Nolo’s Employment Law Blog

The Supreme Court issued two decisions in employment cases yesterday, finding in each that an employee could bring a claim of retaliation. In CBOCS West, Inc. v. Humphries, the Court found that an employee could bring a retaliation claim under a Civil War-era statute, 42 U.S.C. 1981, that doesn't expressly prohibit retaliation. (My previous post describes the case and the reasons why Section 1981 is such an important remedy for employees.) And, in Gomez-Perez v. Potter, the Court found that a U.S. Postal Service employee could sue for retaliation under the part of the Age Discrimination in Employment Act that covers federal employees -- again, despite explicit mention of retaliation in the law itself.

Big wins for employees? Yes and no. These two decisions affirm what many people thought was already the law, especially in the CBOCS West case, so employees haven't really gained any ground. On the other hand, employees haven't lost any ground either, which looks a lot like victory in front of this Supreme Court.

Often, the Supreme Court takes a case to resolve a disagreement among the Courts of Appeal. When it takes a case like CBOCS West, in an area where the law seems settled, advocates usually start worrying that the Court is going to shake things up and change the rules. That the Court didn't do so in either of these cases -- and invoked "stare decisis," the legal principle that the Court shouldn't overturn its previous decisions absent exceptional circumstances -- is the real storyline here, and a welcome one for employees and their advocates.

Lisa Guerin

There are plenty of stories about employers firing employees for criticizing the workplace on their personal blogs. Then there are the tales of employee blogs getting companies into hot water by revealing confidential company information, or criticizing third parties. But a recent blog saga has an interesting twist: a Burger King executive used his middle school-aged daughter's online identity to attack a farmworkers' advocacy group that was trying to increase pay and improve conditions for tomato pickers. (In another dramatic turn, Burger King also allegedly hired a private investigator who tried to infiltrate the organization.) Though Burger King declined to name the employee, other reports claim that it was Vice President Steven Grover (who, according to a company telephone operator, no longer works at Burger King).

Dealing with employee blogs is a delicate thing. On the one hand, you don't want to overstep legal limits on regulating off-duty conduct; on the other, you do want to keep company secrets. Companies like Dell, IBM, and Cisco require their blogging employees to disclose their identities and company affiliation when blogging about company-related issues. And many companies require bloggers to make clear that their views are their own, not those of the company.

I doubt Burger King had such a policy, but in this case, you'd also doubt that the employee would have followed it anyway. After all, any company executive who will assume his pre-teen's identity (did he really expect to go undetected?) to make disparaging remarks has questionable business acumen. The law related to blogs may be complicated, but it's not that complicated.

Of course, that's my view, not necessarily that of my employer.

Alayna Schroeder

Today, the Familes and Work Institute released its "National Study of Employers," a survey of the programs, policies, and benefits U.S. employers provide to address work-life issues such as job flexibility, time off, and health and retirement benefits. One purpose of the study was to identify trends over the last ten years. (The Institute released a similar study in 1998, and another in 2005.)

Its findings? Things haven't changed much, overall. For most of the more than 80 policy options the study surveyed, roughly the same percentage of employers offer them today as did ten years ago. The biggest change is who pays -- the study shows that costs are shifting to employees for these benefits:

• Maternity disability leave. 16% of employers provide leave with full pay for the period of time when a female employee is unable to work due to pregnancy and childbirth, compared to 27% of employers ten years ago.


• Family health insurance benefits. Only 4% of employers pay the full cost of covering family members, compared to 13% ten years ago.


• Retirement benefits. Although most employers contribute to employee retirement plans, the number has declined from 91% to 81%. And far fewer employers offer defined benefit pension plans (which pay out a set monthly benefit upon retirement).

Some programs have become more popular in the last ten years. Employers are now much more likely to provide health insurance coverage for their employees' unmarried partners, for example. They are also more likely to offer employee assistance programs (EAPs), information about elder care resources and services, and flexible hours, allowing at least some employees to change their starting and quitting times.

One of the more interesting findings of the survey is that racial and ethnic diversity at the top predicts a more work-life friendly workplace. The survey looked at four categories of work-life benefits: flexibility, caregiving leaves, child and elder care assistance, and health and economic security (primarily medical, disability, and retirement benefits). In every category, companies with more racial and ethnic minorities in senior positions were more likely to offer benefits.

Lisa Guerin

A former anchorwoman at the Weather Channel has apparently won an arbitration award in her sexual harassment case against the station, and now wants to use that award to go after her harasser -- and former coanchor -- personally for damages. The Weather Channel has other ideas: It wants to keep the arbitration award under wraps, especially while it's up for sale.

According to Hillary Andrews' complaint, she was subjected to almost constant harassment by her coanchor, Bob Stokes, during her stint on the station. She claims that Stokes made crude sexual remarks, asked about her sex life, commented on her clothing, leered at her, and, when she responded negatively to his efforts, insulted her on the air and tried to sabotage her work. After Andrews complained to station management, she claims she was given lousy assignments, including the overnight shift. Andrews also says that her predecessor on the job was subjected to similar behavior, including retaliation after complaining.

Andrews filed an arbitration claim in 2006. Although the arbitration decision is still confidential, Andrews' lawsuit states that it was highly critical of Stokes and the station, and that Stokes was fired the day after the decision was entered. When Andrews sought to use the decision in her tort lawsuit against Stokes, however, she claims that the station threatened to sue her and her lawyer personally. That's why she had to file a separate lawsuit asking a federal court to confirm the arbitration award and make a formal ruling that it doesn't have to be kept secret.

This case has a lot of twists that are a bit unusual, including that it was initially handled through arbitration (perhaps because Andrews was contractually required to do so), a lawsuit against an individual (presumably, one whose pockets are deeper than the average accused harasser), and an employer that really wants to fly under the radar, at least while it's for sale. But the lessons of the case for employers are the same as in any harassment case:

• Handle harassment when it first comes up. The largest damages claims are awarded against employers when they have ignored previous complaints -- and the awards only go up against an employer who takes the extra step of actually punishing previous victims.

• Don't retaliate. Punishing employees who come forward with complaints is a sure-fire way to anger jurors, judges, and apparently arbitrators as well. It also gives many complaining employees the incentive they need to go to court or arbitration. Retaliation threatens the complaining employee's job, reputation, and career opportunities; it's no wonder that this is often the final straw.

• Make your response to harassment the story. In this case, it looks like the station tried to protect a popular anchor by ignoring complaints. As a result, an employer that really doesn't want bad publicity right now has found itself in the headlights. A better approach? Handle the harassment appropriately after the first complaint, then explain that you won't tolerate harassment and strive to run a positive workplace for all employees. It's a much better story line for employers, viewers, and potential buyers alike.

Lisa Guerin

No doubt in response to a sluggish economy, a recent CNN article advises employees facing layoff on how to protect themselves. I appreciate the need for employees to take these steps, but I also think it's an opportunity for HR and other company representatives to show that your interests aren't always so different, either. So here's a summary of advice given by the article, as well as some advice to the employer:

1. Get organized. Employees are advised to print and take home personal files, review project files and update resumes, and think about what to do next and who to use as a reference.

Employer advice: Give employees adequate time to go through their desks, files, and projects to put everything in order, but remind them of their obligation to return and not improperly use company property. Make sure everyone knows company policy on referrals, if there is a policy.

2. Get what's coming to you. Get dental and medical checkups; make sure you get any vacation or holiday pay you're owed.

Employer advice: Know and comply with your state's rules about paying vacation or personal time. Many states require employers to pay for time already accrued. Also follow any company policy that states these will be paid. Finally, make sure you comply with requirements to notify employees of entitlement to continuing insurance coverage.

3. Get connected. Network. Talk to friends, former coworkers, and clients; attend professional association meetings; and talk to recruiters.

Employer advice: Provide information and access to job search resources (resume writing workshops, career fairs and centers, etc.) in the area. Remind employees of any legally valid non-solicitation or non-compete agreements.

4. Get searching. Visit online professional organizations or companies where you'd like to work; look at online job postings.

Employer advice: Compile a list of possible job-hunting websites or online resources to help employees jump start their search.

5. Get an exit strategy. Review company policy on severance; review agreements with legal and financial advisors.

Employer advice: Prepare to deal with confused, frustrated, or saddened employees. Honor any promises of severance pay or other benefits. Show departing employees compassion, respond promptly to inquiries about what will happen next, and take any requests for flexibility or negotiation seriously. Allow employees adequate time to review any proposed arrangements or to meet with professionals.

6. Get fired up. Stay positive.

Employer advice: Where appropriate, be sure to express your gratitude for an employee's past good work. Wish the employee well in future endeavors.

Alayna Schroeder

I went to a great event last week called "Putting Transgender People to Work," cohosted by Out & Equal and the Transgender Economic Empowerment Initiative. The speakers made the business case for hiring and retaining transgender employees and offered strategies for making companies friendlier for transgender employees and customers. One of the featured speakers, Susan Friedman of Macy's West, talked about creating a nondiscrimination program, complete with policy language, training, and written guides for managers and employees, for Macy's and Bloomingdale's stores.

A big part of the business case is the tremendous untapped human resource of transgender employees -- employees whose identification or expression of their gender is different from the gender they were born into or the stereotypes associated with it. According to the "Good Jobs Now!" survey cited by the speakers, transgender people are disproportionately unemployed or underemployed, and more highly educated, than the general population of California. That's the carrot: The stick is that discrimination on the basis of gender identity -- which includes discrimination against transgender employees and applicants -- is illegal in a handful of states (including California) and a much larger number of cities and counties.

For information on making your company more welcoming to transgender employees and applicants, check out the extensive resources available at the Transgender Law Center's website. You'll find information on everything from revising your policies to include gender identity as a protected category to making bathrooms accessible to transgender employees, handling coworker concerns, and respecting transgender employees' privacy. TLC also does workplace trainings.

Lisa Guerin

The EEOC is getting a lot of press for a $1 million jury verdict in a harassment case against agri-giant Harris Farms that was recently upheld by the Ninth Circuit. The verdict included the maximum $300,000 for punitive damages allowed under federal law. I have to admit, the numbers alone piqued my interest. And I wondered--how serious does an employer's activity or inactivity have to be to justify that kind of punitive damages award?

So I found the lower court's unpublished opinion, explaining why it denied Harris Farms' request for judgment as a matter of law with respect to punitive damages. Essentially, this was a request that the jury verdict be overturned because there wasn't legally sufficient evidence that the defendant acted in "malice or reckless disregard" of the plaintiff's rights, the legal standard for punitive damages.

Here's a summary of the reasons the court determined the defendant's behavior could be "reckless disregard":

* The defendant's written sexual harassment policy was out of date, and didn't even include a retaliation provision. Company executives knew it was out of date and didn't do anything about it.

* When the plaintiff made her complaints, translations of reports or interviews were inaccurate.

* After complaining of a physical incident in which she was grabbed by the harasser, the plaintiff was sent to work in a field by his home. When he made the assignment, her direct supervisor said he didn't know she'd filed a complaint or that the two should be kept apart. When the plaintiff complained the harasser drove slowly back and forth by the field, the employer didn't take any formal action.

* Two days later, the plaintiff reported to human resources that the harasser had raped her. Though they'd called the police about the grabbing incident, they didn't report the rapes and they didn't interview the harasser about them until 6 weeks later.

* In the midst of all this, the plaintiff complained to human resources that co-workers were spreading sex-related rumors about her. She said she was scared, and requested not to work alone. The request was denied, and eventually the plaintiff was investigated and disciplined for participating in gossip and making sexually inappropriate comments.

I understand that limiting damages is a big concern for most employers. In fact, this fear has led to some great strides in the context of harassment--training, clear policies, understandable procedures. Given that, a verdict like this can be a scary one. Maybe. I thought this might be a test case--one that would give some very clear guidance and put pressure on employers to tread carefully. Though it's not without its lessons (and obviously doesn't set a standard in every case), it also affirms a lot of practices conscientious employers are already following. Have an up-to-date policy. Investigate immediately. Report incidents of physical sexual assault to local authorities. I don't know that we needed a $1 million jury verdict to tell us that.

Alayna Schroeder