August 27, 2008

Surveillance of Employees on FMLA Leave

eye.jpg

An article ran last week in the National Law Journal about employers conducting surveillance on employees whom they suspect of abusing FMLA leave ("Spying Employers Raise Legal Hackles," by Tresa Baldas). The article included quotes from employer and employee advocates, predictably coming down on opposite sides of the issue. Employer attorneys claim they need to protect themselves from dishonest employees; employee attorneys counter that surveillance violates employee privacy and discourages employees from taking leave.

I think this type of surveillance is out of line, legally and as a practical matter. It fosters a relationship of distrust between workers and management, it wastes time and money, and it risks legal action for harassment, retaliation, and privacy violations (imagine what -- or who -- could be caught on a surveillance tape). It's also extremely distasteful: an investigator lurking on the sidewalk, taping employees in their front yards, picking up their kids at school, going to the grocery store. This shouldn't be the price of exercising a legal right. I know that employers feel taken advantage of by employees who abuse the FMLA, particularly for intermittent leave, but the law itself provides avenues for reining in these employees -- medical certifications, re-certifications, and second opinions, for example. These methods are neither perfect nor quick. They are a compromise that attempts to balance employer needs and employee rights.

I'll even go out on a limb and say that I think most people agree that surveillance is distasteful. So why are employers doing it -- and winning some of these lawsuits? Because bad facts make bad law. An employee calls in sick, claiming she can't work because she's taking new medication, spends the day mowing lawns for her husband's business, then calls in sick again that evening with a migraine (Vail v. Raybestos, 7th Cir. 2008). An employee claims to be too sick and dizzy to drive to work, but spends his time off at the gym and doing errands (Colburn v. Parker Hannifin, 1st Cir. 2005). After an employee's request for vacation is denied, he takes FMLA leave for a knee injury instead -- the same injury for which he took FMLA leave at the same time the previous year, after another vacation request was denied -- and goes to Las Vegas (Crouch v. Whirlpool, 7th Cir. 2006). In these cases, the method used to catch the employee gets lost because the employee's deception seems so clear.

But what about employees who are surveilled while on legitimate leave? I haven't seen a case where, for example, an employee takes leave for a knee injury and is taped being helped into the car by his male lover, thus catapulting him out of the closet at work. Or an employee's children and some of their friends are taped running through the sprinklers in their birthday suits, while the employee keeps an eye on them while trying to recover from a migraine on the front porch. Or an employee is taped attending a political rally for an unpopular candidate, buying condoms or adult diapers at the store, crying out of pain and frustration after recent surgery, or doing any of the many things that all of us would rather keep private. With facts like these, employer surveillance suddenly seems like a clear violation of societal norms.

August 11, 2008

EEOC Issues Guidance on Religious Discrimination and Accommodation

The Equal Employment Opportunity Commission (EEOC) recently issued a new section of its Compliance Manual on religious discrimination, along with a fact sheet of questions and answers and a best practices guide. These documents were issued partly in response to a rise in charges of religious discrimination, which have doubled in the last 15 years (although they still make up a small fraction of the total charges the EEOC receives -- 3.5%, according to the agency).

Religion is unique among the characteristics protected from discrimination. Religion isn't really a characteristic, like race or gender; it's a belief system. And unlike other protected traits, which are sometimes protected precisely because they are "immutable," religious belief is deeply personal and can change over time. A person might become more religious, convert from one religion to another, or abandon faith entirely. A person might strongly feel him- or herself to be part of a religion, yet not share all of its beliefs or follow all of its teachings. Also, unlike other protected traits, religion sometimes requires particular behavior while adherents are at work, such as prayer; observing certain holidays; wearing specified items, types of clothing, or hair styles; or professing one's faith to others.

All this adds up to potential workplace conflict, especially when you consider that atheism is also considered a "religion" for purposes of anti-discrimination law. What if an employee's religious beliefs require him or her to "spread the good news" to customers and coworkers -- who complain about it? What if an employee's religious garb creates a potential safety hazard or simply violates the company's uniform rule? What if an employee requests an accommodation for a claimed religious belief that you've never heard of, refuses to provide a Social Security number because it constitutes "the mark of the beast," or asks to be excused from a management training course featuring a New Age speaker?

The EEOC's Manual attempts to clarify some of these issues. Among other things, the new Manual provides guidance on:

What constitutes a religious belief. Once an employee goes beyond recognized religious affiliations, it can be hard for an employer to determine whether the employee's belief is actually religious. Vegetarianism, particular styles of dress or hair length, and views on appropriate gender roles, for example, could each be part of a system of religious practices or could simply be a matter of personal opinion or preference. As the Manual points out, personal beliefs are not protected by Title VII; that privilege is reserved for religious beliefs, defined as those that are sincere, meaningful, occupy a place for the believer "parallel to that filled by...God," and concern "'ultimate ideas' about 'life, purpose, and death.'"

Discrimination based on third party bias. The Manual makes clear that employment decisions based on customer preference or prejudice -- for example, against employees who are perceived as Muslim -- are discriminatory. Oddly, the Manual also says that it would be okay for employers to require Muslim applicants to undergo more extensive security or background checks if required by federal law or Executive Order, but then goes on to say that no such law or Order exists, as far as it knows.

Reasonable accommodation and undue hardship. Employers are legally required to accommodate an employee's religious belief, practice, or expression. The Manual gives extensive guidance on accommodations that might be reasonable for an employee who requests a scheduling change (to observe religious rituals or a Sabbath), an exception from usual dress or grooming requirements, or breaks at work to pray. The Manual indicates that employers would be well-advised to follow the "interactive process" required by the ADA in working with employees to come up with a suitable accommodation. Although the Manual notes that any expense beyond administrative costs is considered an undue hardship under Title VII, it also states that an employer might be expected to pay premium wages (for example, overtime pay to another employee) as a temporary accommodation for an employee who needs time off for religious reasons.

Religious expression. The Manual cites a survey indicating that 19% of employees proselytize to coworkers. It also discusses other forms of religious expression in the workplace, from an employee who wears a button with an anti-abortion message and graphic photograph of a fetus or a patch saying "Jesus is Lord," to employees who wish to greet customers with "Have a Blessed Day," "Praise the Lord," or "in the name of Jesus of Nazareth."

The Manual doesn't do much to resolve the current legal bind of employers here: These are considered forms of religious expression entitled to accommodation. On the other hand, other employees may find these statements harassing -- and the employer itself might legitimately feel that such statements give the public the wrong idea about the company's own values and mission. There are no bright lines: Unlike racist or sexist comments, which an employer can and should stop whether or not they've reached the level of legal harassment, religious comments are not considered legally inappropriate. In fact, they are legally protected to some extent, and an employer who prohibits them absent complaints or other evidence of trouble could face a successful legal challenge.

August 5, 2008

Glowing Reference + Dangerous Former Employee = Potential Liability

Giving references for an employee your company fired can be a very tricky business. If your company goes beyond the standard "name, rank, and serial number" approach -- typically, confirming only the dates the employee worked for the company, positions the employee held, and perhaps salary information -- you might be worried about a lawsuit from the former employee. Even though many states have laws that protect former employers from defamation claims based on a good-faith reference, you have to be careful not to go beyond information you know or reasonably believe to be true.

But courts are finding that it's just as bad to give a falsely positive reference for an employee who is actually dangerous. More than ten years ago, for example, the California Supreme Court found that an employer that chooses to give a detailed reference for a former employee has a duty not to misrepresent the facts. In that case, a female student at a California middle school claimed she was sexually molested by the vice principal, and sued his prior employer based on its glowing letter of recommendation; in fact, he had been accused of sexual misconduct and impropriety with students in his former job, as well. The Court allowed the case against the former employer to go forward.

A recent case from the Fifth Circuit Court of Appeals has facts that are similarly dreadful -- and a similar outcome. In that case, an anesthesiologist was fired for abusing Demerol on the job; his termination letter stated that his employment had been terminated for cause for reporting to work in an impaired condition and putting patients at risk. Nonetheless, he received positive reference letters from two of the doctors in the partnership that had fired him, stating that he would be an asset to any anesthesia service, was an excellent clinician, and was recommended highly. No mention was made of his drug abuse.

In his new position, the anesthesiologist failed to resuscitate a patient who was in for routine surgery; the family of the patient -- who ended up in a permanent vegetative state -- sued the new employer. The new employer, in turn, sued the former employers for misrepresentation. The Court of Appeals found that the former employers had no stand-alone duty to disclose the employee's drug abuse; once the doctor-owners provided a reference, however, they had a duty not to affirmatively misrepresent the facts. Because their referral letters were false and misleading, they could be partially liable for the patient's injuries.

For information on what to tell prospective employers about a former employee, see Nolo's article Giving References for Former Employees.

July 29, 2008

Women Leaving the Workforce Due to Poor Economy: But Is That All?

EmpLaw072908.jpg

Women are leaving the workforce in their prime earning years, according to an article in the New York Times that claims, "women are being afflicted on a large scale by the same troubles as men: downturns, layoffs, outsourcing, stagnant wages, or the discouraging prospect of an outright pay cut. And they are responding as men have, by dropping out or disappearing for a while." 

The title of the article -- "Women Are Now Equal as Victims of Poor Economy" -- may be right. But being equally subject to economic downturn does not "equal" make. According to the U.S. Census Bureau, in 2004, women in the workforce earned an average of 77 cents to every dollar a male earned.

This comparison isn't necessarily apples to apples -- it doesn't compare two individuals in the exact same job.  But another study shows that one year out of college, women make 80 cents for every dollar earned by their male counterparts, with a big pay disparity even when working in the same field. (The Equal Pay Act, passed in 1963, recognized this pay disparity and seeks to correct it. And other legislation on both the state and federal level has sought to protect women from this and other sex discrimination that is still alive and well in today's workforce [pdf].) 

So is there some justification for the disparity? According to some, men make choices that "lead to higher annual salaries," such as working in jobs that require extensive travel, hazardous assignments, or provide less "free time." That may be true, but it seems a little disingenuous. Most obviously, in childbearing couples, men and women are not created equal, and some of these salary-enhancing factors put childbearing women at a disadvantage. It may be hard for pregnant women to travel extensively or take on hazardous assignments, for example (and there are enough lawsuits to show they may face employer criticism for trying). 

Only women become pregnant, deliver babies, and breastfeed. Child-bearing women must exit the workforce for, at very least, the amount of time it takes for prenatal care, delivery, and recovery. Men, by comparison, need not take any time at all (though many do, to attend appointments, provide care, and bond with new infants).  Is it really any surprise, then, that mothers are more likely than fathers to work part time or take leave when children are born? Or that two wage earners, faced with the high cost of child care, might decide that the lower wage earner should stay home -- or perhaps not immediately seek to reenter the workforce after a layoff, when the economy is bad? 

So yes, the economy may be hitting men and women equally, but there's no question -- other factors aren't, and there's more to the story of what's driving women from the workforce. 

Alayna Schroeder

July 25, 2008

ADA Amendments? Not So Fast

The ADA Amendments Act (the ADAAA), which would overturn several Supreme Court cases that limited the application of the Americans with Disabilities Act, passed in the House last month and is now before the Senate. The ADAAA has widespread support from employee and disability rights advocacy groups and employer advocates -- rarely do you see legislation supported by the ACLU, the Leadership Conference on Civil Rights, the NAACP, The Society for Human Resource Management, and the Chamber of Commerce. But the price of this broad coalition might be coming due now, as the Senate tries to parse the compromise language used in the ADAAA.

An overriding goal of the legislation is to make sure that serious conditions and diseases qualify as disabilities under the law. Here are some of the changes the ADAAA would make:

  • Prohibit consideration of "mitigating measures" when determining whether someone has a disability. The Supreme Court has held that medications or assistive devices a person uses to control or diminish the effects of a disease or impairment must be taken into account when determining whether that person has a disability. For example, someone whose epilepsy is controlled by medication could be determined not to have a disability. The ADAAA would reverse these holdings and require courts to look at the person's condition in its unmitigated state when deciding whether he or she has a disability.
  • Include certain bodily functions as major life activities. In the past, some serious diseases (including certain types of cancer) were not considered "disabilities" under the ADA because they did not yet substantially affect a major life activity. The ADAAA provides that major bodily functions -- for example, the proper functioning of the immune system, cell growth, brain, and respiratory system -- are major life activities. 
  • Include impairments that are episodic or in remission. The ADAAA provides that conditions that would be disabling when active count as disabilities, even if they do not currently substantially limit a major life activity. This provision would cover serious conditions that have disabling flare-ups, such as certain types of epilepsy or multiple sclerosis, and cancers that are in remission.
  • Redefine the "substantially limits a major life activity" standard. The ADAAA says that a condition or impairment is a disability if it "materially restricts" a major life activity. This is the compromise language that is currently under discussion in the Senate.

As originally introduced, the legislation (then called the ADA Restoration Act) would have gotten rid of the "substantially limits" language altogether, and stated simply that a disability is a physical or mental impairment. The Supreme Court has interpreted "substantially limits" to require a severe restriction. The language of the ADAAA -- that the condition must "materially restrict" a major life activity -- is a compromise intended to cover those with serious conditions while excluding minor or temporary impairments.  

Senator Harkin, one of the Senate sponsors of the ADA 18 years ago, has expressed concerns about how this language will be defined by the courts. He has indicated that, although he wants the Senate to quickly pass similar legislation, the "materially restricts" language may need to be further clarified in the Senate's version of the bill.  

Lisa Guerin

July 3, 2008

Discrimination Code Words: Just as Illegal

Discrimination is cloaking itself in more subtle terms. As EEOC attorney Sanya Hill Maxion told Dahleen Glanton of the Chicago Tribune, "People are smart and know they cannot use blatant terms, so they get the message across in other ways." It may come out on a job description as "enthusiastic" or "progressive" -- but if it really means "young," it's discriminatory.

Maxion represented Tomeika Broussard, who won $44,000 in a racial discrimination lawsuit against her employer. Broussard's supervisor called her "reggin" -- it sounded negative to Broussard, but it didn't automatically register that it was the "N" word spelled backwards. (Check out Glanton's article to read a full account of her ordeal.)

"Smarter" discrimination means smarter deciphering is in order. No one wants to quelch inside jokes or friendly banter, or rewrite an enthusiastic job description as a dry recitation of job duties. But many times, the negative connotation of a word -- even one we may not understand -- is obvious, just as it was to Ms. Broussard.

Alayna Schroeder

June 19, 2008

Supreme Court Decides Two Age Discrimination Cases

court_front_med.jpgThe Supreme Court is busy these days, issuing its final decisions before beginning its summer recess at the end of this month. Today, the Court announced several employment law cases, including two age discrimination decisions. (The Court also invalidated a California law that prohibited employers who receive state funds from using that money to promote or discourage union organization; I'll write about that case, Chamber of Commerce v. Brown, in a future post). One of the age discrimination cases, Meacham v. Knolls Atomic Power Laboratory, involved a reduction in force at a government contractor that designs naval nuclear reactors. Managers were asked to score employees for performance, flexibility, and critical skills, and those scores were used to determine which employees lost their jobs. All but one of the 31 employees who were let go were at least 40 years old, and most of them sued for age discrimination. Among other things, the employees claimed that the scoring system had a disparate impact: Even though it didn't explicitly discriminate on the basis of age, the employees argued that it disproportionately screened out older workers. Knolls countered that its selection criteria for the RIF were "reasonable factors other than age" (RFOA), one of the exceptions to the Age Discrimination in Employment Act, and so were legal. The argument in this case was over which party -- employer or employee -- ultimately has to prove the RFOA. The Court found that the RFOA is an affirmative defense, which means that the burden is on the employer to prove that its criteria were reasonable. As the Court admits, this case will make it more difficult for employers to defend against disparate impact claims in ADEA lawsuits. In Kentucky Retirement Systems v. Equal Employment Opportunity Commission, a rare combination of five Justices (Breyer, Roberts, Stevens, Souter, and Thomas) decided that Kentucky's retirement system for employees in hazardous positions (such as firefighters and law enforcement officers) didn't violate the ADEA. This decision is tough to parse, not least because the facts of the case are a bit complicated (and there's math). Here are those facts in a nutshell: Kentucky's system makes employees eligible to retire when (1) they have 20 years of service, or (2) they have five years of service and are at least 55 years old. Employees who suffer a disability are eligible for immediate retirement. If they haven't met one of the two criteria that usually apply, they are credited with enough additional years of service to qualify them for retirement, up to the number of years they have actually served. Retired employees were paid based on a formula that multiplies their years of service (whether actual or credited after a disability) by a factor of their annual pay when they retired. The EEOC sued, claiming that the system discriminated against older workers because it allowed younger employees to receive higher payments than older employees with the same length of service. Because employees who were at least 55 only needed five years of service to retire, some younger employees who became disabled had to be credited with more years of service to be eligible for retirement -- which translates into more money. For example, an employee who suffered a disability at the age of 35 after ten years of service would receive credit for an additional ten years of service; an employee who suffered a disability at the age of 50 after ten years of service would receive credit for only an additional five years of service; and an employee who suffered a disability at the age of 55 after ten years of service would be credited with no extra years. The Court decided in favor of Kentucky and upheld the system. The Court found that Kentucky wasn't motivated by age discrimination, but by a desire to allow those disabled on the job to receive compensation. Because the state's rules were based on pension eligibility rather than on age, the Court found that they should be upheld. The dissent seems to have the better side of the argument on this one. They point out that the state's pension calculations are explicitly based on age. The state may be able to justify its rules using the equal cost defense, which allows employers to reduce certain benefits to older workers as long as it spends an equal amount on benefits for older and younger workers. But to say, as the majority opinion here does, that the state's system is not age-based seems incorrect. And even if the state has good intentions, as appears to be the case, it doesn't have to disadvantage older workers to achieve its goal of compensating employees who suffer disabilities.

For a comprehensive guide to the ADEA and other federal laws prohibiting discrimination, see The Essential Guide to Federal Employment Laws, by Lisa Guerin and Amy DelPo (Nolo).

Lisa Guerin
June 10, 2008

Vacations Have Health Benefits

It turns out that taking time off work isn't just a luxury -- it improves our health, the quality and quantity of our sleep, and our reaction times. According to an article by Alina Tugend in the New York Times, "Vacations Are Good for You, Medically Speaking," a study has shown that women who took a vacation only once every six or more years were eight times more likely to develop coronary heart disease or have a heart attack than women who took at least two vacations a year. Another study showed that men who didn't take annual vacations had a 21% higher risk of death from all cases, and were 32% more likely to die of a heart attack. The article also cites interesting research on how vacations affect our sleep. After a few days on vacation, participants were averaging an hour more of good quality sleep, and registered an 80% improvement in their reaction times as measured by vigilance testing. The benefits continued, though less markedly, after vacationers returned home. The sleep survey involved vacationers who were flying from the West Coast of the United States to New Zealand for at least a week of vacation. But will more modest vacationing - occasioned by this year's flagging economy and high gas prices -- offer the same rewards? According to an AOL Travel/Zogby survey, more than half of the respondents felt that they had less money to spend on summer vacations this year than last year. Perhaps as a result, a third of respondents were planning to stay with family and friends rather than in a hotel. And, campgrounds around the country are reporting high numbers of reservations. It remains to be seen whether we'll get an extra hour of quality sleep on the ground or the hide-a-bed. Lisa Guerin
June 4, 2008

High Gas Prices Should Drive Employees to Telecommuting

gas.jpgWith gas prices hovering around $4 per gallon, a survey by placement firm Challenger, Gray & Christmas reveals that 57% of polled employers are offering alternatives to help employees cope, according to CNN. Strategies include a compressed work week -- four 10-hour days (23%) -- employee carpools (20%), subsidizing the cost of public transportation (18%), and allowing employees to telecommute at least one day a week (14%). Personally, I'm surprised telecommuting is so far down the list. All the other options are good ones, but telecommuting has some distinct advantages for employers as well as employees. (Full disclosure: I'm writing this from home, as a telecommuting employee.) Here are just a few of the benefits:
  • Recruiting and retaining the best employees. According to the survey, 34% of employers have had a qualified candidate turn down a job because of a long commute, while 40% of jobs could be done telecommuting. Allowing employees to telecommute is an attractive job benefit that will help you attract the best candidates, even if far away. Another study shows telecommuting employees are more satisfied with their jobs, and less likely to leave.
  • Decreased costs. Telecommuting may decrease your costs -- for example, if it allows employees to share work space and office equipment.
  • Increased efficiency. Employees working at home are free of the distractions of a ringing phone, interruptions by co-workers, and the like. Particularly if working on focused projects, this allows employees to work more efficiently.
  • Positive environmental impact. One 2005 study found Americans drive an average of 16 miles each way to work. In addition to reducing commuting times and costs, allowing telecommuting has a positive environmental impact as fewer workers drive to the office.

To learn how to create a work-at-home arrangement that will suit both employee and boss, see The Work From Home Handbook, by Diana Fitzpatrick and Stephen Fishman (Nolo).

Alayna Schroeder
June 2, 2008

Pregnancy Discrimination Includes Abortion, says Federal Court of Appeals

Firing an employee for having an abortion is a form of pregnancy discrimination, the Third Circuit Court of Appeal found in Doe v. C.A.R.S. Protection Plus, Inc. The facts of this case are particularly sad: Doe (a pseudonym) learned there might be problems with her pregnancy in August 2000, several months after she found out she was pregnant and told her employer. After tests showed severe deformities, Doe had an abortion, on her doctor's recommendation. On the day of the funeral ceremony, Doe was fired. Her employer argued that she was fired for failing to comply with the company's procedures for being absent from work. However, Doe presented evidence that her husband had called in to arrange the time off, and that other employees were not required to follow the same rules. Another employee also stated that Doe's supervisor (who fired her) stated that Doe "didn't want to take responsibility," possibly in reference to her abortion. And, Doe was fired only three working days after the abortion. Taken together, the Court found that this evidence was enough to defeat the employer's motion for summary judgment. At least one other federal Court of Appeals (the Sixth) has found that employers may not discriminate against employees who have had abortions, the same position the EEOC has taken. This precise issue hasn't come up much in court decisions, perhaps because many women keep quiet about having an abortion. Doe's employer knew about her abortion precisely because of the sad facts of the case: that it was a medically recommended termination of an apparently wanted pregnancy. The term "abortion" does come up with some frequency in pregnancy discrimination cases, but not because the employee alleging discrimination had or even considered one. Instead, the employee sometimes claims that her manager brought up the possibility of an abortion (as in, "why don't you have one"), one piece of evidence that the manager was hostile toward the employee's pregnancy.

Thanks to the Law Memo's Employment Law Blog for alerting me to the case.

Lisa Guerin
May 28, 2008

Supreme Court Decides Two Retaliation Cases -- in Favor of Employees

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

May 21, 2008

Employee's Blog Activity Leads to Firings at Burger King

istock_000005622818xsmall.jpgThere 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.

For help in creating and executing the best technology policy for your workplace, see Smart Policies for Workplace Technologies, by Lisa Guerin (Nolo).

Alayna Schroeder
May 21, 2008

Work-Life Study: Policies Have Held Steady for Ten Years -- But Employees Have to Pay More

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
May 13, 2008

Sexual Harassment In the Air At the Weather Channel

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.

To learn more about protecting your employees and your company from illegal harassment and discrimination, see The Essential Guide to Handling Workplace Harassment & Discrimination, by Deborah C. England (Nolo).

Lisa Guerin
May 6, 2008

Six Ways for HR to Prepare for a Layoff

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.

For more information on what managers should do before, during, and after a layoff, see Nolo's article How to Conduct a Layoff.

Alayna Schroeder