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.

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.

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."

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!”

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.

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.

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.

Wednesday's Excuse

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

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.

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.

Wednesday's Excuse

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

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.

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.

Wednesday's Excuse

This excuse falls under the category of "if you don't have a good excuse, at least make your boss think you are being considerate."

"Work???...I didn't want to be late AGAIN....so I decided to call in sick!!!"

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 assist you with your legal problem.

AT&T CEO CAN’T FIND QUALIFIED PEOPLE

AT&T CEO Randall Stephenson is reported to be complaining about his company’s alleged inability to find qualified people to handle 5000 customer service positions being returned to the United States that were outsourced to India. According to Stephenson, AT&T is having difficulty finding people with the skill set necessary to handle the jobs. He goes on to state that, in some communities, the high school drop out rate is 50% and observes, "If I had a business that half the product we turned out was defective or you couldn't put into the marketplace, I would shut that business down."

Although I was unable to find the pay range for jobs that AT&T is trying to create in San Antonio, I did find a posting for a Customer Service Representative I in Lubbock, Texas. That job pays between $368.50 - $505.50 per week. That translates to an hourly wage of approximate $9.21 to $12.64 per hour. My suspicion is that most people, unless they have experience, will start at the lower end of that pay scale. In case the CEO hasn’t noticed, here are the hard facts:

1. At the time this post is made the gas prices in San Antonio are $3.07 to $3.12 a gallon.
2. A one bedroom apartment in San Antonio rents from between $615 to $888 per month.
3. Food prices and the cost of living, in general, are skyrocketing.

The Bottom Line: You don’t have to be a CEO to understand that sometimes it does not make financial sense to take a job even if it is for AT&T. Perhaps the solution is to pay employees a wage they can live on. Generally, that will increase the caliber of the job candidate.

Just in case you wondered, according to Forbes magazine, Mr. Stephenson’s earnings in fiscal year 2007 were as follows: base salary $1,158,583, bonus, $648,750, other long term compensation $20,174,651. Total earnings for the year: $21,981,984.

Nothing in this Blog should be considered legal advice or to form the basis of an attorney client relationship. Every legal matter turns on specific facts and nothing can substitute for the advice of a legal professional who has a understanding of the unique aspects of your legal matter.

More Biometrics in the Workplace

Technology has radically changed our perceptions of privacy. This change is evident with the manner we see Gen-Xers and Millenials treat their personal information on MySpace and Facebook. That same level of comfort with technology and openness with private information has entered the workplace.

Employers from McDonalds franchises, to Hilton hotels, to municipalities and to the U.S. Marine Corp are using biometrics to keep track of their employees' time. The information is then automatically sent to the payroll department. From the employer's perspective this can be a valuable tool in that it assures accurate payroll records are kept and, hopefully, minimizes their exposure to wage and hour claims. One employee's reaction, in an article published on www.wcbstv.com, was, "Psychologically, I think it has had a huge impact on the work force here because it is demeaning and because it's a system based on mistrust." (To read more click here)

Although I have read that some employers have taken biometrics to a new level. Apparently, these employers have installed biometric locks on the bathroom doors to monitor the amount of time employees spend in the bathroom. I would love to hear from employees and employers that use biometrics in your workplace and how you feel about it.

The Bottom Line: Technology is going to impact our lives whether we like it or not. The same technology that some find incredibly intrusive also makes it possible for individuals to telecommute and web conference. This is an exciting time in employment law because we are witnesses to a revolution in the workplace. As lawyers and human resources professionals, our world is being rocked as we grapple with new ways to address the issues created by the introduction of technology. I predict this will continue for some time.

Nothing in this Blog should be considered legal advice or to form the basis of an attorney client relationship. Every legal matter can turn on specific facts. Nothing can substitute for the advice of a seasoned legal professional.

Wednesday’s Excuse

I can't come into work today...my spirit guide says work is for losers!

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 problem.

Ohio Court rules private sex video not admissible

Kristina Conti, Emily Dutton and Shawna Smith worked for Spitzer Auto World. These employees alleged they were subjected to sexual harassment on nearly a daily basis. Ms. Conti alleged that two sales managers routinely viewed pornography on work computers and forced her to view pornography on a number of occasions that included acts of intercourse between men and women and women and women. Ms. Conti also alleged that a sales manager rubbed up against her and forced her to touch his buttocks. According to the employees, they were regularly queried about the type and color of their underwear, their private sex lives and their interest in different sexual positions.

At trial the employer convinced the trial judge to allow it to question Ms. Conti concerning a private sex tape made with her husband. The employer argued this evidence was admissible to show that Ms. Conti could not have been emotionally damaged by being forced to view pornography in the workplace. Ms. Conti was not allowed to present any evidence that the video was made by her husband without her consent or any other mitigating factors. After Conti lost at trial, she appealed.

The appellate court held that consensual sexual activities between a husband and wife cannot be used as a defense against sexual harassment which by definition is not consensual. The court felt the employer’s rationale would allow a complete stranger to pursue sexualized behavior toward a woman since she may consent to that type of behavior in the privacy of her home with her husband or significant other. As a result the appellate court felt Ms. Conti’s right to a fair trial was prejudiced and she was permitted to have a new trial, this time without the admission of evidence concerning her private activities with her husband which had no bearing on whether Ms. Conti was forced to view graphic pornography at work.

The Bottom Line: An employee cannot be sexually harassed if they have invited or consented to sexualized conduct. Here the employer was successful in convincing the trial judge to admit highly prejudicial evidence that had no bearing on the key inquiry of whether she was sexually harassed at work. The appellate court’s opinion may have been radically different had Ms. Conti shown the private home video to others, coworkers or otherwise publicized its existence.

This case also highlights that blatant sexual harassment continues in today’s workplace. Sometimes, given the attention that has been directed to sexual harassment over the past two decades, it is easy for human resources professionals to be lulled into a false sense of security that flagrant sexual harassment does not exist. Unfortunately, due to the ease with which sexually explicit material can be obtained, employers must be ever vigilant. Training on issues of sexual harassment, reporting procedures and proper use of company email and Internet access are a key component to minimizing an employer’s exposure. In addition, an environment must be created where employees and management are encouraged to report unwelcome conduct in the workplace.

Nothing in this Blog should be considered legal advice or to form the basis of an attorney client relationship. Every legal matter can turn on specific facts. Nothing can substitute for the advice of a seasoned legal professional.

Wednesday’s Excuse

My dog ate my car keys and we’re taking the bus to the veterinarian’s office.

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 problem.

March Madness and Your Business

According to the outplacement firm, Challenger, Gray and Christmas, during the next few weeks of March Madness, employers could see $1.7 billion in lost productivity. This productivity loss extends to employee participation in office pools, to employees that will spend up to 30 minutes of work time completing sports brackets to employees using work time to watch streaming video of games while using up their employer’s bandwidth. Following the Super Bowl, March Madness interferes with employee productivity more than any other sports event.

Technology has made it much easier for employees to abuse work time by following their favorite sports event. In years past, employees would have to duck out to a local sports bar to watch the game. These employees did not have the ability to download March Madness screen savers from questionable websites,access on-line gambling sites via the Internet, or download streaming video.

Some employers chalk off the loss of employee productivity and misuse of company resources as a cost of doing business. While this approach may be the path of least resistance, it is not without attendant risk. Employers that turn a blind eye to abuse of work time and company resources may find they inadvertently have created the perception that members of one gender are receiving preferential treatment, as well as, undercutting handbook policies that govern email and Internet usage.

March Madness, and similar events, may provide an opportunity to communicate your expectations to your workforce. This time can be used to refresh their memories of company policies governing misuse of time, email, Internet usage, participation in listservs and Blogs, and downloading. The benefit to be derived is twofold. First, it will require you to blow the dust off of those policies and determine whether they require updating. Second, by bringing these policies to the attention of your workforce, they, in turn, will not be able to complain when those policies are enforced.

The Bottom Line: Many workplace problems can be avoided by careful and regular communication of expectations to your workforce. Repetition has it’s benefits. Consider the Head On advertisement. I don’t need to repeat that annoying advertisement to make my point. The same holds true with workplace policies. You should not assume that your employees remember key points of your handbook policies. Periodic reminders to your workforce can make minimize future problems.

Nothing in this Blog should be considered legal advice or to form the basis of an attorney client relationship. Every legal matter can turn on specific facts. Nothing can substitute for the advice of a seasoned legal professional.

Wednesday's Excuse

As I was looking for a good Wednesday’s Excuse, I came across a web site that I have to admit takes the cake. The website, www.myexcusedabsence.com , purports to provide employees with “absence notes for every occasion.” As near as I can tell this company sells templates for employees to use in creating a fake doctor’s note, emergency room visit note, and, believe it or not, a funeral service absence note which includes a template for an entire funeral service.

Just a couple of thoughts. While this site may give employees ideas, these type of products tend to make employers less inclined to grant time off that is not mandated by law. It’s the old one bad apple spoils the whole bunch rule.

Sometimes it’s just best to step up to the table and own it. I would much rather have an employee tell me they are “just not feeling it today” than have an employee lie about a death in the family. In the case of the lie about the death of a family member, this will likely cause your employer, in a best case scenario, to lose all trust in you. In a worst case scenario, it will cause your employer to use all trust in you. In addition, coworkers who expressed their sympathy will feel betrayed. Some employers have reported that employees have had multiple grandparents die in a short span of time, sometimes on more than one occasion.

Nothing in this Blog should be considered legal advice or to form an attorney client relationship. The information provided is general in n