states’ right to ban same-sex marriage

Posted in Same-sex marriage

The Supreme Court decided today to review the right of states to ban same-sex marriage. The Court granted certiorari in four cases, all from the Sixth Circuit (Kentucky, Michigan, Ohio, and Tennessee), whose U.S. Court of Appeals had upheld state bans. Here are the issues on which the Court will hear argument:

1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?

2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?

More information is available on the excellent SCOTUSblog. Oral argument is expected in the spring, and a decision sometime in June.

You’ve gotta be kidding. THIS is retaliation?

Posted in Retaliation

Guess what? You know those SEC disclosures about pending litigation that publicly held companies are required by law to make? Well, if an employer says too much, it may be “retaliating” against the litigants.

GaryColemanShavarRoss.flickr.ShavarRossCC

“What you talkin’ ’bout?”

I am not making this up. International Monetary Systems, Ltd., is facing a jury trial on a retaliation claim made by a former employee. The company is going to trial because it listed the plaintiff by name on the disclosures that it was required to file by the Securities and Exchange Commission. The IMS disclosures named the plaintiff (then a charging party), and said that her EEOC charge was “meritless” and that the company “would vigorously defend.”

Plaintiff Celia Greengrass, now a real estate agent in Albuquerque, worked as an account executive for IMS in 2007 and made an internal complaint about alleged harassment by a manager. Not long after this, she quit, and she filed a charge with the Equal Employment Opportunity Commission alleging sex and national origin discrimination, and retaliation.

In March 2008, about two months after Ms. Greengrass filed her EEOC charge, the company was due to make its annual SEC filings, which require disclosure of “any material legal proceedings, including the principal parties, facts giving rise to the proceeding, and the relief sought.” (Emphasis is mine.) The chief financial officer consulted with an outside firm about whether to disclose Ms. Greengrass’s charge. Details of the consultation are not included in the court’s opinion, but the company did not disclose the charge at all, presumably because it was not thought at that time to be “material.” The company’s quarterly SEC disclosures filed for periods ending March 31 and June 30, 2008, disclosed pending matters but did not identify any parties.

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Two thoughts on the Faruqi sexual harassment trial

Posted in Harassment

NOTE TO READERS: I am updating this post daily with the previous day’s trial testimony. As of January 21, I have also decided to reorganize the post to include the most recent testimony before the jump. Prior days’ testimony will be below the jump, as well as my “two cents,” which I posted last week as the trial began.

I hope that everyone is following the Marchuk v. Faruqi & Faruqi sexual harassment trial that is taking place as we speak in Manhattan. If you haven’t been, then now is the time to start!

Two Cents.flickr.YatoobinCC

The most un-sexy photo I was able to include
with this blog post.

Plaintiff Alexandra Marchuk alleges that she and others were sexually harassed by law partner Juan Monteverde while she was a first-year associate. She says that the firm didn’t do anything about Mr. Monteverde’s behavior because he was a “rainmaker” who brought a lot of business into the firm.

UPDATE (1/23/15): Several current and former firm employees testified yesterday that Ms. Marchuk seemed to be enamored of Mr. Monteverde and “followed him around like a lost puppy.” One witness, who was walking behind Ms. Marchuk and Mr. Monteverde after the 2011 holiday party (the night of the alleged sexual assault), said that they were kissing and holding hands. The office manager said that they sat together at the party “like magnet and steel.” A paralegal said that she and co-workers gossiped at the party about how Ms. Marchuk was “shadowing” Mr. Monteverde and about their seemingly close relationship in general. Cross-examination focused on the witnesses’ bias and the fact that they did not know what was going on with Mr. Monteverde and Ms. Marchuk behind the scenes.

The office manager also testified that Mr. Monteverde’s carpet was replaced because he was “intense” and wore it out faster than the other attorneys by rolling on it in his desk chair — not because of blood stains from the sexual encounter after the holiday party, as alleged by Ms. Marchuk.

The judge warned the parties that he wanted them to wrap up the testimony by next Tuesday (January 27). Mr. Monteverde is expected to testify on Monday. The lawyers will be arguing motions today (no testimony), and closing arguments are expected the first week in February.

My regular blog post for today discusses the employer mistakes that might have contributed to this litigation trauma.

Thanks as always to Law360 (paid subscription required) for the trial information. Read on for previous days’ updates!

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What do employees want? A warm and fuzzy post

Posted in Corporate Culture, Discrimination, Work-Life Balance

Do nice guys really finish first?

Yesterday morning, I tweeted a thought-provoking article by Travis Bradberry in Forbes on “Why Your Boss Lacks Emotional Intelligence.” According to the article (and no big surprise), a study found that people in higher management and executive level positions have less emotional intelligence than lower-level managers because in those upper-level positions, “warm and fuzzy” isn’t what is being sought.

Kitties (4)

You want warm and fuzzy? I’ll give you warm and fuzzy!
Take that!

The managers with the highest EQs were the middle managers and frontline supervisors, who were often promoted precisely because they were good with people. Even “individual contributors” (who I always thought were in their positions because they were talented but lacked people skills) had significantly better EQs than the executives.

(I couldn’t tell whether HR people were included in the study. They weren’t listed as a separate category, but they may have been combined with the other categories.)

Come on over to the comments section of my post from a few weeks ago, “Employment law advice you should never follow,” where we are having a debate on whether employers should fight as many unemployment claims as they can. What do you think? Should an employer fight all unemployment claims unless there’s a layoff or RIF? Am I just a softy? 

But even though the honchos had lower EQs, the article says, the few who did have high EQs tended to be more successful* in their jobs. So, I guess, if you have a high EQ, it may be harder for you to climb the ladder, but if you get there, you should do great. Very interesting!

*The article wasn’t clear on what “more successful” meant or how it was measured. And the author is an EQ consultant, for whatever that’s worth.

All of which got me thinking, along with this debate we’ve been having about whether an employer should aggressively fight all unemployment claims, about the importance of employees’ feelings. Years ago, I spoke at a conference with an EEOC director, who said that most charges had no true legal merit but that many were filed because the employees felt they weren’t treated right by their employers. I’ve heard the same thing from a number of plaintiffs’ attorneys.

Employee surveys back up the importance of treating employees with dignity. Surveys show that, at least past a certain minimal level, money is not the main reason that people love or hate their jobs. Oh, sure, nobody is going to say no to money, but what really keeps people coming to work every day and not wanting to quit, or to file EEOC charges, or to sue, or to sabotage the employer’s computer system, or to bad-mouth the employer on glassdoor.com, is less tangible (and more affordable).

Kim Jong Un

“It wasn’t me! It was those disgruntled ex-IT people!”

Here are a few things that employees say they appreciate:

Fairness. No favoritism. No selective enforcement. No discrimination. No retaliation. Employers can be tough and have high standards (within reason), as long as the same standards apply to everybody. Minor variations to fit the individual situation are fine, and will even be appreciated.

Babies

Cootchie-cootchie-coo!

Communication. Let them know what’s going on in the company, and give them the opportunity to let you know what’s going on with them. Make sure they feel that they can share concerns and get an answer, even though the answer may sometimes have to be “no.” (And when the answer is “no,” be sure you explain why. Respectfully.)

Flexibility. This will vary depending on the nature of the job and your business, but to the extent that you can, be flexible and accommodating to child care, school schedules, illnesses, other family needs, and personal interests.

Being seen as human beings. If they’re having personal problems, do you care? Do you even know? If you’re freaking out about how the work will get done while your right-hand man takes two weeks off to get his sick mother adjusted to her new nursing home, try to focus on what he and his mom must be going through. (You can scream about the backlog of work when you get home at night.)

Being appreciated and being given the tools they need to do their jobs well. This demonstrates respect and shows that you consider your employees and their work important.

Job security and loyalty of company to employees. Sad to say, job security and employer loyalty to employees are disappearing. Before the economy took a dive in 2008, employee loyalty to employers had also declined, especially among younger people. (I perceive that employees are more “loyal” since 2008, if only because they have fewer options.) But do the best you can, and it may help you save some good people if the economy ever picks up.

Puppy

Awwwwww . . .

OK, and then money and opportunities for advancement. Team-building activities — staff retreats, Cinco de Mayo day, jeans day, casual Fridays– didn’t even make the list.

So be the warmest and fuzziest employer you can be, given the nature and demands of your business, the size of your work force, and your environment. Treat your employees as human beings rather than as “means to an end.” Be fair and reasonably competitive with pay, but don’t worry if you can’t afford to pay top rates. If you take care of these intangibles, you will probably have the best work force you could hope for and will minimize your risk of turnover and litigation.

Old Irish Blessing: May all your employment lawsuits be frivolous ones.    :-)

. . . AND ALSO OF INTEREST . . .

Do! Not! Miss! ”15 in ’15: Employment and labor resolutions for the new year” by David Phippen. Next December, we’ll see how many of these you can cross off your list.

Image credits: All from flickr, Creative Commons license. Adorable kitties by Michelle Tribe, adorable dictator by Zennie Abraham, adorable babies by Mulan, adorable puppy by Jonathan Kriz. 

15 for ’15: Employment and labor resolutions for the new year

Posted in Affirmative Action, Affordable Care Act, Alternative Dispute Resolution, Americans with Disabilities Act, Background Checks, Discrimination, Drug Testing, Equal Pay, ERISA, Family and Medical Leave Act, Harassment, Independent Contractor, Labor Relations, Lactation, Pregnancy, Protected Concerted Activity, Safety, Social media, Wage-Hour

By David Phippen of our Metro D.C. Office.

While the year is still young, here are 15 New Year’s resolutions that employers may want to make:

1. Make sure your “independent contractors” are really independent contractors. ”Independent contractors” are under scrutiny by the Internal Revenue Service, the U.S. Department of Labor, the National Labor Relations Board, state and local agencies, plaintiffs’ lawyers, and union organizers. A misclassification can cost you back taxes, back pay (including overtime), and back benefits, as well as penalties and interest. 

2. Review your email policies. The NLRB recently found that employees generally have a right to use employer email systems during non-working time in support of union organizing and concerted activity. The Board’s decision means that many employer email use policies, as currently drafted, would probably be found to violate the National Labor Relations Act if an unfair labor practice charge were filed or a union tried to organize employees and argued that the employer’s email policy interfered with the organizing efforts. In light of the new “quickie election” rule that the NLRB issued last month, both union and non-union employers would be well advised to review their email policies and revise as needed. (The “quickie election” rule is scheduled to take effect on April 14, but the U.S. Chamber of Commerce and other employer groups, including the Society for Human Resources Management, filed suit on Monday seeking to block the rule.)

It’s not too late to register for our webinar on the NLRB’s new rules on “quickie elections” and employee email use. The webinar, featuring labor attorneys Tim Davis, Jonathan Martin, and Dan Murphy, is from noon to 1 p.m. Eastern tomorrow (January 8). Be there, or be square! 

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