Crash Course in Employment Law - Free Seminar

The Not-So-Friendly Skies

A female Executive Jet employee complained about inappropriate behavior ("lewd," "raunchy," "sexualized banter," "pornographic emails," and at least one pinching incident) by male employees, which turned out to be (a) fabricated to a large degree (b) motivated by her desire for a transfer, and (c) a complaint about behavior she herself often initiated.

The airline investigated, discovered the misconduct was widespread among employees of both genders and - perhaps feeling it needed to do something - fired the male employees.

The men promptly filed a claim of gender discrimination with the EEOC, and later in court, alleging they were fired for behavior female employees engaged in with impunity.

The lower court dismissed the case, finding the female employees were not "similarly situated" (that is, comparing the male employees to the female employees was like comparing apples to oranges), because they had different supervisors.

The Ninth Circuit rejected that reasoning (pointing out the termination decision was made by the president of the company, not by one of the two supervisors), but accepted the district court's other basis for dismissing the case: No one complained about the female employees' behavior.

Anyone care to comment?

Reminder: September Deadlines

If you are a private employer with at least 100 employees (or are affiliated with a company that has at least 100 employees, other than a private club), and/or you hold government contracts or subcontracts over the threshold amount, your EEO-1 forms, VETS-100 and/or VETS -100A forms, are due by September 30.

Caveat (you knew there'd have to be a lawyerly caveat, right?): The statement above is a signficant oversimplification of the criteria. If you're not sure whether these requirements apply, please contact your lawyer!

Also, some of the healthcare reform changes went into effect on September 23, 2010. If you are unsure whether or which changes apply to you, contact your insurer.

October 7 Seminar: The Most Bizarre Employment Law Cases

This presentation by Shari Lane is part of the Commerce Company's 8th Annual Commerce Concepts Series, a series of informative and interactive presentations designed for employers, HR managers, and benefits coordinators.

Check out the series, which runs from October 7 through November 16, and includes discussions of social media at work, variable pay, workforce management, retirement plans.

Register: http://www.thecommco.com/ 1 (800) 203-8510 Series2010@thecommco.com
Cost: $15
Location: World Forestry Center

It's the Manager, Stupid - Guest Article by Bill Leslie

You Don't Bring Me Flowers Anymore

Amid bushels of bad news, the story about industry giant Hewlett-Packard Company contained a rare gem. No, I’m not talking about the most recent skirmish over the hiring of a former HP CEO by a long-time affiliate, I’m talking about a comment praising the (former) HP business model. The article said HP employees hope the search for the new CEO will focus on “a return to . . . principles enshrined in the HP Way. . . . an egalitarian management style that encouraged employee profit-sharing, flexible schedules, work/life balance and instructed managers to get out among the employees.” Analysts say HP seeks best qualities of ex-CEOs, available at http://articles.sfgate.com/2010-08-10/news/22212384_1_hp-dave-packard-bill-hewlett.

As layoffs and other cost-cutting measures have proceeded throughout the recession (and, let’s face it, before the recession), the connection between management and other employees becomes more and more tenuous. And that, I believe, is ultimately bad for the company as a whole.

The relationship between supervisors and those they supervise is much like a marriage. It starts off rosy, with high expectations about the value the employee can add, and the touted company culture. Flowers may or not be involved (I was so touched when, years ago, my employer of less than one month sent flowers to the hospital when I had an emergency procedure!). After a while, there are attendance problems, and attitude problems, and the alleged expertise turns out to have been slightly fudged, the “flexible schedule” turns out to mean you can get out of Saturday work-days if you have a doctor’s note, and the company scales back its perks to donuts on Friday. Just as in a marriage, what started out with love songs and poetry turns into: “You don’t bring me flowers anymore.”

In my opinion, many of the disputes between employers and employees stem from a soured relationship based on a belief by the employee that she is not valued, and by the employer that the employee cares only about herself, not about the business. This is why I said that the removal of management from the workforce is damaging to the company: the long-term consequences can be significant.

So, the situation is as common as divorce. But is it unavoidable? I don’t think so.

I said earlier in this post that employment is like a marriage. In a good marriage, both partners can speak freely—including offering suggestions and constructive criticism. Each partner feels his/her needs and preferences are important to the other partner. And each partner suffers when the budget is tight, and shares the bounty when things are going well—and therefore feels invested in success.

I realize few people have such a perfect union! But if we are comfortable starting with this as an ideal for spousal relationships, and at least aiming in that direction, why not apply the ideal to work relationships? You know what they say: aim for the stars, and at least you’ll go far.

I am not suggesting we should all strive to be best buddies in the workplace (I don't recommend that, actually). And I have personally represented many employers who tell me, “I treated him like family, and in return he treated me—and the company—like dirt.” The principle I am espousing only works with buy-in from both sides. However, a Golden Rule principle would go a long way in this as in other relationships. And if flowers are warranted, send flowers.

For some concrete ideas about what this means in practice, see the article on this blog: It’s the Manager, Stupid! by Bill Leslie (reprinted with permission).

The Fundamentals of Smooth Sailing

We all hope for smooth sailing: brilliant marketing, substantial profits, equipment that works, secure facilities, and happy employees and customers.

It looks like I'm enjoying smooth sailing in this photo, but I'll tell you a secret: I wasn't sailing alone. Captain Dave was keeping track of the depth in the channel, Admiral Janet was preparing hors d'oeuvres (no sexism going on here - she can trim the sails as well as anyone, but she also happened to work miracles in the galley). My husband was helping with each tack.

It's no surprise that a business, like a well-run ship, requires many hands on deck (okay, I'm done with the nautical lingo, I promise). The problem I often see is a lack of coordination, because the business of running the business gets in the way.

Your floor manager knows it is important to document every time Albert comes in late, but he doesn't because the receptionist is sick and he spent half an hour on the phone with various temp agencies to find a substitute. Your office manager mentioned the company is past due for a refresher on harassment training, but you finally got that big contract you were hoping for, and the deadline is looming.

And then, when Albert is terminated for yet another late arrival, he files a claim with BOLI alleging racial discrimination and harassment. Now, you have no documentation that he's not being singled out because of his race, and no proof that you've taken steps to prevent and address harassment (a key element of your defense).

Here's my advice: schedule some time - put it on your calendar as if it was a Very Important Client Meeting that you absolutely positively can't miss - to establish (or refine) the fundamental processes for coordinating your employee relations efforts. (And though it sounds self-serving, get your lawyer involved in that meeting!)

1. Create a log, with pre-printed columns, for incidents (complaints, absences, etc.). That way, all a supervisor has to do is dash off a quick note on a pre-printed form. More extensive documentation can come later, if necessary.

2. Check your posters: do you have all the required employee postings?

3. Get your employee handbook updated at least every two years (a few months after each legislative session). It's a tedious process, but absolutely crucial.

4. Create a leave request form to be used ahead of time and after the fact (for unexpected illness), that allows the employee to note if the absence is or may be covered by medical leave laws.

5. Make sure timesheets or other payroll documents require employees to sign off that the time is accurate, that they've received all required rest and meal periods (if applicable), and that they've reported any problems with their schedule, timecard, etc.

6. Set up an exit interview process that documents employee complaints and ensures you have fulfilled all obligations related to termination (continuation insurance notification, final paycheck on time, etc.)

7. Create an easy-to-use procedure for reporting complaints (such as harassment), and a step-by-step process for responding to complaints - and then make sure all employees are aware of the procedure (get a signed acknowledgment).

Even the best planning won't avoid all storms and squalls, but you can take steps to maximize your chances of coasting serenely into the future (sorry, I couldn't resist).