Employment Advisory

2008-06-19T22:06:00.000-07:00

New Case Protects Privacy of Text Messages

The Ninth Circuit Court of Appeals, in a case entitled Quon v. Arch Wireless, held that text messages stored on the server of a cellular provider cannot be disclosed to an employer subscriber without the consent of the employee that is using the text messaging device.

To employers, this means, that unless you store text messages and instant messages on your company owned server, the employee will be able to assert they are entitled to privacy rights to the content of those text messages. Based on the tenor of this case, employers should consider altering their Internet usage, email, text and voice communications policies to provide that an employee, by using any company owned property or company provided service, consents to a review of any content of any communication including content that is stored by third party vendors. Since consent is being obtained, it would be of benefit to have the employee sign the consent.

To those of my readers that work for governmental agencies, the Quon case also creates a 4th Amendment protection in the content of text messages held on the servers of third party providers. To read this case, click here.

Nothing in this Blog should be consider legal advice or to form an attorney client relationship. In the event you have a legal matter, you are urged to contact an attorney who can address your particular legal matter.

2008-06-19T09:54:00.000-07:00

No Match Letter does not give right to fire.

Aramark employs approximately 170,000 people in the United States. In 2003, Aramark received notice from the Social Security Administration (SSA) that 3,300 of its employees did not provide social security numbers that matched those in the SSA database. These type of notices are typically referred to as "no match letters." Forty eight (48) of those employees worked at the Staples' Center sports arena in Los Angeles.

On April 15 and 16 of 2003, Aramark sent a letter to the 48 Staples Center Aramark employees advising them to obtain either a new social security card or to provide verification that an application for a new social security card had been submitted to the SSA. These employees were given 3 days from the date of the letter to accomplish this task. Practically, if one takes into account that it would take one day for the letter to be mailed, the employees had two days or less to comply. Fifteen (15) employees were able to timely get the information requested. Thirty-three (33) employees did not and were fired.

The fired employees took this matter to a union arbitration and won. Aramark appealed and sought intervention by a federal court. The trial court found in Aramark's favor and the union appealed to the 9th Circuit Court of Appeals.

Aramark defended its actions by arguing that the no match letters provided constructive knowledge that the 33 fired employees were illegal workers. Aramark contended it had to fire the employees since, under the Immigration Reform and Control Act of 1986 (IRCA), it would be subject to civil and criminal penalties if had actual or constructive knowledge that the employees had undocumented status. According to Aramark, the receipt of a no-match letter constituted constructive knowledge of the worker's illegal status. As a result, Aramark argued the terminations were justified.

The 9th Circuit Court of Appeals disagreed. It felt the no match letters, by themselves, did not provide constructive notice of undocumented status. In so holding, the court observed that the SSA's stated purpose in mailing no match letters is to alert individuals that social security contributions are not being properly credited due to mismatched records. The SSA also advises employers that they are not to infer that a no match letter is indicative of undocumented status nor are employers to take adverse action merely due to the receipt of a no match letter. Based on this, the court felt that a no match letter was not the type of positive information from the government that provides constructive knowledge to an employer.

From the opinion, it appears that the court was most concerned by the relatively short period of time within which employees had to act (3 days from date of letter). While Aramark permitted the terminated employees to reapply for employment once they obtained proper documentation, the court felt it was unfair to give employees less than 3 days to correct a problem that could take as long as 90 days to resolve. The court expressed concern that, under similar circumstances, an employer could use the receipt of a no match letter to justify a discriminatory termination under the pretext of compliance with IRCA. To bolster its argument that the employees were not give sufficient time to correct the no match, the could observed that under regulations adopted after this case was filed, employers are provided a safe harbor ( a window of immunity from prosecution, under IRCA, based on constructive knowledge) if employees, are given 90 days, after the employer receives a no match letter, to provide necessary verification. Under these regulations if a no match cannot be corrected within that time frame, the employer can qualify for a safe harbor if it submits an I-9 that relies on information other than a social security number to verify the employee's status.

The Bottom Line:

It always comes down to fairness and perceived fairness. While Aramark may have felt its actions were justified by a legitimate concern that criminal and civil penalities for IRCA violations could be imposed, the actions taken were too drastic and did not recognize institutional barriers that could make impossible for some employees to resolve issues created by the no match letters. The actions taken by this employer failed to be fair and failed to create the appearance of fairness.

Nothing in this Blog should be considered to be legal advice or to form an attorney client relationship. The matters discussed in this Blog are general in nature and are not intended to be relied upon by individuals faced with a legal problem. Nothing can substitute for the legal advice of a seasoned legal professional, who can tailor her/his advise to your particular legal cirumstance.

2008-06-19T09:46:00.000-07:00

Wednesday's Excuse

on Thursday

Two words that automatically invoke sympathy on the part of anyone:

Root Canal.

2008-06-10T22:21:00.000-07:00

11 Things to Think About Before You Fire

Firing an employee is difficult. Many times employers realize that an employee has to be let go, but put off the decision. Some explore other avenues to correct performance or behavior deficits, while others ignore the problem until it reaches a critical stage.

The decision to discharge an employee should be made only after careful reflection. Yes, I understand there are circumstances where the misconduct is so significant that immediate termination is warranted. Those instances tend to be the exception rather than the rule. In most cases, the employer is aware that things are just not working out, but is either distracted with more pressing issues or just does not want to address the problem.

The purpose of this Blog post is to review some areas for consideration before the decision to discharge is made. Ultimately you will have to weigh these considerations and make the call.

1. Have all the pertinent facts been recorded?

Before making a discharge decision, employers should make sure that all facts are recorded accurately. That means an assessment of all documents in the employee’s personnel file and all notes kept by management concerning the employee. Assemble all performance evaluations, attendance and payroll records, customer communications, calendars, discipline and warning records, any records of unsatisfactory performance that have been discussed with the employee and any documents that may be lost during the normal cycle of business.

Once these records are compiled, take the time to read them. All of them. Evaluate them for thoroughness, fairness, and compliance with any published internal processes. Oftentimes, particularly in cases of underachieving employees, a review of the records will reveal that performance evaluations are neutral, there are no records of unsatisfactory performance that were discussed with the employee, and there are no discipline records. This may cause you to reconsider the decision to terminate or, at the very least, assure that, in the future, your management team is more disciplined in its record keeping.

2. Is the decision being made on facts, not inference, suspicion or emotion?

Over the years, I have consulted with numerous employers that were sued as a result of terminating an employee. As I reflect back on these cases, the majority resulted in litigation because the employer allowed rumor or emotion to dictate rather than the facts. While it may feel cathartic to tell an employee, “You’re fired! No, you are double fired, and so are your wife, your children, your neighbors, your pastor, and your grandmother!”, it rarely leads to a productive dialogue. Decisions to terminate that are not grounded in fact, rarely involve a clean parting of ways, and, more often than not, result in attorney or administrative agency involvement.

3. Is the decision maker or decision-making group aware of all critical facts?

If your company is the subject of a lawsuit arising out of a termination, rest assured that a competent attorney will have all the facts at their disposal that relate to their client and the manner in which others within the company have been treated. The failure to communicate critical facts to decision makers creates the perception of bias, unfair processes, and the suspicion that the action taken was not based on legitimate business criteria.

4. Have other options been considered and rejected?

Are there other options that have been used with other employees under similar circumstances? If so, why are they not being used now? Consider whether other options, such as a transfer, demotion or suspension, may be just as effective as a termination. In most cases, termination does not conclude the process. A new employee will have to be hired, trained, and learn your institutional processes. All of this involves the allocation of time, financial, and human resources.

5. Has anyone taken the time to communicate with the employee?

In an age of email, instant messaging, text messaging, and time pressures, face to face communication has become a lost art. Some of the questions that should be asked are:

a. Does the employee fully understand the job requirements and behavior standards?

b. Have you explained where the employee failed to meet job performance or behavior standards?

c. Has the employee received at least one warning of possible dismissal and are you sure the employee understood the warning? Was a record kept of the warning?

6. Has the employee been given sufficient time and opportunity to correct any performance and behavior deficits?

An employee that has been placed on a performance improvement plan should be given the opportunity to perform in accordance with the goals contained in the plan. That means that the goals must be realistic and the employee should have access to internal resources and coaching so they have every opportunity to succeed. Generally speaking, an employee that has been given a fair opportunity to correct their performance and has failed, will understand that discharge is a necessary step.

7. Has the employee’s story been heard?

It is easy to make a decision if all your information comes from one source. That is why it is important to hear the employee’s story and consider the facts from their point of view. Consider whether the employee has personal difficulties, special situations, or any other mitigating factors. By taking this approach, not only will you have a fair process but one that appears fair. In addition, this can help identify any areas where you may have a legal duty to act.

Since terminations are rarely events that are devoid of emotion, it is my preference to ask the employee to provide a written report of events. This assures you have a written record of what you were told and avoids, or at leasts minimizes, future disputes over what you were told.

8. Have you thought about the goose and the gander?

One of my mother’s favorite phrases was, “What is good for the goose, is good for the gander.” Of course, as a young child I had no clue what a gander was but I knew that this meant that she would be fair in every respect. Nevertheless, this old saying is one that employers should keep in the back of their mind when making a termination decision. I can tell you, from having represented employees, that one of the first things an experienced employment lawyer will examine is the manner is which your company has handled similar circumstances. If it turns out that a similarly situated male employee received a suspension while a female employee was terminated for the same conduct, your company may find itself on the receiving end of a gender discrimination lawsuit. Consistency in the application of policies, processes and discipline is a vital component to any termination decision.

9. Are there issues of discrimination or unfair treatment that may need to be addressed before a final decision is made?

Unless you are faced with issues of serious misconduct, make sure that any reports of discrimination, unfair treatment or retaliation have been thoroughly investigated and, preferably, concluded, before going forward with a discharge. On occasion, I have seen employers decide to terminate an employee while there is a pending complaint of harassment or discrimination. Their reasoning has been that the employee is an “at will” employee and, thus, can be terminated at any time and for any reason. While that may be true, courts will look to the temporal relationship between a decision to terminate and a report of harassment or discrimination. The closer in time these two events are, the more likely a judge or jury will conclude that your actions were the product of illegal retaliation rather than a desire to part ways with someone that did not perform adequately.

10. Have you planned how the dismissal will be communicated to the employee?

Once you have decided to part ways with an employee, you will need to consider when to communicate the decision, where to communicate the decision, who will deliver the news, what the employee will be told, how their employment will be concluded and to define the parameters of the exit interview.

a. When and where

Give some thought to timing and privacy. Once an employee is terminated, they should not have to return to work, nor should they have to suffer the embarrassment of having to pack their personal belongings in the presence of their coworkers. A better approach is to select a time and location that will eliminate or minimize the employee’s personal interaction with coworkers. Complete the process, allow the employee to leave, and have their personal belongings delivered via a delivery service.

b. Who

Select someone who is respected and is considered detail oriented so you can be assured that all necessary items will be addressed.

c. What.

It would be nice if a termination could be as simple as a quick, “You’re fired.” While that may work for a mom and pop business, that approach will only create difficulties for larger employers. You should be able to articulate the reason for termination, discuss wage and benefit information, advise when the employee will receive their final paycheck, when they will be paid for any accrued but unused personal time off, have benefits forms available, obtain contact information, arrange for the return of company property in their possession, be prepared to discuss any post employment restrictions, such as non-compete agreements and confidentiality agreements, obtain passwords, and conduct an exit interview. In the event the employee is unable or unwilling to complete an exit interview, make an appropriate notation in their file.

Finally, avoid meaningless statements such as, “I understand how you must feel.” No you don’t and you will never understand how this employee feels. Statements of this nature should be avoided, since they only engender ill feelings on the part of the departing employee.

11. Would a jury-six months later-conclude that the treatment accorded the discharged employee was unquestionably fair?

If, after review of these eleven questions, you continue to believe discharge is the correct decision then proceed with the discharge.

2008-06-04T15:28:00.000-07:00

Employer Alert

Washington Employers should be mindful of the following laws that are going into effect.

June 12, 2008

Leave for Military Spouses:

This law applies to all employers, regardless of size and allows 15 days of leave to the spouse of individuals that are on leave from military deployment or before and up to military deployment. To qualify for this leave, an employee must work a minimum of 20 hours per week and provide the employer with notice of their intention to take leave within 5 days of receiving official notice that the employee’s spouse will be on leave or has been called to active duty. For more information on this law, click the following link to access the Department of Labor and Industries website: http://www.lni.wa.gov/WorkplaceRights/files/FamilyLeave/2008-04-01LeaveForMilitarySpouses.pdf

July 1, 2008

Mandatory hands free cell phones:

All drivers in Washington will have to use a hands-free cell phone while driving. Practically, this is a good time for you to adopt a new cell phone policy that addresses text messaging and use of cell phones. For companies that provide cell phones to employees, consider purchasing hands-free devices for use with existing cell phones.

Employers should consider adopting handbook policies that address the issues raised by these laws.

Nothing in this Blog should be considered legal advice or to form an attorney client relationship. The observations made in this Blog are general in nature and should not be used as a substitute for legal advice that is tailored to your particular circumstance.

2008-05-29T13:45:00.000-07:00

Wednesday Excuse on a Thursday

I don't know about you but 4 day workweeks throw my schedule out of whack. I love the 3 day weekend that comes along with it. Unfortunately, when I arrive at work on Tuesday, my brain says Monday. So even though its Thursday, I'm feeling Wednesday. That's my excuse and I'm sticking with it.

2008-05-21T22:20:00.000-07:00

Wednesday's Excuse

Last week, I was trying to find a good excuse while at the Mid-Town Station Coffee House and Wine Bar in Sumner. The owner promised that she would have a good excuse for me this week. So here it is:

I couldn't make it in because I was eating caramel cheesecake.

Hey, I don't make the excuses, I just report them.

2008-05-20T14:08:00.000-07:00

More thoughts on Telecommuting

As gas prices continue to spiral upward, telecommuting is an excellent way for a company to lessen the economic impact on employees and to be viewed as a good corporate neighbor by decreasing the carbon footprint of your workforce and traffic congestion.

On a personal note, I could write for days about the benefits of a decreased commute or not having a commute at all. A little over 6 months ago we moved our office. At the time my commute was what I would consider in the average range here in the Puget Sound, about an hour to an hour and fifteen minutes each way. Now I am about 6 miles from home which takes about 10 to 15 minutes, depending on the time of day. What prompted the move. Many things. First, I was spending about a work week commuting each month. Second, technology has reached a stage where it is no longer necessary for me to be in close physical proximity to my clients. With web conferencing, Blackberrys, and email, I can be just as accessible to clients as I was before. With the exception of depositions, my interface with employers was typically at their business location and with employees once in my office for the initial meeting. Traffic in the Puget Sound had already forced us to be more creative and efficient in manner in which we interacted with clients. Third, I am blessed to have some great clients. When I shared my decision with them, they completely endorsed the move. Nothing is without its hiccups. After I made the decision, I was faced with possibly losing one staff person who has been with me for almost 10 years. That was unacceptable. Since I am of the mind that nothing is more valuable that a loyal and hardworking employee, I chose to explore telecommuting with this employee. It has worked wonderfully. Now this employee works remotely and comes to our office one day a week. Sure there are times when I need that person here more than one day, but I make sure it is the exception rather than the rule.

I wish I could say that my decision to move my office was prompted by my incredible ability to forecast future events such as gas prices and a general economic downturn. It wasn’t. These are the things your employees are facing today. The other day, while driving to the office, I was listening to a local radio station. The DJ asked listeners what changes they made to account for the recent increases in gas prices. I was surprised to hear a number of callers state “I quit my job and found one closer to home.” It would be a shame to lose a valued employee just because you did not take the time to think outside the box.

In this post, I will address some of the things that should be considered when you decide to permit telecommuting.

1. Telecommuting is not a reward.

Some positions will lend themselves favorably to telecommuting. Others will not. Additionally, you have a business to run. That means you probably can’t have all your employees out of the office at the same time. As a consequence, you will need to determine which positions qualify for telecommuting and the criteria to be used to select those who will be permitted to telecommute. In plain english that means that if a particular job will permit telecommuting, then all employees, who meet the criteria, should be eligible to participate in the program that option.

2. Have you given consideration to the privacy rights of the employee?

Often employers forget that when an employee telecommutes they are working from their home. As with any position, there may be occasions when you will want to have direct interface with the employee or view their work area to assure they are being as efficient as possible and are not engaged in actions that could compromise confidential information. You should give consideration to how this will be handled.

Some employers address this by creating policies that identify when and under what circumstances, they will perform a home visit. I have several friends that telecommute and I am sure there are occasions when they are working on their laptop wearing very relaxed attire.

Also, if there have been certain problems in the past, such as a sexual harassment report made by an employee against their supervisor, it is not advisable to have that person conduct the home visit. Use common sense and be mindful of common courtesy.

2. Remember wage and hour laws apply?

I have a friend who is always looking for a 2-fer. I will share one of Rod’s Rules with you. “There are no 2-fers in life and there certainly aren’t any in the workplace.” What I mean is that you cannot disregard wage and hour laws because an employee is telecommuting. It is your responsibility to made sure that employees, who are working off site, accurately record their time. The failure to do so could put your company on the wrong end of a wage and hour lawsuit. Time can be tracked manually, or an employee can be required to log into your company server and electronically record their time.

3. What about confidential and proprietary data?

One of the reasons companies have a business location is security. The concept of security has taken on new dimensions in the Internet age. At a minimum, your employees should have a refresher course on what your company considers proprietary and confidential, the steps that must be taken to protect proprietary and confidential data, and the consequences of failing to adhere to your confidentiality policy.

My preference has always been that an employee should only perform work on a company computer with proper encryption. Do not assume that an employee, working from home, will always use a hard wire Internet connection. In many instances they will prefer to use a wireless connection. Raise that issue with your employees and confirm their wireless signal is encrypted. Always consult with your IT department about security measures that should be in place. Finally, consider providing a shredder and requiring all hard copies to be shredded or returned to your business location.

4. Consider the workers compensation implications?

Yes, employees are covered by worker compensation while they are working at home. Any lawyers reading this post, are now creating hypothetical nightmare scenarios. For example: Joe is talking to a customer on his cell phone, while he is in the kitchen making a PB&J sandwich. As he is returning the jelly to the refrigerator, he drops the jar, slips on the jelly, falls on the floor injuring his back, impaling his arm with the cell phone antenna, and, in the process, inconveniencing your customer. Is he covered under workers compensation laws? The answer in Washington, is probably, since our state does not have a PB&J defense. The answer might be different if Joe injured himself while he was not engaged in a work activity. To some employers, the mere thought of this happening is enough to drive them to a point where they insist that an employee only engage in work activities in a specified area of the home. Great idea but, people will be people. Use a good dose of common sense and, in most instances, you will be just fine.

My experience has been that employers spend more time worrying about the potential, yet to happen, worker’s compensation claim than is merited. Instead, employers should spend that time educating employees on the manner in which worker’s compensation claims should be reported and insure their employees understand that all claims should be reported promptly, regardless of where they arise.

5. Have a telecommuting policy and agreement.

Besides salary, some studies have shown the ability to telecommute is the second most important factor in attracting and keeping top talent. Unfortunately, employers tend to jump on the telecommuting bandwagon before they have policies in place that accurately communicate their expectations and the limitations of their telecommuting policy. At a minimum, the telecommuting policy should address work hours and availability, confidentiality and security, equipment to be provided and who will bear the risk of loss in the event that equipment is damaged, how performance will be measured, and the manner in which work hours will be recorded and reported. In addition your policy should reserve, in the employer, the sole discretion to revoke this policy with or without notice. The policy should be signed by your employee.

For those that are new to my Blog, the picture above is my telecommuting picture.

Nothing in this Blog should be considered legal advice or to form an attorney client relationship. Legal matters often turn on specific facts. We encourage you to take your legal problem to a seasoned lawyer who can provide you with her/his opinion on the best course of action to follow.

2008-05-14T19:10:00.000-07:00

Wednesday's Excuse-Late Edition

So I’m sitting at the Mid-Town Station Coffee House and Wine Bar. We just call it the Mid-Town. Great restaurant by the Sound Transit Station in scenic downtown Sumner, Washington. The nice thing about a city like Sumner is that you tend to run into people that run the small businesses that are the backbone of our country. The Mid-Town is where a lot of them hang out. It’s also a good place to get some free Wi-Fi access, a great Northwest cup of coffee and half price nachos during happy hour.

As I’m sitting here, I run into one of the local business owners. He asks what I’m doing. I tell him, “It’s Wednesday and if I don’t get a real life work excuse posted on my Blog, I’ll have to post a Thursday’s excuse for not posting a Wednesday excuse which will make two excuses in one week.” It was obvious he didn’t get it. That’s ok. So I asked one of the servers for a good excuse she has used. Probably wasn’t a good idea. After all, if it works, you don’t want to clue your boss in who might be reading this Blog. We agreed to invoke the attorney-client privilege. So her excuse is, “I never call in sick unless I’m really sick.” Nothing. Undeterred, my server asked the cook. Still nothing. I’m starting to get a little desperate. Then I remembered, I had an excuse just in case I ran into a problem. It’s not great, but here’s Wednesday’s excuse:

I am stuck in the blood pressure machine down at Wal-Mart.

By the way, if you happen to drop in at the MidTown, tell them you read about them on Rod the lawyer's Blog.

2008-05-07T18:16:00.000-07:00

Storm Clouds at The Weather Channel

The Weather Channel is currently embroiled in litigation concerning the outcome of a sexual harassment and retaliation arbitration in which the arbitrator issued what one media outlet has described as a “blistering arbitration ruling in favor of a former anchorwoman...” Presently, The Weather Channel is attempting to keep the results of that arbitration cloaked in secrecy.

Here are the facts as I understand them:

The plaintiff (Hillary Andrews) went to work for The Weather Channel in 2003 and eventually was paired with a male anchor (Stokes). Andrews replaced another female who had reported sexual harassment by Stokes. According to Andrews, her predecessor suffered daily abuse by Stokes and would hide in her dressing room in between shifts to avoid Stokes. The predecessor was eventually let go after five (5) reports to management complaining of Stokes’ conduct. For a more detailed description of what Andrews’ and her predecessor endured click here.

Andrews alleged that Stokes was “sexually attracted to her and romantically obsessed with her.” Stokes would make crude sexualized comments such as, “Will you lick my swizzle stick?” In addition, he would grill her on her personal intimate life, including her sex life with her former husband. Stokes would ask “the same invasive questions about her sex life over and over again, non-stop. He would interrogate her for at least an hour during the three-hour time period between our shows on both Saturday and Sunday. He was relentless in his questioning; he would press incessantly, asking the same questions over and over.”

Andrews also alleged that Stokes would stare at her chest, follow her into her dressing room and invade her personal space. He would make some of the following comments:

a. “It tortures me when you wear those heels and skirt.”
b. “You are the most attractive woman I’ve ever worked with.”
c. “I find you very attractive.”
d. “You know I find you attractive.”
e. “I could win you over if I wanted to.”
f. “I know you are attracted to me, tell me, just say it.”
g. “ Sometimes I think about what it would be like.”

Andrews rebuffed Stokes. Once it became apparent to Stokes that he was not getting anywhere he began to sabotage Andrews on the air.

At first, Andrews was reluctant about reporting to management because she knew of what happened to her predecessor and she knew managers would speak of “putting up with Bob.” When she finally requested a different partner, she asked her supervisor, “Do you need me to tell you why?” Her supervisor responded, “No, I understand.”

After reporting this incident to The Weather Channel and advising that she would no longer tolerate Stokes’ abuse, Ms. Andrews received poor job assignments. Later, she would learn that her contract would not be renewed.

Andrews alleged that The Weather Channel failed to take action on her claim because Stokes had high ratings and was popular with viewers. The Weather Channel lost this case in an arbitration proceeding in which the arbitrator was highly critical of the manner in which this case was handled. Stokes was fired after the arbitration.

Lessons Learned:

When you have a problem, address it head on.

From the facts of this case, it is clear that the employer was aware of Stokes’ conduct but chose not to be proactive. Although there may be some reluctance in taking action when a highly placed or public employee has engaged in inappropriate conduct, put those concerns aside. You have an obligation to address those problems. Handling events of this nature always becomes more complex as the size of your company grows. In small companies these events can be handled discreetly. That luxury that is not available to larger publicly-held entities who have reporting requirements and risk, in today's volatile economic climate, having the price of their stock tumble with the disclosure of allegations of harassment or discrimination by a major figure within the company. In many of these cases, the signs were present, but no one wanted to be proactive.

Handling the complaint saves you money and sends a message.

One of the great myths is that employers who do the right thing and address sexual harassment in the workplace, will get sued. My experience has been that most employees only come into a lawyer’s office once it appears their employer is not willing to address a problem or they perceive they are not being treated fairly.

By being proactive, more often than not, you can stop a claim in its tracks. In addition, you will save the hard costs of litigation which can run upwards of several hundred thousand dollars in defense fees and costs, as well as, the soft costs of litigation. By soft costs I mean the general loss in productivity that is experienced, the loss of time associated with the retrieval of data as the parties exchange information, and the loss of time associated with participation in litigation related events such as depositions and trial. Don’t misunderstand what I am saying. You should never roll over just because a claim is made. However, if you determine unlawful harassment or discrimination has occurred, be firm, consistent, and make it clear to all concerned that you intend to stop the problem. In doing so, you will send a message that your company does not tolerate this type of conduct. This is one time where the rumor mill will work to your advantage. Consider the following. Joe is fired for sexually harassing female coworkers. When his replacement is hired, one of the first questions to coworkers will be, “What happened to the person who had my job?” What do you think Joe’s coworkers will say?

Think about how the actions you take today will look to a jury that is evaluating the case with the benefit of 20/20 hindsight.

Always take considered actions. Not only should you be fair but you should appear fair. In The Weather Channel case, perhaps someone should have thought of how their actions would be perceived at a later date. In many cases, a report of harassment or discrimination may not have the necessary components needed to succeed in court but, the employer will act in such a way that gives rise to a claim for retaliation.

Nothing in this Blog should be considered legal advice or to form an attorney client relationship. Legal matters often turn on specific facts. Nothing can substitute for the advice of a seasoned legal professional who can address your particular legal needs.

2008-05-07T10:13:00.000-07:00

Wednesday’s Excuse

“I won't be able to come in today. It seems that I have some unknown contagious disease; but I'll be fine on Monday."

2008-04-30T13:00:00.000-07:00

Wednesday’s Excuse

This is an excuse that will only work in the rainy Pacific Northwest:

“Dude, it’s sunny outside and I’m Vitamin D deficient!”

2008-04-30T10:55:00.001-07:00

USERRA Claimant does not have to pay filing fee.

In most instances, individuals, that want to have their case decided by the court, are required to pay a filing fee at the time they file their lawsuit. Robert Davis brought a lawsuit against his employer, Advocate Health Center, for a violation of USERRA (Uniformed Services Employment and Reemployment Rights Act). When he filed his lawsuit, he asked the court to waive the filing fee because USERRA excused him from paying the fees and costs of litigation. The court disagreed and gave him 25 days to pay his filing fee or his case would be dismissed. Undeterred, Roberts waited for the 25 days to expire and filed an appeal with the 7th Circuit Court of Appeals (The federal court that handles appeals from federal trial courts in Wisconsin, Illinois and Indiana. To see how the federal courts are divided by circuits click here).

On appeal, the 7th Circuit Court of Appeals reviewed USERRA and observed the statute provides that “[n]o fees or court costs may be charged or taxed against any person claiming rights under this chapter.” The Court noted that there really isn’t much case law on this issue, but in the case law that exists, including those cases interpreting the rights of members of the armed services under other statutes, it is clear that Congress intended to lessen the costs of litigation for service members and veterans, thereby allowing them to start a lawsuit without paying a filing fee. Roberts case was reversed and reinstated.

Nothing in this Blog should be considered legal advice or to form an attorney client relationship. The information provided is general in nature and is not a substitute for the advice of a legal professional who can address your unique legal circumstance.

2008-04-29T19:10:00.000-07:00

Gas Up + Economy Down = Dissatisfied Employees

Recently, I had the distinct pleasure of gassing up for the bargain price of $3.93 a gallon. As I was getting ready to leave, I was approached by a young man that just paid a whopping $137 to fill up his diesel pickup truck. It was a beautiful truck but it wasn’t $137 worth of beautiful. If the media is correct, gas prices could easily exceed $4 a gallon by summer, as they already have for diesel fuel.

As I left the gas station, I could not help but think of how the increase in gas prices has impacted everyone, especially those individuals that have to live in the distant suburbs because they can’t afford housing closer to work. Those employees are now considering whether it makes sense to take a lesser paying job, nearer to their home, because wages are just not keeping up with the escalating price of gas and food.

Sure, I understand that when the economy is down it is difficult, if not impossible, to give your employees a pay increase. On the other hand, by not being proactive and recognizing the financial hemorrhaging that many families are undergoing, you are at risk of losing valued members of your workforce. With their departure you will also witness the loss of the time and money invested in training these employees, not to mention the time and money you will invest in finding and training suitable replacements.

Perhaps, now is a time to rethink how you conduct business. Maybe some of the following will help you hold on to your employees until the economy takes an upturn:

1. Have your employees work 4 ten hour days. By eliminating one day of a 40 mile round trip commute you are saving your employee about 2 gallons of gas or $7 a week, that translates into roughly $364 annually.

2. Conduct meetings over the web. The technology we dreamed of during the “dot com” era, is finally here. Many if not all meetings can be conducted over the web through web based services such as Yugma, WebEx and GoToMeeting.

3. Consider telecommuting for some of your workforce. Many employees can work just as well from home as they can in the office. (For some reason, allowing your workforce to work in their sweats and t-shirts makes them more productive.) Most of the concerns that employers with telecommuting relate to accurately tracking work time and confidentiality. The former can be addressed by tracking the time that employees log into and off of your server. If that doesn’t work, I remember back in the day we had this process that worked extremely well in tracking time. It was called “pen and paper.” In addition, you will have to address the issue of proprietary and confidential information. This again, is not difficult. Besides having happier workers, there are other benefits to your company. Depending on how often you permit employees to telecommute you can realize savings in real estate costs, energy costs and increased employee productivity.

In my next post, I will give you some of my tips on telecommuting. At the end of the day, the business case for keeping your workforce will probably out weigh any initial inconvenience or financial outlay. Till then, let’s keep thinking “outside the office walls.” By the way, if you are wondering why there is a different picture in this post, that is my telecommuting attire.

Nothing in this Blog should be considered legal advice or to form an attorney client relationship. The information provided is general in nature and is not a substitute for the advice of a legal professional who can address your unique legal circumstance.

2008-04-24T14:43:00.000-07:00

After speaking at two seminars this week, I decided that I wanted to republish a post that I made about a year ago. Back then it was called Top 10 Handbook Mistakes. In the past year, I have reflected on this issue and added some additional mistakes and retitled it Top 10 Handbook Mistakes Plus 3.

Top 10 Handbook Mistakes PLUS 3

Is it a good idea to have a company handbook? Absolutely. A properly drafted employee handbook allows management to communicate their expectations to their workforce. Unfortunately, all handbooks are not created equal. What works well for one company may not work for another. To be effective, your handbook should be tailored to meet the needs of your business. More often than not, less is more when it comes to drafting a handbook. Unfortunately, most employers only become concerned about the deficiencies in their handbook after a lawsuit is filed. Once the lawsuit is filed, it’s too late.

So let’s take a look at what I call the top 10 handbooks mistakes, plus 3.

1. The “form” or plagiarized handbook.

Form handbooks are just what they claim to be: forms. They are not designed to meet your business needs. Many companies will buy a “form” handbook, print it out, and never read it. After all it must be “legal” if they sell it at the local office supply store, right? Worse yet, companies will decide to create their own handbook by plagiarizing all or portions of handbooks used by competitors on the theory that if they use it, it must be “legal.” These approaches are recipes for disaster.

For a handbook to be effective it must communicate management’s expectations to its workforce . In addition, management needs to appreciate that it will be held to the statements made in the handbook. Accurate expectations cannot be conveyed unless management has read the handbook and considers what will work for the way it does business. For example, if the handbook contains a progressive discipline policy but management will not follow it or will use it only in the most extreme circumstances, then the policy is not only meaningless but may be used against you in the context of a wrongful termination lawsuit.

2. Failing to have a policy that addresses discrimination and harassment in the workplace and that provides a reporting mechanism.

We all know that discrimination and harassment are prohibited. Hopefully, you know that your handbook should address these issues. I never cease to be amazed at how many handbooks contain prohibitions against workplace discrimination or harassment, but never instruct their workforce on how and to whom a report of discrimination should be made. As a consequence, these employers deprive themselves of potential defenses in the event of a lawsuit or administrative agency investigation and increase the likelihood that an employee will consult an attorney to remedy their problems.

3. Failing to have an “at will” disclaimer.

If your employees are truly at will employees then say it in your handbook. More importantly, make it clear that as an at will employee they are free to terminate their employment at any time, for any reason, with or without notice, just as the company is free to terminate the employment relationship at any time, for any reason, with or without notice. Generally, “at will” does not mean an employee can leave at any time and for any reason, as long as they give two (2) weeks notice.

This disclaimer, like all critical policies, should be signed and dated by the employee with an acknowledgement that they have read and understood the policy.

4. Failing to reserve the right to change the policy without notice.

Let’s face it, employees look at the statements contained in the handbook differently than you do as the owner of the company. To employees, these are promises. To you they are considered guidelines to follow but you don’t consider them as etched in granite. If that is the case, then tell your employees that these policies are guidelines and can change at any time without notice.

5. Having a probationary period.

When I see the handbook from a company that tells their employees that they have a probationary period, my first question is, “Are your employees at will?” I understand the rationale for a probationary period. From the employees’ perspective, the probationary period is a period of at will employment during which they can be terminated with or without cause. As a result, once the probationary period is completed, employees believe the only reason they can be terminated is for cause. If your employees are truly at will employees, you can terminate that employee at any time, for any reason, with or without cause, as long as you don’t terminate them for an illegal reason. The probationary period is unnecessary and confusing to your workforce.

6. Failing to leave wiggle room in the discipline policy.

Discipline policies can be helpful in conveying your expectations to the workforce. Many discipline policies try to classify offenses as minor and serious. The latter will result in termination and the former will not. The question then becomes, “How many minor infractions does it take to constitute a major policy violation?” By being too detailed, again you are placing yourself in a box. Other employers include a laundry list of acts that will result in immediate termination, but never enforce the policy or, worse yet, they do not state the list is not all inclusive.

The same holds true with regard to progressive discipline policies. Many employers have elaborate progressive discipline policies. Usually, the problem is not with the policy but with its implementation. If there is a concern about policy implementation, you would be much better off to avoid having such a policy. Remember a good lawyer can use your failure to follow the policy against your company.

7. Failing to assure consistency between the policy and company practice.

Read the employee handbook. Read it again. Read it one more time. Give thought to the policies. Is the handbook internally consistent? Do the policies in your handbook mirror the way your company does business? If your answer is no to either one of these questions, you should rethink the policy or practice.

8. Failing to review your policies.

Now that you have an employee handbook, you must review it periodically to determine if it is consistent with the manner in which you conduct business or with applicable law. Your failure to review the employee handbook on at least an annual basis can be the recipe for a future disaster.

9. Making broad statements that make people feel “warm and fuzzy.”

The employee handbook is supposed to communicate your company’s expectations of employee behavior. It is not promotional material designed to tell your workforce about how great you are or how tolerant the company will be because “we are one big family.” Leave the “Rah Rah” statements for the company picnic and let the policy convey expectations and you will avoid heartache and financial exposure.

10. Making promises you don’t have to make.

Many employers assume that all employers have to comply with all employment laws. This is incorrect. Before you make promises in a handbook, consider whether you are legally obligated to make those statements or whether those promises are going to further your business purposes.

11. Failing to have general disclaimer.

Employees consider the handbook to be contractual in nature. Employers consider these policies to be guidelines. To avoid a potential claim based on the handbook, cautious employers have handbooks that state the handbook is merely advisory and should not be considered a contract of employment. Without this type of disclaimer, defending your actions may be more difficult at a later date.

12. Failing to pay your employees to review the handbook and sign all key policies.

I know this is where I will catch a lot of flak. Remember, when I see problems arise in a handbook, it is usually after a lawsuit is filed. It has led me to conclude that employers should rethink how they handle the processing of handbooks. I know from experience that employee acknowledgments on key policies can make or break a case. When employee verify they have read and understood the policy, it becomes difficult, at a later date, for them to claim, they never saw the policy and really did not understand it. Most employers, when processing their employees, hand them all their new hire documents and ask them to sign key documents and leave it at that. Once a lawsuit arises, the employer has no proof the employee has read the handbook and the employee testifies that key policies upon which a defense may rest were never brought to their attention. By being penny wise and pound foolish, the employer may have deprived themselves of key defenses or made their assertion more difficult. Instead, a better practice would be to require your employees to read the handbook on the clock, initial the bottom of each page indicating they have read and understood the page and sign all key policies again verifying they have read and understood the policy. If all your policies are maintained electronically, then have your employee sign on to your intranet, using a unique identifier and password, and make these acknowledgments on line.

13. You can pay your lawyer now or you can pay your lawyer later.

Many years ago, Fram had an oil filter advertisement. In the commercial, a mechanic would tell his customer, “ You can pay me now or pay me later.” In other words, by being cheap and failing to install a good oil filter a customer would end up paying for costly engine repairs in the future.” The same holds true with a handbook. Unless you have a lawyer on staff, have the handbook reviewed by your lawyer to determine whether it is compliant with state law and federal law and whether you are making makes promises that need not be made. Yes, it will cost you money. It will, however, be far less expensive than defending a lawsuit.

Nothing in this Blog should be considered legal advice or to form an attorney client relationship. Legal cases, often, turn on specific facts. Please do not use this Blog, or the information contained in this Blog, as a substitute for sound legal advice given by an experience legal professional.

2008-04-23T23:29:00.000-07:00

Wednesday's Excuse

Can't make it in. I have a chance of filling in for someone on jury duty.

2008-04-19T12:01:00.000-07:00

Dentist gets hit for doing more that just flossing

While enrolled in the Bryman College dental assistant program, Candace Wahl was placed in an unpaid externship at Dash Point Family Dental Clinic. The clinic was co-owned and operated by Dr. Don S. Moore. Candace did well in her externship and received two (2) favorable written evaluations. According to the clinic’s office manager, Dr. Moore liked to work with her.

After completing her externship, she was hired by Dr. Moore’s clinic in a full time capacity. A few months after her hire, the doctor began to make inappropriate and sexually explicit comments to Candace. These comments included discussions about his wife’s preferences during sex, his physical attraction to Wahl’s mother (Wahl’s mother was a patient), comments about oral sex, his sex life and the size of his penis. In addition, the doctor would comment about the bodies of female patients and employees, including Wahl.

In the final months of her employment, the doctor’s sexual comments became more graphic. His office manager, testified that she heard the doctor’s comments. She also testified that Dr. Moore demanded that the office manager perform oral sex on him. He also asked the office manager to buy condoms so he could have sex with her on the conference room table. Apparently, this conduct caused the office manager to warn externs about Dr. Moore and describe him as a “pervert.”

Candace, like most young people in this circumstance, tried to ignore the doctor and just do her job, however, the doctor would not stop. On Monday, February 23, 2004, Dr. Moore told Ms. Wahl that he wanted her to watch him masturbate. Later that day, he asked her to accompany him to the darkroom so he could teach her how to duplicate patient films. While in the darkroom, Wahl could smell lotion and hear the doctor masturbating. The doctor also asked Wahl to stop what she was doing and turn around so he could “finish faster.” Wahl refused to turn around and told the doctor that what he was doing was wrong. This incident ended when Wahl’s wife, a dental hygenist at the clinic, knocked on the darkroom door. Wahl quit the following Monday. She would later report this to the police.

After Wahl quit, Dr. Moore instructed the office manager to write a letter denying any sexual misconduct occurred between the them, that is the doctor and the office manager. The doctor also directed the office manager to write letters of reprimand, back date them and place them in Wahl’s personnel file. The doctor would later admit to back dating the documents but claimed the letters accurately reflected violations of clinic policies.

At trial, the judge found Dr. Moore’s explanations not credible and felt that he fabricated events. The trial judge found that Wahl had been wrongfully discharged in violation of Washington’s public policy against gender discrimination. The appellate court agreed with the trial judge explaining that an employee can be terminated either expressly or constructively. An express termination is one where the employee is told, “You’re fired.” Here the court felt that Ms. Wahl was constructively terminated (also referred to as constructive discharge) in that the doctor “made working conditions so intolerable that a reasonable person would have felt compelled to resign.” The court also held that, as a small employer, one that does not fit the definition of an employer under Washington Law Against Discrimination (employers with 8 or more employees), Dash Point Family Dental Clinic could be held accountable under Washington’s common law. For those interested in reading more about the court’s reasoning, click here.

The Bottom Line: At one time, some employers felt, that since they did not employ 8 or more people, they were immune from laws protecting our citizens against discrimination. That is not the case. While an employee that brings suit against an employer with less than 8 people, may not have the same arsenal of tools available, as they would if their claim were brought under the Washington Law Against Discrimination, they still are able to vindicate their rights in court.

I think we can all agree that the doctor not only crossed the line but went way over into the next county. Dr. Moore was fortunate that Ms. Wahl had this trial in front of a judge since the result in front of a jury would probably have been far worse.

Employers, when an employee leaves use common sense.

First, conduct an exit interview. That way you define the basis for their departure and any potential claims that might be out there.

Second, never, did I say Never? Well I meant, NEVER!!! Never recreate documents or back date documents. That only creates suspicion. I know there are times when employers fail to document an event or complete a form. If you feel a need to document an employee’s “sins” following their departure, then do it in a memorandum form, after talking to your lawyer.

Employees, remember that you have the burden of proving an intolerable workplace in the event you contend you were constructively discharged. The law presumes that you quit unless you were fired or laid off. This is important because your unemployment benefits could be denied if you fail to prove constructive discharge and it could also impact the amount you will be able to recover in a later lawsuit.

Nothing in this Blog should be considered legal advice or to form an attorney client relationship. Legal cases often turn on specific facts. Please do not use the information in this Blog as a substitute for sound legal advice given by an experienced legal professional.

2008-04-11T15:33:00.000-07:00

Correction

Many thanks to one of our readers who emailed me today to advise of an error in my post of April 9, 2008 @ 12:52 am. In that post, I stated that, the change in Washington law that allows leave for the spouse of an individual to be deployed or who is on leave from military deployment, goes into effect on July 12, 2008. That is incorrect. The new law is effective June 12, 2008. For more information on this law, click here

Nothing in this Blog should be considered legal advice or to form an attorney client relationship. The observations made are general in nature and should not be used as a substitute for legal advice designed to address your particular legal problem. Individuals are encouraged to seek legal counsel that can advise them based on their unique matter.

2008-04-09T01:08:00.001-07:00

Wednesday's Excuse

I won't be in to work today. My brain is full.

2008-04-09T00:52:00.000-07:00

Employer Alert: New Washington Leave Laws

The Washington legislature has passed two new laws that impact the workplace. These laws apply to all employers in our State, regardless of size.

The first allows leave for victims of domestic violence and their families. That law went into effect on April 1, 2008. Some of the key components of the law are:

1. The law allows victims of sexual assault or domestic violence to take reasonable leave, including intermittent leave, to receive counseling and/or medical care, as well as, to take care of legal and law enforcement needs.

2. The leave can be paid or unpaid. The employee can use accrued personal time off, sick, or vacation for this leave.

3. The leave also allows families members of a victim of domestic violence or assault to take time off of work to assist the victim obtain help or treatment. Family member is defined as child, spouse, parent, parent in law, grandparent, and person the victim is dating.

For more information on this law, click here

The second leave law goes into effect on July 12, 2008. This law allows 15 days of leave to the spouse of individuals that are on leave from military deployment or before and up to military deployment. To qualify for this leave, an employee must work a minimum of 20 hours per week and provide the employer with notice of their intention to take leave within 5 days of receiving official notice that the employee’s spouse will be on leave or has been called to active duty. For more information on this law, click here

Our recommendation is for employers to immediately adopt handbook policies that address the issues raised by these laws.

Nothing in this Blog should be considered legal advice or to form an attorney client relationship. The observations made are general in nature and should not be used as a substitute for legal advice designed to address your particular legal problem. Individuals are encouraged to seek legal counsel that can advise them based on their unique matter.

2008-04-04T17:43:00.001-07:00

EEOC holds Sunbelt Rentals Accountable

Clinton Ingram served our country in the United States Army. While in the Army, Ingram converted to Islam. After getting out of the military, he went to work for Sunbelt Rentals in Gaithersburg, Maryland. He started in October 2001, a month after the September 11th attacks. Ingram rose from the position of a truck driver to Rental Manager when he was let go in February of 2003.

Sunbelt allowed Ingram to use a private upstairs room for short prayer sessions, as well as, attend weekly congregational prayer sessions that took place between 1:00-1:45 p.m. on Fridays. It was clear that Ingram was a practicing Muslim. He observed the tenets of his faith by participating in the prayer sessions, he maintained a beard and wore traditional Muslim male headgear (a kufi).

Coworkers and managers were not tolerant of his faith. His coworkers called Ingram “Taliban”, “towel head”, ridiculed his appearance, challenged his allegiance to the United States, and suggested he was terrorist. On one occasion, an employee held a metal detector to his head. After the metal detector did not go off, the employee called Ingram a “fake ass Muslim want-to-be turbine wearing ass.” When his allegiance to the United States was brought into question by a coworker who asked, “are you on our side or are you on the Taliban’s side,” and who also stated, “if you don’t like America or where we stand, you can just leave,” Ingram responded that he was an American and a Muslim.

In addition to the verbal ridicule, Ingram would find his timecard hidden multiple times during the work day, especially on Friday when he would leave for 45 minutes to attend congregational prayer. Ingram was harassed about taking his prayer sessions and told by a manager that he wanted to be a Muslim so he could have eight (8) wives.

Sunbelt employees acknowledged, that due to the September 11th attacks, religious tensions ran high within the company and the country. In addition, the trial judge allowed Sunbelt customers, who were Muslim, to testify how they were treated at the Gaithersburg branch. Those customers testified that Sunbelt employees called them a number of derogatory names including “Bin Laden,” “Hezbullah,” “Ayatollah,” “Kadaffi,” “Saddam Hussein,” “terrorist,” and “sun nigger.

Sunbelt argued that the instances of this adverse conduct were limited, even though Ingram testified he was subjected to religiously intolerant conduct on virtually a daily basis. In addition, Sunbelt argued that it could not be responsible for the actions of coworkers since, once it learned of the conduct, it took prompt remedial action. While the Court acknowledged that Sunbelt could not be charged with “cleansing the workplace environment of all offensive remarks,” it could be held accountable for its failure to to take meaningful action to stop the actions of Ingram’s coworkers, as well as, for the conduct of its managers. In arriving at these conclusions, the Court was convinced that, in spite of the climate that existed in the United States immediately following the September 11th attacks, employees had the right to be free from religiously intolerant conduct in the workplace. The Court also felt the conduct, to which Ingram was exposed was not isolated or trivial in nature, but, instead, was sufficiently severe and pervasive to create a hostile work environment based on Ingram’s professed religion.

The Bottom Line: Regardless of the general environment existing within our culture, employers are required to assure their workplace is free from harassment and discrimination. Here, the prevalence of the harassment, management’s participation in the harassment and the failure to take meaningful steps to end the harassment caused the employer legal exposure. Claims of this nature should not be taken lightly. Employers should take care to address these claims in a timely and meaningful fashion. In this case, Ingram’s claims were bolstered by his repeated report of offense treatment by coworkers and management and the company’s apparent failure to take those reports seriously.

Nothing in this blog should be considered legal advice or to form an attorney client relationship. The information provided is general in nature. Nothing can substitute for a consultation with a legal professional who can address your particular legal concern.