Workplace (aka "fake") spouses -- a lot of hype, but here's how to avoid problems.

Posted by Robin E. Shea on February 23, 2011

This February ("Valentine's Month"), there was a lot in the news about "workplace spouses." Last week, I was interviewed about this by Denis and Shelli of WSBT radio in South Bend, Indiana.

My own opinion is that the "workplace spouse" phenomenon is an overhyped way to put a new spin on the very old problem of sexual attraction in the workplace. (Sexual harassment and workplace dating are so '90's.)

workplace spouses.jpgWhat is a workplace spouse? The news accounts define it as a closer-than-normal relationship between two co-workers. But for the term to have any real meaning, it has to apply to co-workers who at least have the possibility of becoming sexually attracted to each other. For example, two heterosexual girlfriends who spend a lot of time together and talk about everything may be BFFs, but they are never going to be faux "spouses."

I have long held the view that extramarital affairs at work are the number one cause of sexual harassment lawsuits against men. They have an affair, she wants to get married, he chickens out, and she's angry and wants revenge. I'm not saying that every sexual harassment complaint fits this scenario (by no means!), but just about every lawsuit I've been involved in did. Because workplace "spouse" relationships can lead to extramarital affairs, folks need to be very careful not to let these relationships escalate. 

How can you have a close friendship with a co-worker without letting it destroy your marriage or your career? Here are a few tips:

1-Create a dividing line that you won't cross. Be friends if you must, but don't talk to your fake spouse about things like your sex life or your marital problems ("My wife doesn't understand me"). Your fake spouse shouldn't know anything about you that your real spouse doesn't know (unless you're telling your fake spouse about the awesome gift you purchased for your real spouse for a birthday or anniversary). Nor should you violate your real spouse's privacy with your fake spouse.

2-Don't idealize your fake spouse. At work, we are all clean, groomed, fragrant, dressed nicely, and well-behaved. (Most of us, anyway.) We may or may not be so at home, and none of us are able to be that way all the time. Your fake spouse probably looks just as bad first thing in the morning as your real spouse does, also has "issues," and burps and watches bad TV shows. Remind yourself of that as often as needed.

3-If you're single and your fake spouse is married, respect the marriage. If you sense that a "crush" is developing (either from your end or his/hers), start distancing: talk about the real spouse and kids frequently (in a positive way), refer to your own boyfriend/girlfriend, etc., etc. If necessary, limit your contact with your workplace "spouse."

4-Be sensitive to your co-workers' feelings. One big risk involved in "workplace spouse" relationships is the perception of co-workers that you are being cliquish. If one party to the fake spouse relationship is a supervisor, even worse -- there may be perceptions of favoritism or discrimination. Even if your fake spouse is your "favorite," include your co-workers in conversations and activities as much as you can. The presence of co-workers will also help you with Tips 1 and 3.

5-Be sensitive to your real spouse's feelings. Just about every article on workplace spousehood mentions that real spouses are uncomfortable with these relationships. Why wouldn't they be? If your real spouse feels jealous or threatened, BACK OFF! Your real spouse ought to come first. Even though some articles suggest that you and your workplace "spouse" and your real spouses can get together as a foursome, even that is risky if there is already a strong attraction between you and the workplace "spouse."

NEWSWORTHY NUGGETS . . .

Here are some legal developments from the past week. 

Defense of Marriage Act no longer defensible, Obama Administration says. Attorney General Eric Holder has said that the Administration no longer intends to defend challenges by legally married same-sex couples against the Defense of Marriage Act, which interprets "marriage" for purposes of federal law as being between one man and one woman. The Administration, which contends that the DOMA violates the equal protection clause of the Fifth Amendment to the U.S. Constitution, does intend to continue complying with the law, however. The new position (and future evolutions) should be closely watched by employers because it will have an impact on the definition of "spouse" for purposes of the Family and Medical Leave Act and the Genetic Information Non-Discrimination Act, as well as many other laws.

In a related development, the Wall Street Journal Law Blog reported yesterday that the State of Hawaii has legalized same-sex civil unions.

Mea culpa. I closed last week's post with a snide remark about Madison, Wisconsin, school teachers calling in sick so that they could protest Governor Scott Walker's budget initiatives. I felt (and, honestly, still feel) that the teachers should be willing to make some concessions to help keep the state from going under. But this week, I saw that some attorneys are now charging an obscene $1,000 an hour for their services, so as an attorney (though not a $1,000-an-hour one), I feel bad for picking on the teachers.

Nagging employee about return to work from FMLA leave is not cool, court says. A federal judge in Arkansas recently denied summary judgment to an employer on an "interference" claim under the Family and Medical Leave Act. The employee was out of work for back surgery (apparently legitimate), but her supervisor called her once a week to ask when she was going to return. At one point, the employee allegedly asked whether her job was at risk, and the supervisor allegedly responded, "You need to come back as soon as you can." Worried about her job, the employee returned to work a week early but was terminated a short time later for suspected theft. (The court found in the employer's favor on the termination, however, saying that there was plenty of evidence to support the employer's good-faith belief that the employee had stolen or tried to steal from a co-worker.) Hat tip to ABA Journal Weekly Newsletter.

Bad PR. Monique da Silva Moore has filed a putative class action against international public relations firm Publicis Groupe and its U.S. public relations affiliate, MSL Group, for systemic sex discrimination. Ms. Moore's suit alleges that the work force is approximately 70 percent female but that only 15 percent of its leadership positions are held by women. The suit also alleges that women are paid less than similarly situated men. The suit has just been filed, so the defendants have not had a chance to respond yet.

Doctor's note for all sick calls? Here are 5 reasons I wouldn't.

Posted by Robin E. Shea on February 18, 2011

One common employer practice that I have never liked is requiring employees who call in sick to bring in a doctor's note. I'm not talking about extended or recurring absences that would be covered by the Family and Medical Leave Act, or time off that would be covered under a short-term or long-term disability policy, or requests for reasonable accommodation under the Americans with Disabilities Act.

Sick girl.jpgI'm talking about garden-variety, short-term absences for things like colds, sore throats, tummy bugs, or the flu.

And I am feeling so validated right now because I see that Cynical Girl and most of her commenters (presumably Human Resources people) agree with me.

Here are five reasons why I think it's not a good idea:

1-It screams to the employee "I don't trust you." Sure, there are some employees you don't trust, but why treat them all like abusers? Even employees who use a lot of sick time or paid time off may have legitimate reasons -- they may have genuine chronic health problems, or they may have young kids who get sick (my sons are grown now, but I certainly remember the days when our family was a veritable tag team of illness), or they may have been incredibly unlucky, or they may be expectant mothers with morning sickness. 

2-It is a hassle to the employee and may actually retard recovery. I may legitimately have a miserable cold or sore throat, and I may get over it in 24 hours if I can sleep it off. But if I have to waste half of my sick day driving my sorry body over to the nearest walk-in clinic, waiting 2-3 hours with other sick, contagious people, to see a doctor who prescribes (surprise!) bed rest, and driving my sorry body back home, I may not get over it quite so quickly.

3-It is a hassle to our poor, overburdened health care providers. It's bad enough that these poor souls have to deal with the FMLA and HIPAA privacy, and now try to make some sense out of the "safe harbor" language under the Genetic Information Non-Discrimination Act. Do we really need to add to their grief by requiring them to see patients who are sick with illnesses that nothing can be done about anyway?

4-It is a hassle to HR and supervisors. Even though having employees out sick is a hassle, it is also an administrative hassle to parse every single request for a sick day. 

5-It encourages sick, infectious people to come to work and make everyone else sick. 'Nuff said.

On the other hand, employers may want to request doctor's notes when there is good reason to be suspicious of a request for sick time. For example, if your employee is a teacher in the Madison, Wisconsin, public school system, you might want to ask for a doctor's note.

BOO! NLRB "Facebook Firing" case settles

Posted by Robin E. Shea on February 09, 2011

sad face.jpgI am disappointed that the NLRB "Facebook Firing" case settled, even though I certainly understand why both sides wanted to end it.

In November, the National Labor Relations Board issued a complaint against American Medical Response of Connecticut, alleging that the company committed an unfair labor practice by firing an emergency medical technician who had posted some unflattering words about her supervisor on Facebook. Among other things, she referred to him as an [expletive deleted] and the code for a psychiatric patient. (The company said that the EMT was terminated because of complaints that she was rude to patients, not because of her Facebook posting.)

The NLRB said that the employer's social media policy was overly broad because it prohibited employees from disparaging the company or supervisors, and forbade depictions of the company without prior permission.

The case was scheduled to go to hearing on January 25, but the Bureau of National Affairs reported that the parties settled the day before the hearing and that the Board approved the settlement this week. Among other things, the company has agreed to amend its social media policy. BNA reports that the EMT will receive a financial settlement (amount not specified) and a neutral employment reference. In exchange, she promises not to seek reemployment with AMR and has agreed not to disparage the company.

The Union was the International Brotherhood of Teamsters, which, predictably, is claiming a flawless victory.

The company's reasons for wanting to settle are fairly obvious -- unfair labor practices cases can drag on for years while they make their way through a hearing before an Administrative Law Judge, followed by Board proceedings, followed by seeking enforcement in a U.S. Court of Appeals . . . if one can escape years of litigation and attorneys' fees by posting a notice and amending a social media policy . . . and even tossing a few thou to the EMT, who wouldn't do so?

But, in my opinion, the Teamsters had good reason to want to end it, too. The great weight of public opinion (at least, as observed on the internet) was not in the EMT's favor. Judging from comments on web postings about this case, most observers thought it was self-evident that bad-mouthing one's boss on Facebook is what one might call a "career-limiting gesture." Plus, as already stated, the company said the EMT had patient-relations issues. Even if the Teamsters prevailed in the early stages, all this makes it reasonably possible that a Court of Appeals would refuse to enforce the decision.

Selfishly, I am sorry that guidance will not be forthcoming about protected concerted activity and social media. But I'm sure it won't be long before another foolhardy courageous employee gets in trouble for the same thing, and maybe then we'll get to see what happens.   

Equal-opportunity harassers, dirty old men, retaliation, and the "gender gap" on Wikipedia: pressing legal issues of the day

Posted by Robin E. Shea on February 04, 2011

Latest dispatches from the employment law front:

If you're going to be an SOB, make sure you're an SOB to everybody. A federal district court in Kentucky granted summary judgment to the employer in a sexual harassment case. The female plaintiffs alleged that a charlatan "turnaround specialist" hired by their CEO was not "motivated by sexual desire" butWoman reading newspaper screaming.jpg was simply abusive and mean. The court found in favor of the employer based on the "equal opportunity harasser" concept: the evidence clearly showed that the "specialist" was abusive and mean to everybody, not just women. Among other things, he had "invited" the male production manager to step outside to the parking lot, presumably to fight. He had also cursed at another male employee, threatened him, and thrown a piece of paper in his face.

The "equal-opportunity harasser" concept is well established in the law because the essence of "discrimination" is to treat one group differently from others. If the plaintiffs could have shown that this consultant was a bully only to women, then they would have had a claim. But since he treated both sexes equally badly, he could not be found to have discriminated based on sex. For the same reason, the women's retaliation claims under Title VII of the Civil Rights Act of 1964 also failed -- because their complaints about the consultant were not complaints of sex discrimination/harassment, they had not engaged in activity protected by Title VII.

That said, consultants and managers who behave this way are toxic and should be dealt with promptly. In this case, the employees complained to the CEO, who removed the consultant from "service." (The plaintiffs sued after they were terminated for other reasons several months later.) Even if the employees don't have a valid discrimination claim, the morale issues caused by a bad boss are obvious. And employees who feel that they have not been treated with respect and dignity will be much more likely to take legal action against the company.

Dirty old men need love, too . . . or do they? A perennial problem for health care facilities, and especially nursing homes, is the patient who hasn't had the benefit of modern EEO, diversity, or harassment training, and doesn't understand that he or she cannot use racial epithets or grope the staff. Often, these patients are so elderly that they grew up in a completely different era and may not be familiar with modern standards of behavior. Or they may have diminished capacity because of senile dementia or Alzheimer's.

In any event, they can't be thrown out onto the street as easily as a 35-year-old able-bodied employee who is a jerk at work. But what does the employer do when the patient mistreats, abuses, or even molests the staff?

According to the U.S. Court of Appeals for the Tenth Circuit (Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming), the employer has to do more than just give the patient a good talking to. In Aguiar v. Bartlesville Care Center, the defendant nursing home had a resident who in his former life had a history of "domestic abuse, assault and battery, and violation of a protective order." Nonetheless, he was allowed to move freely in the nursing home and subjected the plaintiff, an aide, to unwanted kissing, groping, grabbing, and threatening behavior when she refused his advances.

The Center talked to him about his behavior, and documented the talks, and tried to assign another caregiver to give him his medications, but when another caregiver gave him medication, he would become hostile and go in search of the plaintiff.

After one such incident, in which the resident pursued the plaintiff, got into a shouting/cursing match with her, and called her a "b*tch," she retorted that he was a "pr**k." The next day, when questioned, she admitted to what she had said and was terminated. The person who had terminated her did not know the history of the resident's behavior or of the plaintiff's prior complaints, and was terminating her only because she had admitted to using abusive language with a patient.

The District Court found that the nursing home had done enough to try to end the harassment of the plaintiff and therefore granted summary judgment to the nursing home on the plaintiff's hostile work environment and negligent supervision claims. But the Tenth Circuit reversed, saying that a jury should decide whether the nursing home knew or should have known about the resident's harassing behavior and whether its response was adequate. Among other things, the nursing home said that it offered the plaintiff a chance to move to another area of the nursing home but that she had declined the offer. The plaintiff denied that such an offer had ever been made.

On the other hand, the Tenth Circuit affirmed dismissal of the retaliation claim, finding that there was no evidence that the manager who fired the plaintiff knew anything about the plaintiff's history with this resident.

Why bother? Prompt action by HR does no good, apparently. The U.S. Court of Appeals for the Eighth Circuit (Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota) reversed a grant of summary judgment to an employer where the plaintiff alleged that her plant manager took her written complaint of harassment, wadded it up saying, "This is bulls**t," tossed it in the trash, and told her to leave and that he never wanted to see her again. Seems like an open-and-shut case for the plaintiff, no? But within two days of this alleged incident, the corporate HR manager told the plaintiff that she was not fired, and offered her the job back. The plaintiff refused to return and was treated as a voluntary quit. For this reason, the District Court granted the employer's motion for summary judgment, but on appeal the Eighth Circuit said that even a two-day termination might discourage a reasonable employee from engaging in the protected activity, so the plaintiff's claims will go to trial.

I just hope that the prompt action by this diligent HR manager will have some effect on the company's damages, if not its liability.

"Gender gap" on Wikipedia? Many of you have probably read about the recent angst of the Wikipedia Foundation about the fact that only about 15 percent of its postings are by females. The Foundation intends to take steps to increase the "female" presence on Wikipedia . . . not clear how that's gonna happen. Like the inflated "gender gap" in pay, which I submit is 99%* a result of voluntary work-family-lifestyle choices made by women, my reaction is . . . who cares? As far as I know, Wikipedia is doing nothing to prevent women from posting as often and as long-windedly as they want. If it turns out that women are statistically not as interested in pontificating on arcane subjects as are men, then let the guys do it. We have enough real problems to worry about.

*This is a statistic that I made up and is completely unscientific.