April 2008 Archives

April 29, 2008

Employment Arbitration: Who's Winning?

There was an interesting article by Marcia Coyle in The National Law Journal last week, reporting on a study of court rulings on employment arbitration awards. The study found that federal courts upheld arbitration awards at roughly the same rate, whether the employee or the employer won the underlying arbitration. State courts were a different story, however: State appellate courts confirmed employee arbitration victories only 56.4% of the time, but confirmed 86.7% of employer victories. Previous studies have looked at how employees fare in arbitration: how often they win, how the costs and fees compare to those paid in litigation, and how large the awards are. The National Workrights Institute has compiled some of this research here. The data they looked at partially contradict the anecdotal evidence -- and gut feeling -- of many lawyers that employees tend to do better in front of a jury than before an arbitrator or panel of arbitrators. Although the figures in the research they looked at vary, they appear to indicate that employees may win more often in arbitration than in litigation, and that the median arbitration award is comparable to the median award in court. That isn't the whole story, however: The mean award to employees was much higher in litigation than in arbitration. (In case you missed that day, the median is the midpoint of a range of numbers, which means there are an equal number of awards above and below the median; the mean is the average award.) The higher mean for employees in litigation suggests that employees do better in court in the big money cases. However, the study also points out that, because litigation costs more than arbitration, employees who go to court may actually have better cases -- and that the ultimate amount the employee gets is often quite a bit less than the award.

To learn more about the basics of arbitration (what it is, when it arises, and how the process works), see Nolo's article Arbitration Basics.

Lisa Guerin
April 24, 2008

Congress Considers Equal Pay and Genetic Discrimination

Congress is voting on a couple of important employment law issues: pay discrimination and genetic discrimination. Here are the details: The Lilly Ledbetter Fair Pay Act. Just yesterday, Senators Clinton and Obama took a brief break from the campaign trail to return to Washington and vote on this bill. (Technically, they voted to invoke cloture to end a Republican filibuster and clear the way for a vote on the actual legislation . . . for the procedural details leading up to the vote, check out this post by James Oliphant for The Baltimore Sun; you can find a good Reuters account of the vote itself here.) Because the cloture vote failed, the bill is stalled for now. It would have reversed last year's Supreme Court case, Ledbetter v. Goodyear Tire & Rubber Co., which held that employees claiming discrimination in pay must file a charge with the EEOC within 180 days of the original discriminatory decision. Ledbetter argued that each time she received a paycheck that was less than it should have been, the statute of limitations should begin again -- and that's what the bill would have legislated. The Genetic Information Nondiscrimination Act (GINA). Today, the Senate is expected to pass GINA. A similar bill already passed the House, so this one should go to the President. GINA would outlaw genetic discrimination in health insurance and employment. The employment provisions would prohibit employers from making decisions based on an employee's genetic information; it would also prohibit employers from gathering genetic information on employees or their family members, except in limited circumstances (such as when seeking medical certification under the FMLA or monitoring employees to determine the effects of toxic substances in the workplace). The bill had been held up by Senator Tom Coburn, a doctor who had concerns about the employer liability provisions; you can read a summary of the issues here. Advocates of genetic research have praised the bill for removing a major obstacle to participation in studies; as reported in The Washington Post, a recent survey showed that 93% of respondents wouldn't take part in genetic research unless it were illegal for insurers or employers to use information gathered from the research against them.

For a detailed guide to the employment laws that every employer and HR pro needs to know -- including the Equal Pay Act and GINA -- see The Essential Guide to Federal Employment Laws, by Lisa Guerin and Amy DelPo (Nolo).

Lisa Guerin
April 22, 2008

Workplace Bullying, Part 2

emplaw050108.jpgA few weeks ago, I wrote about legislation to prohibit workplace bullying. I suggested that if workplace bullying met the definition of harassment, employers should act to prevent and correct it. The issue involves more than just employer liability, as a recent Indiana case reveals. There, a cardiovascular surgeon challenged a $325,000 jury verdict against him for an assault against a hospital operating room perfusionist. Contrary to popular belief, an "assault" doesn't mean physical contact. In Indiana--and most states have similar laws--it means "one acts intending to cause an imminent apprehension of a harmful or offensive contact." (If the contact actually occurs, that's battery.) So a workplace bully can commit an assault, subjecting him to civil liability, even if he doesn't touch the bullied party. Here, the defendant "aggressively and rapidly advanced on the plaintiff with clenched fists, piercing eyes, beet-red face, popping veins, and screaming and swearing at him. The plaintiff backed up against a wall and put his hands up, believing that the defendant was going to hit him, '[t]hat he was going to smack the s* *t out of me or do something.'" (Pretty good description for a legal opinion, wouldn't you say?) The defendant wanted to exclude expert testimony from a doctor who classified his behavior as "bullying." He also wanted the jury to be instructed that the phrase "workplace bully" wasn't relevant to the elements of the plaintiff's claims; that being a workplace bully isn't against the law. The trial court denied those requests and the appellate court agreed and said the term was an appropriate one for the jury to consider. From an employer's perspective, this kind of assault could be a form of harassment. Even complaints that don't result in any physical altercation should be investigated. And workplace bullies beware--you can pay for your behavior, and the consequences can be more serious than heading for the principal's office. 
 Alayna Schroeder
April 18, 2008

Consider the Source: Religion in the Workplace

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Remember the Source Family? Wore long robes, lived together in a mansion in Los Feliz, ran a trendy vegetarian restaurant on Sunset, had a psychedelic band called Ya Ho Wa 13, all went by the last name "Aquarian"? If not -- or if so, but you'd like to remember more -- you can find out all about them in the book I'm reading, The Source: The Untold Story of Father Yod, Ya Ho Wa 13 and the Source Family (my version annotated by the inimitable Mrs. Stim). You can also check out National Public Radio's recent series on the group, including an audio slideshow, here.

Being a lawyer, reading this book got me thinking about religion in the workplace -- for my money, one of the most interesting areas of employment law. Consider this: What if someone who wasn't a member of the Source Family wanted to work at their restaurant? An aspiring actor or musician could have done worse in the early '70s; after all, John Lennon, Julie Christie, Warren Beatty, and Paul Mazursky all spent time there. What if an aspiring thespian wanted to rub elbows with celebrities, but didn't want to attend the 4 a.m. meditation or learn the Ten Commandments for the Age of Aquarius?

A California case last year dealt with this issue of the nonbeliever employee. Lynn Noyes, an employee of Kelly Services, claimed that she wasn't promoted because, unlike her manager and more than a third of her coworkers, she was not a member of the Fellowship of Friends, a group founded in 1970. (The Fellowship adheres to "Fourth Way" principles, which it refers to as esoteric Christianity.) After the district court granted summary judgment against Noyes, the Ninth Circuit Court of Appeals reversed, finding that she could take her case to trial. In doing so, the Court affirmed that reverse religious discrimination cases -- where the employee claims discrimination for not sharing a decisionmaker's beliefs -- are viable.

But what about the opposite situation -- what if a Source Family member wanted to get out of the restaurant business and take a job elsewhere? The employer would have to accomodate, among other things, the employee's wearing of robes, refusal to get a haircut or shave, and daily morning bong hit (to last exactly six seconds). (Family members also "didn't need" deodorant due to their healthful diets, but I don't think that was a requirement; also, it was the '70s). As for the robes and hair, altering company dress codes is often seen as a reasonable accommodation to an employee's religious practices (although the employee might have to make some alterations for safety reasons). The pot smoking is a different story, of course.

If, like me, you've worked in a few alternative environments, you have probably come across a different type of religion in the workplace: the vaguely spiritual or New Age ritual, often as a means of team building. If you've had to chant, meditate, close your eyes and picture something, or take your turn with the talking stick while on the clock, you know what I mean. Or, perhaps you've participated in a workplace training program intended to help you "self-actualize" or reach your "human potential". The EEOC says that making New Age and similar trainings mandatory could lead to a religious discrimination claim. In fact, that's just what happened to the DeKalb Farmers' Market, which allegedly fired or forced out employees who refused to attend training sessions run by The Forum, a later incarnation of est (erhard seminars training). The employees claimed that the program's emphasis on human potential violated their belief in the supremacy of God. (The case settled.)

Lisa Guerin

April 16, 2008

Guns in the Parking Lot

One year after the shootings at Virginia Tech, the argument continues over gun rights, particularly whether gun owners may bring their weapons to work or school. Yesterday, the Governor of Florida signed a law that will prevent employers from prohibiting guns in company parking lots, as long as those guns are locked in the employee's vehicle and the employee has a permit for the weapon. (An article by Jennifer Steinhauer in yesterday's New York Times carried an interesting graphic on similar efforts in other states, along with bills that would allow students and professors to carry guns on college campuses; it also covers laws seeking to limit gun rights.)

Similar "parking lot" bills were introduced in a number of states last year. As reported by SHRM, however, those efforts lost steam after the Virginia Tech shootings. The National Rifle Association said then that they would renew their state legislative efforts in 2008, and apparently they have made good on that promise.

Whatever you think about gun control, a law that requires an employer to allow guns in its parking lot puts companies in a tough spot: legally required to protect employees from violence, yet unable to prohibit guns on their own property. This argument will be tested soon in a case challenging a similar law in Oklahoma. In October of 2007, the district court judge prevented the law from going into effect, finding that it conflicted with OSHA, the federal law that requires employers to provide a workplace free of recognized hazards likely to cause death or serious injury. (Here's a summary of the case, by BLR.) The case is currently before the 10th Circuit Court of Appeals.

Lisa Guerin

April 16, 2008

Signing an Arbitration Agreement Can't Be a Prerequisite to Investigation, California Court Says

In a recent case, a California trial court denied an employer's motion to compel a former employee to arbitrate his racial discrimination and harassment claims, even though he'd signed a form agreeing to arbitrate. The denial was affirmed by an appellate court.

The plaintiff, Sam Metters, complained of the discrimination and harassment to his employer, Ralphs Grocery Company. On two occasions, Ralphs sent Metters a letter and "Notice of Dispute & Request for Resolution" form. The form included a voluntary mediation and mandatory arbitration clause, and left a blank for the employee to sign.

According to Metters, the employee relations manager at Ralphs instructed him to sign and return the form. He understood that he had to do so to have his claims investigated, and he signed. When he later sued the company, Ralphs tried to enforce the agreement.

But the court wasn't buying it. Even though the employee had signed, the document didn't look like a contract, so he hadn't really consented. The appellate court noted other problems with the process too -- the employee said he wasn't given a copy of the company's "Mediation & Binding Arbitration Policy," which was referred to in the arbitration clause.

Perhaps most importantly, the employer's actions suggested that the employee had to fill out the form to have his complaint investigated. The employee said he'd tried to contact the company on several occasions, and it hadn't produced results. Between this inaction, the letters he received, and the conversation he had with the employee relations manager, the plaintiff believed he didn't have another choice.

To find out more about arbitration agreements (and the types of provisions that might render them illegal), see Nolo's article Signing an Arbitration Agreement With Your Employer.

Alayna Schroeder

April 10, 2008

Pet Insurance as an Employee Benefit

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In addition to health insurance, life insurance, and disability insurance, some employers now make pet insurance available to employees. A 2007 survey by the Society for Human Resource Management (SHRM) found that 5% of responding companies offered pet insurance as an employee benefit. And ABC News reported earlier this year that providers of pet insurance have seen big jumps in their corporate sales.

Perhaps one reason for the growing popularity of pet insurance is the bottom line: It doesn't cost employers anything to provide it. Employees who sign up for the benefit pay the full cost, but usually get a 5 to 10% discount off what they would have had to pay to purchase it on their own. It's not clear how much this helps pet owners defray the sometimes astronomical cost -- $9.8 billion last year, according to the ABC News report -- of pet health care, however. Because many pet insurance policies are chock full of exclusions, they don't always make financial sense for pet owners. Still, they make it possible for many pet owners to afford life-saving treatments that would otherwise be out of reach.

Undoubtedly, some employees consider pet insurance a valuable benefit. If your company decides to offer it, however, make sure it isn't perceived as coming at the expense of benefits for the human family members of your employees. Don't make the same mistake as Palm Beach Community College, which apparently decided to offer pet benefits -- complete with promotional literature from the benefit provider, saying "your pet is a member of your family" -- only 90 days after deciding not to offer domestic partner benefits. Ouch.

Lisa Guerin

April 7, 2008

Death From Blogging: New Workplace Hazard?

Many of us have probably heard or read articles about employees who have been "dooced" -- fired for what they write in their personal blogs. But until I looked at the Sunday paper, I hadn't heard of blog writers making the ultimate sacrifice. In a front-page story in The New York Times, "In Web World of 24/7 Stress, Writers Blog Til They Drop," Matt Richtel covers the recent deaths, by heart attack, of two bloggers, and the health concerns of others.

The article points to a number of factors that contribute to the stressful lifestyle of many bloggers, including the 24-hour news cycle; the competition to be the first to break a story (and garner the most readers, incoming links, and ad revenue); the ability to write a post from home or anywhere else, at any time; and pay structures that reward quantity of posts and page views. One blogger quoted in the article says that he has gained 30 pounds, developed a sleeping disorder, had to fit four employees into his home office, and sees a possible nervous breakdown in his future.

Food for thought, whether you blog for wages, pay employees to post, or are a self-employed blogger.

Lisa Guerin

April 2, 2008

Starbucks Baristas Get a Venti Tip

tipjar.jpgA California court recently awarded more than $100 million to current and former baristas at Starbucks, after they won a class action lawsuit claiming that the coffee chain forced them to share their tips with their supervisors. Apparently, once all the tip jars were emptied, the contents were shared among not only the baristas but also the supervisors on their shifts.

Tip pooling, or "tipping out," refers to the common practice of requiring tipped employees to share all or part of their tips with each other. Tip pooling arrangements can be legal, but only if they meet a number of requirements. The most important one: No employers are allowed in the pool. Tips belong to employees. Although they may sometimes be required to share tips with each other, they can't be required to share with the boss. And California law also prohibits any agent of the employer -- including anyone who has the right to hire, fire, supervise, direct, or control the work of employees -- from sharing in tips.

In case you were wondering how much the average Starbucks barista earns in tips, the answer is not much: $1.71 an hour, according to a story in the Los Angeles Times. But apparently, shift supervisors really work a lot of hours. The judge arrived at the damages portion of the award by multiplying that hourly tip rate by 50,694,694, the estimated hours worked by shift supervisors during the time period covered by the lawsuit.

One of the attorneys involved in the case said that some baristas could receive as much as $10,000 as a result of the decision. They shouldn't start spending that money any time soon, however: Starbucks has vowed not only to appeal the decision, but also to continue allowing supervisors to share in the tips.

Lisa Guerin