Strippers and Sexual Harassment

Can sexual harassment occur in a strip club? You bet it can and it does. Many of the young women take jobs in strip clubs, as servers or strippers, naively thinking that it can provide them with an income to pay the bills or their college tuition. While their main concern is the customer, unfortunately, many of these young women find themselves sexually assaulted by coworkers, managers and owners. They don't come forward because they believe that there is no right of action or that no one will believe them. Compounding the problem is that many of them live a transient lifestyle or have had past criminal problems.

To be honest, I never gave the subject much thought. Why? Well, no one ever approached me to handle a case against a strip club. This weekend, I saw an article in the New York Daily News about a Manhattan employment lawyer who routinely sues strip clubs for sexually harassing their women employees. (Click here to read the article.) The clubs he sues are not the stereotypical grungy dive, these are the clubs that bill themselves as upscale "gentlemen's clubs". (Not that it matters, sex harassment is sex harassment whether it occurs in a dive or the corporate headquarters of a Fortune 500 company) Regardless of your feelings about strip clubs (personally I find them objectionable), the issue is whether these women deserve to be protected from sexual assault and harassment. That is one proposition on which we should all be in agreement.

These cretins that perpetrate this conduct do so because they know they can get away with it. After all who is going to believe a stripper? Lots of people. Especially if you have other coworkers come forward with corroborative information. It's clear that this is one industry that has no desire to adhere to the law and it is only through the pursuit of litigation against entities that meaningful change can occur in the workplace.

Later,

Rod

Sometimes Good Things Come Out of Train Wrecks

When I grew up there was a different perception of employment relationship that we have seen in the past twenty years. It was an unwritten rule of work that if you, as an employee, gave your all to your employer, they do would do the right thing, even though they were not legally obligated to do so. That changed in the eighties, when corporate bean counters began to assume roles of importance in organizations. Profits became the focus at the expense of human capital. It did not take time for employees to recognize that their loyalty was not rewarded by management. As a result, today we see employees changing jobs as soon as a better opportunity presents itself. Their rationale, "My employer is only concerned with profit, so why should I stick it out with a company that will probably never reward my loyalty?" It is a sad but true statement.

Enter the current economic downturn (a/k/a train wreck). All the rules have gone out of the window. Employers that have been successful in weathering this crisis have come to realize that their ability to adapt to the new economic climate is largely dependent on attracting and retaining quality employees. Employees have also become less eager to jump ship. This is the classic case of employers and employees allowing crisis to become the catalyst for change.

The employers that are succeeding, in spite of the economy, understand that organizational competitiveness not only depends on employees mastering increasingly complex tasks, but that they must place greater value on their human capital. These organizations see that positive change occurs when they take steps to assist their employees become better people. To do so, they have to discard the old paradigm that focused on the bottom line and create a positive environment and an environment of trust. No matter how hard we work as employment lawyers, it is difficult, if not impossible to assist an employer create meaningful organizational change when there is a fundamental lack of trust between management and the people they manage or where employees act like whipped puppies.

I have been accused on being "old school" and maybe that's true, but I believe that most employees want to stay with a company long term and want to enjoy their job. They have all heard about grandpa that worked for a company for 45 years before he retired. They want the same thing. The challenge for you, as a leader, is to recognize this and begin to work with your employees to create an workplace that rewards creativity, longevity of service, and integrity. As I write this I am reminded of a recent conversation I had with a friend. He works for a large company that for the first time in their history experienced a financial loss. When the news of this spread through the company, there was understandable concern. The CEO decided to be proactive and arranged to meet with small groups of employees throughout the company until he met with his entire workforce. In these meetings, he listened to the employees while they shared their concerns, offered suggestions and answered their questions. According to my friend, following these meetings, this company is more focused than it ever has been, morale is up, and there is a greater degree of trust that management has their back. No amount of policies, procedures or training courses can replicate what this CEO did in the course of several weeks.

When was the last time you did an honest review of your company and asked the hard questions such as do people like working here and are we, as a company, achieving our potential? It is not about changing the organization as much as it is about people within your company changing and, in turn, becoming a source of organizational change. As I heard one individual put it, "Most organizations don't aim too high and miss, they aim too low and hit."

Maybe it's time for a change.

Later,

Rod

Termination and at will employment

Most employees are considered to be "at will" employees. What that means in plain English is that the employee is free to leave at any time, for any reason, and with or without notice. Yes, the days of involuntary servitude are over. An employee is free to leave at any time, for any reason, without providing you the courtesy of notice. The notion of "at will" employment also envisions that you, as the employer, can terminate an employee at any time, for any reason, with or without notice, and without consideration for length of service. While the principle of " at will" employment seems rather straightforward, the execution is not. This is primarily the result of advice given by members of local taverns and diners, none of whom have a license to practice law. After all, why get a license to practice law when you can wax poetic about your uncle Cecil’s legal problems and how he is the bastion of all knowledge on issues of employment law? The difference between the well-meaning friends at the local diner or tavern and your lawyer is that the former will often get you sued. In case you haven’t been sued, let me share a secret. It’s more expensive to defend an employment lawsuit than to pay for an hour of your lawyer’s time to get the correct advice. Sorry, as I get older I tend to digress.

Keep it clean.

Employment at will was never meant to be confusing. It is supposed to be simple. With the exception of protections provided by statute, employers are supposed to be free to terminate employees at any time and for any reason. Conversely, employees should be feel free to leave at any time for any reason even if that means they don’t provide you with advanced notice.

Then why the problem? The answer is easy. Employers make promises they don’t have to make. For example, employers, in an effort to make employees feel part of the team, adopted a concept known as an introductory period or probationary period. During the probationary period, the employee was led to believe that they could be terminated for any reason including the slightest infraction. This led employees to conclude that once the probationary period expired they could only be terminated for cause. What employers failed to communicate is that they never intended the nature of the employment relationship to change after the expiration of the probationary period. To further confuse employees, employers began to adopt progressive discipline policies. The rubric under which these were adopted was to make employees feel that all employees were treated equally. Once again problems arose in the execution of these policies. First, progressive discipline policies can never anticipate every conceivable circumstance. Second, employees did not understand that progressive discipline policies were intended to be advisory in nature only.

When I say, "keep it clean" I mean that the message that you, as an employer, convey should be clear when addressing the issue of the nature of the employment relationship. That doesn’t mean that you should not have a progressive discipline policy. It does mean that your progressive discipline policy should clearly state that it is for purposes of guidance only and that management reserves the right to terminate employment at any time for, for any reason, and with or without compliance with the progressive discipline policy.

My mother had a saying when I was a smart mouthed teenager, "It’s the tone that makes the music." This was my mother’s way of saying that she didn’t appreciate the sarcastic tone of my voice. The same holds true in your communications with your employees. You, set the tone of your company, and, in turn, the expectations of your employees. It is, therefore, imperitive that you are consistent in all of your dealings with the employee. A prime example of this is the employment handbook. Most handbooks address the at will nature of employment in two areas. The first is the disclaimer and the second is the obligatory at will policy. Unfortunately the disclaimer and at will policy are in the front of the handbook and are long forgotten by the time the employee gets to the end of the handbook. None of the other policies remind the employee that any promise made does not change their status as an at will employee.

Takeaways.

If there’s nothing else that you take away from this Blog post, hopefully, the following three items will resonate with you:

1. Don’t make promises you don’t have to make.

Your employees are relatively sophisticated. They understand that you are running a business. You don't have to persuade them that you are one happy family that will stay together forever. If you try, they won’t believe you. So be honest. Don’t make promises in your handbook, or any literature you publish, that is inconsistent with reality. Your employees will appreciate it.

2. Get your advice from your employment lawyer, not the know-it-all at the local tavern or diner.

While "Cheers" may be the place where everyone knows your name, it is not the appropriate locale to get legal advice. Over the years I have heard a variety of advice given in local taverns and diners that had no correlation with the status of existing law. This is particularly true when it comes to the issue of terminating an employee. Termination is a serious event that merits implementation of the plan that will minimize future adverse consequences.

3. Be consistent.

All employees should be treated similarly. That means that your most irritating, obnoxious employee should receive the same treatment as the most popular employee. That more than anything else will avoid many workplace lawsuits.

Coming up:

I know I started this series in November with a promise not to keep you hanging, but I just couldn’t bring myself to write about termination during the holiday season. In my next post in this series we will discuss discipline and documentation.

Later,

Rod

Termination

This is a topic that I don’t to like to write about, especially during the holidays. Call me the The Grinch (I’ve been called worse) but, as they say, “We need to talk.”

This is not a good time for employers or employees. The rules have changed. Employers in industries, once considered solid, are fighting to meet overhead. Employees are working harder, terrified they may lose their job because jobs that pay a decent wage are few and far between. The reality is that many people will lose their jobs before the end of the year.

Contrary to popular belief, employers don’t welcome the prospect of having to lay people off. I have had employers put off terminating employees, to the detriment of their company, because the thought of having to terminate someone was so upsetting. It is because this process is so distasteful that employers don’t give thought to the mechanism of the termination. Specifically, how to terminate in such a way that concludes the employment relationship and reduces the likelihood that claims may be brought at a later date.

In this series of Blog posts, we are going to examine termination and the employment relationship. We will examine the “at will” employment relationship, whether it is advisable to object to unemployment benefits after an employee is terminated, and effectively using severance agreements to minimize future liability.

Now, I have to get back to my real job but I promise not to leave you hanging.

Later,

Rod

Be Careful about who you call your friend.

You all know that I use Twitter on occasion and the same holds true about Facebook. Those of you that know me also know I am the shy retiring type of person who never speaks their mind. That means that I won’t use Twitter or Facebook to their full potential, but at least I won’t bore you will the details of every aspect of my life....like you really care anyhow. When I first joined Facebook, I would get friend requests from people I kind of knew. They were were acquaintances or people that I would routinely encounter in my business. Since I was new to this whole social networking thing, I didn’t want to be rude so I accepted all of their "friend" invitations. Unfortunately a few of those so called "friends" would post a bunch of dribble that demonstrated they had no life beyond social networking. Now I had a dilemma. Since it is probably considered to be more rude to “unfriend” someone that it is to have ignored their friend request in the first place, how to get rid of those posts. The solution was to create two lists. One is the “People I really give a darn about” list and the other is everyone else. (In case you’re wondering, of course, you are on the first list.) Since I have two lists, I always try to be cognizant of what I say on Facebook so I don’t offend anyone who is my “friend.” I also try to be cognizant of what I post, because I don’t want a present or future client, misinterpreting something that I posted. Some people don’t get that concept. Take the following for example: Lindsay, forgot she accepted a friend invitation from her boss, when she let go of the following tirade on Facebook:

“OMG, I HATE MY JOB! My boss is a total pervvy wanker always making me do s— stuff.”

Five hours later her boss responded as follows:

“...I guess you forgot about adding me on here? Firstly, don’t flatter yourself. Secondly, you’ve worked here 5 months and didn’t work out that I am gay? I know I don’t prance around the office like a queen, but it’s not exactly a secret. Thirdly, that “s— stuff” is called your ‘job’, you know, what I pay you to do. But the fact that you seem able to f— up the simplest tasks might contribute to how you feel about it. And lastly, you also seem to have forgotten that you have 2 weeks left on your 6 month trial period. Don’t bother coming in tomorrow. I’ll pop your P45 in the post, and you can come in whenever you like to pick up any stuff you’ve left here. And yes, I’m serious.”

Ouch!!! Firing people over their web posting (doocing) has become commonplace and the trend will continue. Recently, in Canada, an aesthetician was fired on Facebook. Illegal? Probably not. Bad taste? Definitely. Here’s the bottom line. If you are going to spew venom co-worker or boss, don’t do it in a public forum such as Facebook, MySpace, or any other social networking site. (When I was a teen the worst you could do was to write something on a bathroom stall. That was the 70's equivalent of social networking.) Just as important, think before you friend.

Employers should consider the following in light of the popularity of social networking:

1. Consider implementing a social networking policy.
2. Think before you friend. If you are in a supervisory position, consider whether it is advisable to send a friend request to subordinates or coworkers. Remember, that some employees may feel you have placed them in a position where they are required to accept your friend request. Also, consider who it is that your sending the friend requests to. As a manager or owner are your friend requests indicative of favoritism or bias on your part and can your statements made on a social networking site be used as fodder for a harassment or discrimination complaint?

Later,

Rod

I'm not a techie....

When I meet with people, especially after I speak about privacy and technology in the workplace, I often hear, "I'm not a techie so why do I have to understand social networking, texting, Blogging and cell phones." Usually this is followed by a litany of the evils associated with new technology. Since this post is being done in the relative privacy of cyberspace, I'll confess that when I hear the “I’m not a techie...” speech, I get a physical reaction.

As an employer, you cannot afford not to understand social networking, texting, instant messaging, and any other new technology that is used by your employees. Let's be honest, phones are not just phones anymore. The days of the rotary phone and party line have come and gone. Your employees, who do not consider themselves to be techies, are familiar with all of the latest technology and how it works. Understanding how these technologies work will help you understand how to protect your company from employees that abuse these technologies and allow you to better understand your employees and how they work. For example, I know that if I need to reach two of my employees a voice mail will get a returned call in a reasonable amount of time but a text will generate an immediate response. At first I was puzzled that a text would generate an instantaneous response. Finally, I asked my employees. They explained they prefer a text message because its quick, to the point and devoid of all the formalities that fall under the heading of phone etiquette. As a result, texting is the way I contact these employees. In the process of this adjustment, I learned it is an efficient way to communicate especially when you are in a rush.

As with anything, technology has benefits and risks. When personal computers and Internet usage became mainstream, there was a concern that employees would spend too much time playing Solitaire or surfing the web. Following that, concerns arose about inappropriate email usage. Now with the advent of Blogging and social networking, the alarm bell is sounding again. This time it is a concern over what is being posted on social networking sites or what is being tweeted to the world.

If you are over 30, especially if you believe 50 is the new 30, you need to take a deep breath. Ready? One, two, three....deep breath. You need to understand that there has been a paradigm shift in the way technology and privacy issues are viewed by those who are not as chronologically advanced as you are. To the under 30 generation (I know I am generalizing), posting things about their life on the web is an accepted practice. That means they don't think twice about posting their feelings about their personal and work life. They post things that do not always depict you, your company or your employees in a favorable light. It also can mean that things inadvertently get posted on the web that may be considered confidential. That's right, I said, “..inadvertently get posted...” because my experience has been that when something of this nature occurs it is not always done out of malice but, merely, because social networking sites (I am including Twitter in this definition) have replaced the local pizza joint or neighborhood bar as places for people to vent. The problem is that this new hangout is in cyberspace and every one with an Internet connection is privy to the conversation.

As an employer, the key to getting a handle on this dynamic is to spend some time learning about social networking, Blogging and texting. Most less chronologically advanced (younger) employees would be glad to help you understand these technologies. Once you feel you have a grasp on the technology and how it can be misused, communicate with your workforce through meetings and policies. Let them know what you consider to be conduct that could be detrimental or embarrassing to your company. Most importantly, allow your employees to give you feedback on how these technologies can be used in your business. You might just find a new way of conducting business.

Later,

Rod

Non-competition Agreements:

Ten (10) Cautionary Thoughts

People do odd things when they enter into a new relationship. I call it the honeymoon period. It's a time when it is all good, your vision is clouded by optimism that overlooks faults or problems that are visible to everyone else. Words of caution from well meaning friends have the sound of crazy alarmist rhetoric.  No, this post is not about relationship advice, it's about the workplace. 

The same phenomenon occurs when a new employment relationships is started.  Employees are so happy to get the job with perceived infinite opportunities for advancement that they never pay attention to obvious signs that the relationship is not going to work. Obvious things like how is the company doing financially, how does it stand in relation to competitors,  the turnover rate , and how do present and former employees feel about the company.   Employers are guilty of the same thing.  They become so determined to fill a need that they do not spend the time checking background and references. They ignore obvious signs of a potential problem because the candidate says the right things in the interview.  Every employer and employee has the battle scars from these mistakes. Employees have told me of employers who brag about a fun and joking environment that really meant they would have to endure abusive superiors who took pleasure in berating them.  Employers have told me stories of the person who left them with an uneasy feeling but their resume and interview answers were exceptional so they ignored those subtle warnings that are indicative of an employee that will be a problem.

During this time, employers and employees make promises that they feel they never have to keep because they don't envision this new relationship ever ending. One of those promises is the promise to be bound to a non-compete.  Most employers think a non-compete is an essential ingredient to protect their company, even though their real concern is confidentiality  or non-solicitation.  Employees view non-competes as "standard contracts" than everyone has to sign. If you take anything from this post, I want you to remember two things:  

1. There is no such thing as a standard agreement; and 

2. Everything is negotiable...everything.

With the recent economic downturn, employers are more likely to enforce a non-compete and less likely to look the other way, especially if you are considered to be top talent. IBM, Dell, HP, and Apple have recently been involved in very public disputes over the enforcement of non-competes. To the employee this can mean not getting that great job new job. It can mean having to pursue a new career path or having to move in order to get work.  

The truth is that employers and employees to think before they leap into a non-competition agreement. As a result, here are my 10 tips to consider before proposing or inking that non-compete.

1. Ask yourself what you are trying to accomplish.

Is the goal of the agreement to protect your confidential/proprietary information? If so, a non-compete may not be necessary. Instead, you should consider using a confidentiality agreement. Too often employers have not defined what they are trying to accomplish. The end result is they use a shotgun when a scalpel is sufficient.

2. Is the restriction reasonable?

States that enforce non-competition agreements are going to require the agreement to be reasonable in duration and geographic scope. What that means is that you are not going to a persuade a court to enforce a non-compete that lasts for eternity and prohibits an employee from working anywhere in the Milky Way galaxy. They will enforce an agreement that prohibits competition for 1,2 or 3 years in the geographic location where a company actually does business. Remember: Less is more. Prudent employers recognize that non-competition agreements that are narrowly tailored will less likely to be challenged in court. Translation. Less legal fees and a greater likelihood your objective will be achieved.

3. Employees: How you are going to get paid while the non-compete is in effect?

A common complaint from employees is that the non-compete prohibits them from earning a living once they leave their employer. An employee signing a non-compete should consider asking their employer to pay them for the time that they are bound by the non-compete. Although some may think this is a radical idea, it offers distinct advantages to the employer and employee. For the employer, the prospect of having to pay a departed employee its wages has the effect of causing the employer to give serious thought to the duration and geographic scope of the agreement. In addition, by paying an employee during the period of non-competition, the employer has the contractual and moral high ground in the event it has to enforce the agreement. For the employee, it provides an income during the period of non-competition and thereby provides an incentive not to violate the agreement.

4. What happens if your company is sold or you are laid off.

Many employees signing non-competition agreement find themselves bound by that agreement after they are laid off or their employer merges with or is acquired by another company. The time to address these issues is at the beginning of the employment relationship while the prospect of a lay off, merger or acquisition is not on the horizon.

5. Where are you going to dance and what type of music will you be dancing to?

Lawyers refer to this as venue and choice of law. Venue means the court that will hear any dispute over the non-compete. Savvy employers will insist that cases are heard in jurisdictions that are inclined to enforce non-competes. Choice of law is the law that will apply. Again, employers will insist on jurisdictions that favor enforcement of the agreement. Employees should exercise great care when it comes to venue and choice of law clauses. One of the worst things for an employee to encounter is having to defend against enforcement of or challenge a non-compete in another part of the country. This gives the party with the most money a distinct advantage.

6. Tell prospective employers about your non-compete.

Many employees try to act like a non-compete does not exist. When the former employer alerts the new employer that the employee is bound by a non-compete, the employee acts surprised when they find themselves out of a job. It is always in the employee's best interests to allow a prospective employer to view their non-compete. In that way, the new employer can have the agreement vetted by their legal counsel. In many instances, if legal counsel opines that an employee is not barred from working at a company because of a non-compete, the employer will agree to provide their employee with legal defense in the event the past employer seeks to enforce the agreement.

7. Tell your employer that you have accepted the new position.

Transparency goes a long way. Many employees create problems by not being candid with their employer. Instead, they accept a position with a potential competitor. Once the former employer learns that the employee has accepted the new position, it immediately assumes the worst. Not only does this usually result in litigation, it also jeopardizes any possibility that the employee will be able to return to the company in the future.

8. Make sure you pay consideration to support the non-compete.

Many states require a non-compete to be supported by consideration. Talk to your lawyer to determine what is adequate consideration for a non-compete.

9. Figure out what it is that you need?

This goes back to item 1 which was what are you trying to accomplish. If you want to prohibit a departing employee from raiding your workforce or your customers then have them sign a non-solicitation agreement. If you are trying to protect confidential information such as customer names or other data your company treats as proprietary have the employee sign a confidentiality agreement.

10. Don't forget about the UTSA and the employee's duty of loyalty.

Once you, as the employer, define what it is that you are trying to protect, you will find that legal remedies exist that are designed to protect you. Many states, including Washington, recognize that a departing employee has a duty of loyalty to their employer until they leave. In addition, most jurisdictions recognize the Uniform Trade Secrets Act (UTSA) which has a strong enforcement mechanism.  Sometimes these existing legal mechanisms, are adequate to address your concerns.

Later, 

Rod

Facebook habit leads to job loss

Social networking can have its benefits. It can also have its drawbacks. Consider the case of a woman in Switzerland who was fired for being on Facebook while she off of work sick. When I first read the teaser for the article, my first thought was, "That's horrible. She has every right to surf the web and social network while off sick." Then I read the article.

According to the news report, the woman told her employer that she could not work in front of a computer terminal and needed to be in the dark. Apparently, that did not prevent her from using her iPhone to update her Facebook status. While the employee felt the employer's actions were an invasion of privacy, the employer felt this was an "abuse of trust." That's a nice way of saying you're fired for lying, which is precisely what occurred.

Lessons learned:

Before the Internet, employees fibbed about being sick to catch a baseball game or to have a "mental health day." Today, the same thing still occurs. The only different thing is the context has changed.

No, I'm not advocating that an employer terminate every employee that updates their Facebook status or tweets while off sick. The point here is that the employee appears to have lied about the reason for their being off. Even under these circumstances, any employer that is considering termination for this offense ought to give some thought to the following:

1. Was the nature of the illness such that some time resting may have resolved it. As anyone with Migraines knows, a couple of hours in the dark with your eyes closed can have tremendous results.
2. Is termination really necessary? Assuming the employee lied about this, is this a case where some other form of disciplinary action may have an educational effect? Sometimes in cases of this nature, employers will fire first and evaluate whether their treatment was consistent with past practice later. That can give rise to claims of bias in the termination process.
3. If termination is deemed the best approach, then has that decision been vetted by the appropriate decision makers?

Finally, employees remember that friends on social networking sites are a mix of friends, acquaintances, and people that have asked to be your friend that really don't know you. That means what you say and do on a social networking site has the propensity to get back to those folks at work.

Just some thoughts,

Rod

Seattle Law Bloggers Meet

About once a quarter the Seattle Law Bloggers get together to share ideas on everything from Blogging techniques to practice management. The last meeting was held at Spitfire a local bar just north of the heart of downtown Seattle.

Nineteen (19) Bloggers were in attendance. See pics below:







In the picture above, Shalini Gujavarty (right) (www.avvoblog.com) is sitting beside D. Jill Pugh (www.employmentlawwa.com)

I think it's time for the Bloggers to take a roadtrip to Vancouver to meet some our fellow Blogger north of the border.

Rod

Cheer Leading Coach gets Dooced!!!

The term "dooced" used to mean that you were fired for something that you put on your Blog or website. The term was coined by Blogger Heather Armstrong when she was fired for commenting about her work on her Blog, dooce.com. Today, getting dooced is nothing new. Employees are routinely getting fired for their Internet activities.

Case in point, cheer leading Coach Carlie Christine was discovered posing as one of Playboy's Cyber Girls of the Week. The end result, Carlie is out job hunting. While some websites report that the revelation of Ms. Christine's photographic pursuits occurred after some bitter teens were cut from the cheer leading team, that really does not matter. Nor does it really matter that the parents were upset or that, allegedly, the entire football team was aware of the pictures. The bottom line is this. We are no longer living in a time when the only people with an Internet connection are scientists and geeks with lifetime memberships in the United Federation of Planets (Live long and prosper). As a consequence, the likelihood that your Internet activities will be discovered has increased exponentially.

Employees:

Let's put aside what your mom may think about your conduct. The real issue for employees is what future employers may think about you based on what you post online. The next time you wax poetic on your Blog or upload pictures of yourself and your friends in an alcohol and cannabis induced stupor, you may want to give thought to what a prospective employer will read and/or see. Is it fair? Probably not. However, when you are applying for a job, your employer will take the time to Google you. In most instances, they will not be impressed with your ability to chug a 40 oz beer. I'm not telling you not to do your "social thing" but consider who will see your pictures. Remember, just because you set your account to private won't stop one of your friends from copying and posting your embarrassing moments on their website. After that, the proverbial cat is out of the bag.

Employers:

Don't hide you head in the sand. Have a Blogging policy and advise your employees that you will consider conduct that may portray your company in a negative light as an offense that could result in termination. In that way, when you have to terminate someone, because of their conduct on the web, it will come as no surprise. I bet that Coach Christine did not make the connection between her pictures on web and her termination until it happened. By then it was too late. This has turned into a lose-lose situation. Ms. Christine has to find a new job and the school district is left looking for a new employee. A little communication may have avoided this entire issue.

Later,

Rod

For all you lawyers out there.

I came across a quote from the famous trial lawyer, Richard "Racehorse" Haynes, that I think any lawyer that tries cases can identify with:

"I would have won them [all], if my clients hadn't kept reloading their gun and firing."

Think about it.

Rod

Cracker Barrel settles sex harassment lawsuit

Cracker Barrel just settled a sexual harassment lawsuit with the EEOC. (Click here to read article) The allegations surrounding this claim were that the General Manager, Managers and male employees, at the Cedar Bluff, Tennessee Cracker Barrel, subjected female employees to lewd comments and sexual jokes. The employees alleged they reported their complaints to management and an employee hot line and no investigation was forthcoming.

The settlement requires Cracker Barrel to do the following:

1. Pay the victims $225,000;
2. Modify its sexual harassment and investigation policies; and
3. Perform the following for the next three (3) years:

a. conduct annual training on issues of sexual harassment and retaliation;
b. maintain of log of and report any claims of sexual harassment; and
c. post its policy on sexual harassment and that it will investigate anonymous complaints of harassment.

Bottom Line:

During tough economic times there is a tendency to avoid training on issues of harassment/discrimination in an effort to save money. This is the wrong approach to take. Training helps prevent lawsuits, stops you from paying attorneys, and allows your employees to focus on their jobs rather than have to do their jobs and participate in the litigation process.

Although training is key, please don't overlook reviewing your handbook. Policies that are antiquated should be eliminated. If you don't use or you don't follow it, get rid of it. The same holds true for your forms. As one speaker said, "I'd rather have no documentation than bad documentation." This hold true for forms. Forms are great, however, if your forms are never used they can become a liability. (see my previous posts on documentation)

Later,

Rod

Romance...

I just came across Vault's 2009 Office Romance Survey. Before I talk about the survey, here's my disclaimer. This seems to be a voluntary Internet survey and I have no idea how many people participated and whether it has any scientific validity. Also, this is probably the first time I have had what some may describe as a rant on my Blog.

So how did a simple survey on romance, of all things, get me so worked up? Simple, in my job I see the fallout from failed office romances. Too often they cause a mess. People lose their jobs and companies get sued. No, I am not being dramatic, although I will confess to having my moments. For every successful office romance, I can probably show you 5 disasters or at the very least a disaster in the making. Some of the results of the Vault 2009 Office Romance Survey surprised me, starting with Question1 (For those of you who can't wait to see the survey click here.)

Have you ever been involved in an office romance?
Results: Yes 58%
No but willing 12%
No 30%

In other words, the number of people that would have had an office romance would be as high as 70% but 12% of the survey participants haven’t had the opportunity, but they are ready to go. Following Question 1, Vault listed comments by survey participants. One of the comments listed, presumably by a survey participant, was:

"We worked in one large department, but were not related in subordination (I was in finance and he was a lawyer). The romance bloomed after a corporate party together but did not last long"

From this quote we can learn two things. First, contrary to popular belief, even lawyers are susceptible to Cupid’s arrows. Second, when it comes to matters of the heart, even those conservative legal and finance types don’t exercise the best judgment.

I am prepared to receive my share of hate mail from those of you who work tirelessly and don’t have time to engage in the time honored tradition of socializing outside of work to find a life partner. It takes effort, it costs money and it’s just not that efficient. Let’s face it, in tough economic times it is cheaper just to meet someone at work than go through the dating thing. What did your mom tell you? “Penny wise, pound foolish.” I also know that some of you probably met your soul mate at work. To you, I can only say, “I’m really happy for you. Too bad you are the exception rather than the rule.” According to the Vault survey only 24% of survey participants met their spouse/long term significant other on the job, which means the other 76% did not meet their life partner at work.

The truth is that most office romances don't last, they make things uncomfortable for your coworkers and cause problems for your employer. The problem in most cases is not the romance [although it can be a problem if you have couple of adults displaying PDA(public display of affection not personal digital assistant) like teenagers at summer camp]. In fact, the problem with an office romance begins in those 76% of the cases when the romance ends and someone is hurt. Hurt feelings cause people to act irrationally. Coworkers get recruited to align themselves with one person or the other. In the worst case, one of the refuges from the romance is in a position to make life, for the former object of their affection, miserable. This can lead to claims of harassment and retaliation.

Even if things don’t go that far, a failed romance can cause people to leave your company. Interestingly, the Vault survey found that 26% survey participants left their employer because it was "too awkward to work together after a break up." Heck, even if the romance is the start of a great relationship, it can cause an employee to leave. According to the Vault survey 26% said they didn't want to work together after they became a couple because of "too much closeness." In either circumstance, the employer loses out and has to absorb the cost of hiring and training a new employee. Now that I'm through with my rant, let me tell you how I really feel:

1. In my ideal world office romances of any sort would be banned. I would take it one step further. Anyone that thought of starting an office romance would be required to buy a pet. This would simultaneously solve the problems associated with office romances and overcrowded animal shelters. I have to be realistic. I understand that people are people and whether I like it or not they will have office romances. In my twisted lawyer world, your office romance is a form of job security.

2. If you have an office romance with someone you supervise, three words: Quid Pro Quo. When this relationship implodes, explodes or just gets messy, you may have just placed your company in the position of having to defend a claim for Quid Pro Quo sexual harassment. Trust me, when this relationship is over, particularly if you broke it off, the other person won't be shooting good vibes your way. More likely than not, they will begin to question whether this was a consensual relationship and whether you abused your power to get them to engage in this relationship.

3. If you think you can divorce your hurt feelings following a breakup from how you act toward your coworker/former special person, repeat after me: “You are hallucinating.” You can’t and no one expects you to, but your coworkers would appreciate it if you did not act out scenes from Fatal Attraction in the workplace.

4. Employers:

a. Recognize that office romances will happen and plan for them. Don’t be like the 65% of the companies that the Vault survey participants worked for that did not have a policy addressing office romance.
b. Consider at the very least having employees report their romance to HR, particularly if it involves a supervisor/subordinate romance.
c. Have a written policy addressing office romances that includes a protocol to report any retaliation that may occur once the romance ends. d. Once you have a written policy, train employees on how the policy works.

5.Employees:

a. Don't do it. Did I say, "Don't do it." If not, just don't.
b. I know we are all working long hours but it’s not Cupid’s arrow you feel. You are just too exhausted and delirious from working long hours to use good judgment. Get some rest and distance before you decide to jump into that romance.
c. If your coworker or boss is pressuring you to date or get romantic, tell them no and, if that does not work, run (don't walk) to HR and make a report.

Just some thoughts,

Rod

2.3 Million reasons to have an effective training program

On Wednesday of last week, a Los Angeles jury returned a verdict in favor of Officer Melissa Borck in a lawsuit against the Los Angeles Police Department. The verdict: $2,300,000.00. (To read more click here.)

From what I have read, the allegations include an incident where a male officer pushed Officer Brock's head to his groin and stated, "I thought you would never ask." In addition, while pregnant, male officers commented about the size of her breasts and asked her to breast feed them. Borck contended that the stress of the hostile work environment caused her baby to be stillborn. She also contended that females were ordered, by male officers, to make coffee and get lunch. According to Borck, the work environment was one of constant harassment and retaliation for female officers.

This result should not have been unexpected. In November of 2008, the LAPD was hit with a $2.25 million dollar verdict in a suit brought by another female officer, Patricia Fuller of the Bomb Unit. Fuller alleged that she too was subjected to unwelcome sex based conduct that included male officers exposing their genitalia, sexually explicit comments, and exclusion from training programs.

The Bottom Line:

Contrary to popular belief, sexual harassment is not something that we no longer need to be concerned about. The truth of the matter is that human resources departments must continually fight this problem. There is no easy solution for the problem. Employers that have had success battling this form of harassment have taken a two prong approach to training. The first prong addresses issues of sexual harassment and gender discrimination in the workplace. The second emphasizes the manner in which complaints of harassment are reported and provides employees assurances that they will not be the subject of retaliation for their reports. However, no amount of training will be effective if upper management does not dig in its heels and mandate that a zero tolerance policy for sexual harassment that includes harsh discipline for violations of that policy, even if the culprit is a "rising star" in the organization.

Later,

Rod

New Cobra Information

The Department of Labor has recently announced it has updated its website with new information for employers in light of the recent changes to COBRA. To view the DOL website or download new posters click here.

Take care,

Rod

Washington Employers: Workplace Posters

The Department of Labor and Industries has updated three of its workplace posters which are required to be posted in a conspicuous place in the workplace. The updated posters are:

1. Job Safety and Health Law (click here to download)
2. Your Rights as a Worker (click here to download)
3. Notice to Employees-If a Job Injury Occurs (click here to download)

Make sure you get these downloaded and posted as soon as possible.

Later,

Rod

Correction to Cobra Bites Post

Last week I posted an update on the legislative changes to COBRA that are part of the economic stimulus package. In that post I indicated that individuals that paid for COBRA at the full rate since September 1, 2008 would be able to receive a reimbursement for 65% of the premiums paid since under the terms of the new legislation they are "assistance eligible individuals." One of my readers, anonymous, told me I was wrong about this since the legislation speaks of subsidizing premium payments from the date it is sign (2/17/09) forward. I responded that I didn't think that was the case since the definition of an assistance eligible individual is someone who was involuntarily let go on or after September 1, 2008 and before January 1, 2009. I felt the legislation was not clear on the issue and, let's be honest, I just couldn't accept that a person who found a way to pay the premium between September 1, 2008 and February 17, 2009 should be penalized. I mean, hey, this is an economic stimulus package after all and if you reimburse an assistance eligible individual for past premiums, then they will use that money to stimulate the economy. Well, I was wrong. I just found the following on the Department of Labor website:

The premium reduction provisions relate only to premiums for coverage periods beginning after the new law was enacted on February 17, 2009. The law does not allow reimbursement of premiums for coverage periods beginning before February 17, 2009. Qualified individuals can, however, receive the premium subsidy going forward, for up to nine months.

Your plan administrator should provide to you a notice of your right to apply for the premium reduction. You may also want to contact your employer directly to ask about getting the premium reduction and how to reconcile any amounts you might have overpaid after February 17, 2009.

So there you have it. I stand corrected and thanks for the heads up Anonymous. In the meantime, I will keep you up to date on additional information I learn about COBRA.

Take care,

Rod

EEOC settles sex harassment case for $200K plus

According to the EEOC, a female employee (Bell) that worked in the Service Department at Murphy Ford, in Chester, Pennsylvania, was the victim of sexual harassment perpetrated by the store Service Manager. The Service Manager is alleged to have made explicit sexual remarks, commented about oral sex, and grabbed his private parts in the presence of the Bell and other females. Bell went to upper management and ownership in an attempt to get the matter resolved. Shortly, after her reports she was abruptly terminated.

The dealership settled the case for $244,000.

Take Aways:

1. Take all complaints seriously.

2. When a complaint is received investigate immediately.

3. While the investigation is pending give consideration to what steps can be taken to avoid retaliation.

4. In the event you are able to confirm serious misconduct by the alleged perpetrator. Act swiftly and meaningfully. Make sure your disciplinary action is tailored to the seriousness of the conduct such that it will have the effect of stopping it. Don't be afraid to terminate. Trust me, your lawyer would rather defend the wrongful termination claim than the sexual harassment claim.

5. Think twice and then a third time before firing an employee that has raised issues of harassment or retaliation. Even if there is not enough to establish a claim for harassment or discrimination, your actions in terminating the employee will be viewed as retaliatory. Courts, and juries, place a great deal of weight on the temporal relationship between the report of harassment and discrimination and the adverse action. In plain English: Timing is everything. If the action you take looks bad, juries will assume it is bad.

6. Be proactive. Train, train and train some more. Even in difficult economic times it takes a whole lot of training to add up to $244,000.

Just some thoughts,

Rod

CAUTION: COBRA may bite.

Employers that employ 20 or more people are required to comply COBRA. What that means is these employers have to allow departing employees the option to continue their health insurance by paying the premium, as well as, a 2 % administrative fee. Most employees, unless they have a serious health condition, do not elect to have COBRA coverage. They make this decision for a variety of reasons. Typically, they can find similar insurance for less or they conclude the benefit is cost prohibitive.

Enter the stimulus package. Under the stimulus package signed by President Obama today, the government is going to subsidize 65% of an employee's COBRA premium provided the employee became involuntarily unemployed (that's a nice way of saying someone done stole your cookies) between September 1, 2008 and December 31, 2009.

My first thought was, "How does this all work?" The answer appears to be that when an employee elects to receive COBRA benefits, after becoming "involuntarily unemployed" the employer pays 65% of their COBRA benefit. Then the employer will be able to offset that premium payment against their payroll taxes. (More business for my CPA buddies.) In addition, employers must contact their employees who elected to receive COBRA on or after September 1, 2008 and notify them that they are entitled to have their former employer reimburse them the 65% of the premiums paid to date. Let me see if I can anticipate the next question. What if you did not elect to receive COBRA because of the cost and the election period has expired? Well, all is not lost. Apparently, you will get a new election period. That means that employers will have notify employees let go between September 1, 2008 and February 16, 2009 to allow them a second opportunity to elect receipt of COBRA benefits, this time under the terms of the stimulus plan. Once notified, employees will have 60 days to make that election.

The bad thing about legal training is that your brain gets to a stage where it never stops churning. So I don't know whether employees who were terminated before September 1, 2008 but whose COBRA election period expired on or after September 1, 2008 will be entitled to receive a second chance at the new and improved stimulus COBRA. My suspicion is they won't. I'll let you know what I find out.

For those of you, like me, that can brag that tax was their worst class in law school and believe that Calculus was conceived to flummox us average folk, here is a video to explain the economic stimulus package.

Later,

Rod

Blog to watch

Kimberlie Ryan is an attorney, teacher, television legal analyst and author in Colorado. I ran across her Blog (Kimberlie Ryan's Hot Button Forum) after reading an article she published on severance agreements on the website of a Colorado television station. Her Blog is a good read. In her Blog she talks law, politics, and offers some opinion. You may not always agree with her, but she'll at least get you thinking. To read Kimberlie's Blog click here or scroll down to my Blogroll.

Got to go. My paralegal is telling me its time to get seminar materials, due next Monday, done. First things first, I think I'm going to take the jump and try Twitter. You should see the link to Twitter come up soon.(Unless I mess it up and crash the Internet.)

Later,

Rod

1.55 Million Reasons to get your act together...

The EEOC recently announced that it settled a claim brought against Merrill Lynch for the sum of $1,550,000. In it's lawsuit the EEOC alleged that Merrill Lynch refused to promote and terminated Majid Borumand because of his Muslim faith and Iranian descent. According to the EEOC, at this same time Merrill Lynch promoted a less qualified individual. In addition to the financial terms of the settlement, Merrill Lynch had to agree to provide training on discrimination based on race and national origin. In addition, it had to agree that it will not discriminate based on race and national origin, nor will it retaliate against those who oppose discrimination in the workplace.

Employers it's time to pay attention to these claims they are on the rise and this case is not an aberration in terms of value. Just recently, a federal appeals court upheld a $756,000 damage award against AT&T in favor of two Jehovah's witnesses who were fired after attending an annual convention for members of their faith.

Law Firm sues former Associate for educational expenses.

When employees elect to leave an employer, they often fail to consider whether they have obligations to their employer. Although I don't know if that was the case in a matter involving an associate at the Perkins Coie law firm but according to a recent article (click here to read), Perkins Coie is suing one of its associates for approximately $36,000 in educational expenses paid by the firm. That employee left for a rival law firm. According to the article, Perkins advanced educational expenses that the employee could then work off over time. When the associate left, he had not worked off his expenses and Perkins must have decided its time to pay up. I haven't seen anything other than the article linked above so I won't address the merits of the claim or any potential defenses.

Why write about it? Well for a couple of reasons. Employees sometimes get the impression when they take a new job that they can leave without any obligations to their current employer. That is not always the case. Unfortunately, most employers offer to help with things like educational assistance but don't think about what will happen if the employee decides to leave shortly after they have received the benefit. To be fair, the employee does not give thought to this either. Typically, these agreements are made between the employee and employer during what I refer to as the honeymoon period. It's just human nature that we don't want to think about what will happen if things sour. That's a mistake. These things need to be discussed and memorialized (that's a lawyer term for get it in writing). Please be a little more detailed than reciting, "Joe agrees to repay our company for educational expenses if he leaves." Consider including the following:

1. How will it be repaid? In lump sum or over time?
2. Can the employee discharge all or a portion of the obligation by meeting performance goals and/or through length of service?
3. If a law suit becomes necessary will it be heard in court or in an arbitration proceeding?
4. In what jurisdiction will the dispute be heard?
5. Will the prevailing party be entitled to recoup their attorney's fees and court costs?

Finally, if you are an employee and are concerned about having to repay your employer for a job benefit, raise that issue before you leave. By being transparent with your employer, more often than not, you will find that these issues can be worked out.

Rod

Rod's Reminder:
Don't forget about the WLAD

Washington is one of those few states that has a strong state law against discrimination, the Washington Law Against Discrimination (WLAD). Too often when employers enter into to a dialogue of sexual harassment, and other forms of discriminatory conduct, they tend to focus on the federal components of the law (i.e. Title VII, ADA, FMLA). In so doing they fail to take into account that they may have a greater obligation to act under corresponding state law. In addition, keep in mind that an experience employment law attorney will always examine the facts of their client's case to determine which law affords a greater degree of protection.

The lesson: Ignore state law at your peril.

Later,

Rod

Severance Agreements

Since I represent employers and employees, I have mixed feelings about severance agreements. Originally, severance was a benefit that was offered to employees to reward them for their length of service and loyalty to the company. That original concept has evolved. Today, a severance agreement can include a number of things:

1. A financial payment to employees
2. A release of all claims
3. A confidentiality agreement
4. A non-solicitation agreement
5. A non-competition agreement
6. A non-disparagement agreement (i.e. you are not going to bad mouth the company)
7. A catch all for everything the employer didn't get around to having you sign before they decided to eliminate your position.

Too often, employees sign these documents without question. Their rationale is that it is a standard document as if there is a form severance agreement that every employer must use. There isn't, although the waiver of rights under certain laws may require the employer to include warnings or notices.

Virtually, every severance agreement includes something similar to the following language:

This Agreement constitutes the entire agreement between John Doe and The Company and supersedes any prior agreements or understandings, express or implied, pertaining to the terms of John Doe’s employment with The Company, the termination hereof, or any other matter related to any claim John Doe may have against The Company. John Doe acknowledges that in executing this Agreement he does not rely upon any representation or statement made by The Company or any representative or agent of The Company concerning the subject matter of this Agreement except as expressly set forth in the text of this Agreement.

In plain English, if it's not in the severance agreement it didn't happen and the employer does not have to do it because the severance agreement supercedes everything. In other words, if the employer promises to give you a glowing letter of recommendation, get it before you sign or address the issue in the agreement. If the employer owes you money for vacation and other accumulated PTO, that severance document should reflect you are receive that payment. If you are leaving on less than desireable terms, it may be advisable to address what information will be conveyed to future employers.

It's not my goal to create a negative impression about severance agreements. I think they can be a valuable tool that allows an employer to tidy matters up while providing the employee with a financial benefit that will help them in their employment transition. My goal in writing this post is to convey to employees that you should read what you sign, understand what duties you and your employer have under the severance agreement, and get legal advice from an employment attorney before signing the agreement.

Later,

Rod

Earthquake

This morning I woke up to find out we had an earthquake here in the Seattle area. Depending on who you listen to it was 4.5 or 4.6 magnitude earthquake. I slept right through it. Those of you that have been in an earthquake know that it's not that big a deal until it his a 5 plus magnitude. Then it gets your attention.

Often, in the workplace there is a similar phenomenon. You've know there are employee problems, but they really have not risen to a crisis level so you don't take action. It doesn't mean there isn't something serious going on, but it's just not a jolting event that will prod you into action. If left unattended, these small problems can become catastrophic to your organization. Sometimes, the small problem is a symptom of a larger and, ultimately, more costly issue.

Unfortunately, with so much of our day being controlled by what comes and goes through your email inbox, it is difficult to have face time with employees. Nevertheless, it is when you first learn of a small problem that you, as a manager, owner, or human resource representative need to be there to ask questions and listen. I have seen many instances where management believed that they were faced with a personality conflict between employees only to later find out, in a lawsuit, that the real problem was discrimination, harassment or retaliation. More often than not, the litigation could have been avoided if a company representative, after learning there was a problem, had asked the most powerful question in their arsenal: "Why do you think this is happening?" The "why" question places the ball squarely in the employee's court. They either have to admit they don't know why or tell you their real suspicions. If the former, you make an appropriate notation in the employee's file and you can use that as a defense in litigation. If the latter, you know know it is time to investigate and get to the root of the problem. Either way, you have probably saved your company a significant sum of money and provided it with valuable defenses it would not have had otherwise.

Later,

Rod

IBM and Papermaster settle

In my November 18, 2008 (Apple and IBM mix it up), I wrote about a lawsuit filed by IBM against Mark Papermaster, its guru of IBM’s Power Architecture and X-64 Blade Servers. The gist of the lawsuit was that Papermaster allegedly violated his non-competition agreement with IBM when he accepted a position with Apple that gave him oversight of the iPod and iPhone. Apparently, IBM felt that Apple really hired Papermaster to expand its server business by using confidential information Papermaster acquired while working at IBM. IBM won the first round by convincing a judge to issue a preliminary injunction that prohibited Papermaster from moving to Apple. As a condition of getting a preliminary injunction, IBM had to post a $3 million bond to protect Papermaster from financial loss in the event the judge would later determine the injunction should not have issued.

At the time I wrote the November 18, 2008 post, I suspected that this case would be “resolved to the satisfaction of the parties.” Translated into plain english that means that someone paid a lot of money to make the case go away. No one is talking money, although IBM has issued a statement outlining some of the parameters of the settlement. (To read about the settlement terms and get additional details of the litigation click here.) As a lawyer, I was selfishly hoping that this case would not have settled because it was fascinating to watch the tactics employed by the parties. Never the less, it is best for the parties to settle the case.

Take Away.

Employees:

Always, always, always think about what you are going to sign and get legal advice before you sign a non-competition agreement. There is no such thing as a “standard agreement.” Often employees sign a non-compete with no thought of what will happen in the future. While you may be excited about that job and the pay increase, life ain’t always gonna be a bowl of cherries. Once you sign, you are bound and you won’t get a do over. Management and the direction of the business may change and you may not like those changes. If that happens, you do not want to be out of a job, without an income and considering accepting a position making caramel apples at the local amusement park to make ends meet. Here are just a few things to consider before signing a non-compete:

1. Are you being compensated during the period in which you can’t compete?
2. Is the non-competition agreement valid in the case your company is sold/acquired?
3. Are there any circumstances under which the agreement will not be enforced?
4. If there is a dispute, what court will hear the dispute and what state’s law will apply?

Employers:

Don’t plagiarize a non-compete used by a colleague and don’t use a form you find on the web. Although courts will enforce non-competes, they are reluctant to do so. You need to have a non-compete that is narrowly tailored to your business needs. While it may feel good to prohibit an employee from competing with your business anywhere in the universe for the next 10,000 years, that type of over broad approach will not endear you with the judge. A judge, however, will enforce a tightly drafted agreement that is relatively finite in duration, limited in geographical scope, and supported by consideration. It short, have your lawyer draft the non-compete.

Employers and Employees:

When you approach a non-compete, remember the lyrics of the old song, “You can’t always get what you want, but if you try some time, ......(you know the rest)”

Later,

Rod