Drama, Conflict, Despair & Victory at Work

Your Friends Are My Friends

2009-05-21T17:07:00.001-07:00

Joe is disgruntled with his boss, and more generally with his company. He needs to vent, and he finds a social network site an easy medium to share his private frustrations with his online friends. Joe actually has hundreds of "friends" on Facebook, many of whom have not communicated much more than a click or two. While at his work computer, during paid hours, Joe shares with his Facebook friends in "private" postings (postings visible only to his "friends") that the company's ethics policy is a joke, that his boss is a major kiss ass, that employee morale is in the pits, and that the product stinks.

Should Joe's boss have the authority to require Joe to allow him access to see what Joe is posting about him and the company? Of course, there is a legal answer, a political answer, an ethical answer, a logical answer, an economic answer, and the kind of evasive cautious answer that often characterizes legal opinions. I serve up the latter. But I will try to be direct, simple, and clear.

Decades ago I wrote a published law review article on privacy rights. Old principles never die, they just fade away. The basic principle of privacy is the idea of "being left alone", that is, to be free of intrusion. I like that: it states a good basic working definition of a personal boundary. Other than doing that, however, it's worthless to answer the FaceBook question first posed. More principles are needed.

Here is the way I believe a California Court would frame the ultimate question: Is the activity one traditionally viewed by our culture as "private", and what is the employer's interest in acquiring the "private information"? California's Constitution has a privacy protection, and unlike the federal constitution, the protection is not limited to government intrusion, but includes individuals.

Well, as you can see, we're now into the fuzzy logic of legal opinions. Maybe some extreme examples will aid in seeing why "fuzzy" applies to most situations. Nearly everything in the way of a personal right can be knowingly, freely, and unconditionally waived. Let's suppose the employer presents the employee with a written waiver of privacy rights, stating that employment is conditional on signing the waiver. Let's suppose the employee is in two distinct situations: a) applying for employment and b) currently in the employment, at the time the waiver is presented. Let's also suppose the waivers concern the following three situations:

1) otherwise private bedroom activity at home is subject to being videotaped and monitored;

2) bathroom use at work is being videotaped and monitored;

3) emails of all types to all persons either sent or received at work on company computers, whether relying on company servers or private servers, will be subject to monitoring.

Now, the two categories of situation will be a) 1,2, or 3, and b) 1, 2, or 3.

I believe, based on years of experience, that a Supreme Court would ask: is there a fundamental, well-established, and important public policy that is so compromised by the waiver that we as a society will declare the waiver invalid as a matter of law, irrespective of the employee's willingness to sign the waiver? Whew, that's a long-winded question, but just the kind of question Court's are logically going to ask. So, bear with me.

The hypothetical questions aren't such a stretch. A U.S. Supreme Court case many years ago held in Griswold v. Connecticut that a state could not enforce a law prohibiting contraceptives because enforcement would put the government in a couple's bedroom. Here in California, there was a major trial verdict upheld on appeal awarding an employee megabucks against a company whose manager placed a secret camera in the women's restroom. Likewise, email that is sent over a private email server (such as Gmail or Yahoo) is considered "private" even if sent from work on working time.

I believe a court is more likely to uphold a denial of employment for refusal to sign a waiver of privacy rights at the time of application, but less likely to uphold a termination of an existing employment because of failure to sign such a waiver. The basic reasoning is that an employee can turn away from the prospective job, and find another opportunity if the privacy waiver is unacceptable. [Like all principles or logical premises, this statement has its exceptions, especially in the present economy, but some courts have ruled just this way]. On the other hand, a current employee who took the job expecting one level of privacy should not be required to release that privacy level in fear of losing his or her job. In effect, I think a court would view this situation as one of the employer changing the rules of the game.

As for the 6 hypothetical examples (3 in each category) stated above: I predict that in both the "pre-employment" and "post employment" situations, a court would invalidate the waivers in situations 1 and 2. The reason is that even if a "pre-employment" applicant were to "voluntarily and knowingly" waive a fundamental privacy right, society itself has an interest in restricting waivers for the broader public good. That is, the court will indulge a presumption that no reasonable person would sign such a waiver or be required to sign consent to such an extreme invasion having no discernible relation to the employer's legitimate business. By analogy, courts do this all the time in the field of contract law. For example, courts will not enforce contracts that have a criminal purpose or outcome, such as prostitution or drug dealing.

Hypothetical situation number 3 above is closer to a "real world" situation. Applying the same principles, the questions would be a) what is the generally accepted level of privacy accorded to private-server email use at work and b) what is the level of an employer's legitimate interest in monitoring that class of email? For example, could an employer convince a trial court to enforce a subpoena directed to the employee and that was focused on content concerning the employer's business? I conclude that a court would uphold the pre-employment waiver for situation number 3, and would invalidate it in the "post-hire" situation unless the waiver was clearly limited to subject matter directly related to legitimate business interests. [Sorry reader, these terms beg the point, I know]. One way to think of the "waiver" in the "post-hire" situation is to compare it to a "confidentiality agreement" concerning the company's trade secrets, processes, and marketing. These agreements are ubiquitous, and often upheld. Steps taken to monitor compliance with the "confidentiality agreement" if not unduly restrictive, will be upheld.

Answering the two guiding questions, there is a fairly high and well-established general privacy expectation that private server email will be private, but there is also a reasonable employer restriction of that privacy expectation insofar as it concerns confidential company subjects. I conclude that a court would enforce a company waiver of private server email privacy if the waiver was limited to subjects of company business. I believe a court would also enforce a subpoena served on the employee [as opposed to the ISP] if the subpoena was highly focused and limited to identify company trade secrets or proprietary information.

One additional consideration often weighed by courts is whether the consent and waiver of privacy is limited to the use of the company's network and computers to access or create the private information. Likewise, a court may consider if the employee posted the "private" information while being paid on company time.

The answer will likely depend on how clearly and frequently the employer communicates its policy that such information is not private, and must be made fully accessible to the employer on request. For example, if an employee is using the company's computer systems to access his or her Facebook account, and if the company has a policy stating nothing going over its systems is to be considered "private", a court is more likely to uphold the privacy waiver. In contrast, an employee using his private cell phone account (that is, the phone and the bill are entirely the employee's, with no employer subsidy), to post negative information about the employer on Twitter, MySpace,Facebook or other networks, the waiver is less likely to be legally valid. The exception may be if the employer has a clearly communicated policy acknowledged by the employee that postings to social networks during company paid time will be deemed the property of the employer, and subject to full access by the employer upon request.

Now, back to Joe. Joe uses Facebook, and has slandered his employer and its product with numerous "private" posts. He has given a new meaning to "viral marketing". He claims he can do so with impunity because of his freedom of speech and privacy rights. He claims his password requirement is itself evidence of the "private" nature of his communications. Of course, Joe could have a totally public site accessible to anyone registering with Facebook. That is hardly a "private" communication when visible to virtually the world. But Joe says he limits the postings to viewing by his friends and their friends.

An employee communicating to 50 or 500 "friends" may still have a privacy expectation if those "friends" are part of a limited group allowed access only by invitation and consent, similar to a "private" club. The size of the group is not as significant as the selectivity and exclusivity of the group. Why? Persons outside the group are not privy to the communications inside the group, and so any person in the group can plausibly argue that he or she expected privacy.

The matter is complicated when an employer has the consent of one participant to the group to enter the group, but not the others, and the others' private communications are inevitably discovered by the employer as well. It is easy to envision multiple firings of co-employees who "trusted" the confidentiality of the password protected membership. Could those co-employees successfully assert that one member's waiver of privacy did not operate to waive their privacy, or did they "assume the risk" that any one member could violate the privacy expectations of all? My actual experience with the free flow of members in and out of groups, with few barriers to entry except a "click" requesting "friend" status, often freely given, indicates a court would likely hold that all participants voluntarily assumed the risk that their communications would be viewed by a third party (such as an employer) they would rather have excluded.

In summary, employees should not assume privacy of social network communications simply because they register and use a password. An employer can enhance the chances of a court upholding a privacy waiver if the employer presents a clear, and fully articulated company policy that identifies social network communications as subject to monitoring if those communications occur on company paid time, and/or with the use of company owned Internet or computer systems. Even then however, employers will have to demonstrate the scope of their monitoring was limited to social network communications impacting the company's legitimate business interests, such as company morale, insubordination, confidentiality, marketing, or public relations.

This article is unusual for many legal articles because it attempts to predict what cases will hold, instead of explaining the implications of cases already decided. Still, this degree of speculation can be helpful as the social networking phenomenon is eventually tested by litigation by employees claiming invasion of privacy and wrongful termination of employment.

As for our disgruntled "friend" Joe mentioned at the beginning of this article, his posting will be deemed "private" if the employer has no policy in place stating such postings are subject to employer access and monitoring, and that Joe or others will be potentially fired if they refuse to grant employer access on request. On the other hand, if Joe accepted employment, and at that time, signed an acknowledgment of the privacy waiver policy as a condition of employment, Joe will likely not have a legally enforceable privacy expectation to the postings. If Joe is requested to sign a privacy waiver after commencing employment, and to comply with a new policy of waiver and consent, that policy will likely be enforceable if it is limited to future communications only, and Joe is given reasonable notice of the date the policy is to take affect.

"If the pink slip doesn't fit,
get redressed!"
Click to see my wardrobe of remedies.

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Big Brother Has Even Bigger Eyes.

2008-11-25T13:38:00.000-08:00

GPS: GROWING PRIVACY SCARE.

GPS is ubiquitous. I use it to track my walks, runs, and bike rides. It records my pace, total distance, altitude variations, and produces a graphic map of my completed route. I can take iPhone pictures along my route and tag points on the route to coincide with the picture. I synchronize the data with a website that records all my events in an quickly accessible data base. Of course, GPS is a new necessity for many people, increasing from about 1/2 million to 15 million in just 4 years. All late model vehicles are equipped with the units.

So, what does this have to do with employment law? Maybe the answer will come to you as you reflect on some micromanager in your career. Maybe you can still hear one of his or her most used questions: Where were you? or Where have you been? GPS provides the answer.

Employment law is of course concerned about privacy in the work place. The right of privacy turns on the general idea of a person reasonably expecting to be left alone or unmonitored in certain situations. The answer is never "one size fits all". Privacy is unique to each environment and each person's role in that environment. In the work environment, the employer can define the limits of your expectations of privacy by disclosing to you that your desk drawers or locker may be searched, or that your email may be monitored, or that internet usage is to be for business purposes only. Most information workers are aware that their employer has an interest in protecting that information from dissemination, and that security precautions are installed to curtail theft or misuse of data. The Sarbanes-Oxley Act for example requires precautions to be designed, installed, and policed to prevent insiders from profiteering from sensitive market information.

Before GPS, I remember the favorite ploy of employers looking for a reason to terminate an employee was to conduct an audit of his employment expense sheets. With a few calls, a bill could eventually be found that was inflated or not clearly related to work. Now, the employer can make a stronger and even more convincing case by using GPS tracking data to show an employee has lied about his whereabouts. The reason is that GPS is not just real time, but historical. Think of your iPhone, Blackberry, or your company vehicle's GPS as an in flight "black box" that records a multitude of travel information. To state the obvious, it tracks where you are. The System also tracks where you were at all points on the route, your speed, your braking patterns, and your signaling, and yes, the times of day these events occurred. Your movements can be real time or later monitored on a company computer. If a car is part of your compensation, your "off-work" use of the vehicle will be monitored too as a practical matter because you can't disable the factory equipped system. Many computer applications now identify businesses (restaurants, bars, hotels) located within a tight radius. Where you likely spent your free time may be discoverable with a few clicks by an intrusive employer. Don't assume that because you rented a vehicle, your employer cannot obtain GPS tracking data from the rental company. If your employer is paying the bill as the designated customer, while you are only the designated driver, the employer may obtain the tracking information from rental car company.

So, there is no bright line privacy protection test. Generally, where you are paying all or part of the mobile phone bill or the rental car fees, or providing your own transportation in your own vehicle, and use the phone or vehicle for both business and personal use, you will have a good argument that at specific times of day and for specific personal uses, you privacy rights apply to refuse to answer employer inquiries of "where were you?". But the converse is true: when you're on company time and the company is paying for the use of the phone or vehicle, you likely do not have an enforceable privacy expectation, especially if the employer has put you on written notice that your movements will be monitored.

"If the pink slip doesn't fit,
get redressed!"
Click to see my wardrobe of remedies.

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Salacious Text Messages Not Subject to Police Search

2008-09-18T15:16:00.000-07:00

Subtitle: What's Wong with Quon?

What do police officers do after finishing off a few donuts? Well, this one idled away his time by sending sexually explicit text messages on his Department provided text pager. When his commanding officer checked the content of the messages, well, Officer Donut was busted. Not to be dressed down, the officer sued for invasion of privacy. One would think this suit had a hole in it bigger than a super-glazed, but no, the Ninth Circuit found a way to protect the officers "reasonable expectation" of privacy to send titillating one liners between arrests.

The key fact giving rise to the right of privacy: The Officer paid for the cost of the text messaging over the set amount allocated for official use. [Apparently Officer Quon sent a lot of messages, and so paid a lot of the bill].

The general rule is that so long as employees are put on notice that they are subject to searches of electronic communications conducted on company equipment, employers may conduct such searches. The court in Quon v. Arch Wireless Operating Company did not change that principle. It noted that had the City not exercised the unofficial policy of accepting payments for overage, its actions would not have constituted an invasion of privacy. Notably, its "Computer Usage, Internet and E-mail Policy" and staff meeting would have been sufficient for putting Sergeant Quon on notice that he could not expect his communications to be confidential. The unofficial policy, however, belied the official policy and obstructed whatever notice Sergeant Quon may have had of the possibility of the search.

"If the pink slip doesn't fit,
get redressed!"
Click to see my wardrobe of remedies.

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She Didn't Make the Cut

2008-07-14T10:44:00.000-07:00

This could be the beginning of a dark thriller. A nursing home worker wears a knife concealed under her closing. The employee is part of a group that requires the knife to be worn at all times. A number of mysterious deaths occur at the nursing home.

But no, the thriller turns into a more mundane drama of the EEOC v. the Nursing Home for denying a baptized Sikh from wearing a kirpan. A kirpan is a ceremonial knife worn by Sikhs as a religious symbol. It is not used to cut feeding tubes or terrorize co-employees. Somehow, the nursing home management, perhaps due to an onset of contagious dementia, felt that it had to make the workplace safe from all knife wielding employees, and so allegedly gave Baljit Kaur Bhandal an ultimatum, shed the knife, or shed the job. She elected the latter, and sued her employer for constructive termination based on religious discrimination.

Currently, the matter is just a suit, but the EEOC says the Nursing Home acted with malice, and deserves to be punished. Stephen King could have much more fun with this than the EEOC.

EEOC v. Heartland Employer Services, LLC, No. 08 CV 00460, complaint filed E.D. Cal. Sacramento, Feb. 28, 2008.

"If the pink slip doesn't fit,
get redressed!"
Click to see my wardrobe of remedies.

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Saturday Night in the Office

2008-03-29T21:25:00.000-07:00

It's Saturday night, and I came into the office about 3 hours ago to work. Instead of holding my loved one close, I am consoled by her picture on my desk, knowing she is sleeping in London, England tonight. Instead of choosing which music or wine, I was confronted with the scintillating choice of doing taxes or working on an overdue client project. Occasionally, I do exactly the disciplined thing, without hesitation. Tonight, I chose the easier and less noble alternative: I cleaned up my blog site a bit, and whined for all the world to see. To justify this, I reminded myself that the underdog Xavier (which happens to be my middle name)lost tonight to U.C.L.A. in the NCAA battle among the Elite 8. I typically represent the underdog, and so find myself invariably rooting for teams like Xavier who repeatedly get their shots blocked, their rebounds knocked away, and their dribbles stolen for a fast break and dunk, yet somehow keep fighting, and just maybe creating an upset. It seems to me that life is measured against overly simplistic standards: you win or you lose. I have run 2 marathons and 3 half marathons, two of the halves this year. When I run, I invariably see the young and strong achieve the best times, and by ranking, the glory. Yet, it seems to me, the improbable grandmother who takes up running late in life, and gives it everything she's got, is just as worthy of applause, yet she must be her own source of accolades. She did not "win", and so receives no glory. So I, coming into work tonight and again tomorrow, receive no glory, and need none. I have run against my own time, and am content.

"If the pink slip doesn't fit,
get redressed!"
Click to see my wardrobe of remedies.

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Good God It's Morning or Good Morning God?

2007-08-16T19:45:00.000-07:00

Most employers think any support of a spiritual or religious activity at work is prohibited. Not so. What is prohibited is partiality of one employee or group because of religion. What does that mean? It means that if the employer sets the rules of a religiously motivated meeting, such as a scripture study group, to insure no discrimination, then the meeting is permitted by law. So, if an employee declines to attend, that decision is not to be met with threats of either human or divine retribution. Finally, if a group of wiccans want equal treatment in access and use of facilities, or allocation of time for a meeting, they are to be given equal treatment with any other group, including traditional Christian mainstream believers.

To state the obvious, the employer can set reasonable limits to assure such meetings do not interfere with normal work operations and productivity. Why would an employer allow these employee meetings? The result is often employee appreciation, and greater productivity.

"If the pink slip doesn't fit,
get redressed!"
Click to see my wardrobe of remedies.

Crazy for Love -- UCLA Psychiatrists in Litigation

2007-02-13T17:02:00.000-08:00

He's handsome, he's charming, and maybe he's sexually harassed. Currently on file with L.A. Superior Court is a sexual harassment case by a UCLA male resident against his female supervising physician. He claims he lost a coveted position because he broke off sexual relations with her. He was to be the chief resident of his supervisor's clinic, he alleges, but she denied him that opportunity when he broke it off. Her defense is that he is obsessed with sex, and that the liaison never occurred. [I assume the defense attorney thought the "obsessed with sex" defense was a pretty safe position to take regarding a healthy intelligent male in his 30s.]

To add to the drama, she has filed a separate sexual harassment suit against another UCLA psychiatrist, and she claims UCLA administrators retaliated against her when she complained of his sexual harassment.

Now back to the first drama, the one of him vs. her. In that one, UCLA states it did not allow him to become a chief resident because of the "appearance" that if you sleep around with the supervising physician, you will be more likely to get promoted. This defense, you will note, does not admit the "sex for jobs" relation exists, just that there is a feared appearance--something like a "ghost" of a chance.

Now, as a lawyer, I think resolving these convoluted allegations is best done in a public court of law, so that everyone becomes a public spectacle, and people can "act out" through their lawyers, which is much safer than acting out directly. On the other hand, these folks know the power of medication, and perhaps a little sedation would work just as well, while keeping things more private. The problem seems to be that old adage: "Physician, heal thyself".

"If the pink slip doesn't fit,
get redressed!"
Click to see my wardrobe of remedies.

U.S. Supreme Court decides for the little guy

2006-08-03T10:04:00.000-07:00

California Courts interpreting California anti-discrimination laws often look to federal court decisions interpreting federal anti-discrimination laws under “Title VII”. A recent U.S. Supreme Court case, Burlington Northern & Santa Fe Railway Co. v. White (Decided June 22, 2006) is positive for employees who claim they have been injured by employer retaliation because they protested discriminatory employer actions.

In Burlington, plaintiff Sheila White was the only woman working in her department as a forklift operator at Burlington Northern & Santa Fe Railway Co. After White complained internally that her supervisor had remarked several times that women should not be working in such a department, Burlington removed White from her forklift duties and assigned her to perform laborer tasks. Burlington explained that the reassignment reflected co-worker’s complaints that a “more senior man” should have the “less arduous and cleaner job” of forklift operator.

White then filed an EEOC complaint based on unlawful gender discrimination and retaliation. A few days after the filing of her complaint, Burlington suspended White without pay after an alleged disagreement with her supervisor, who claimed that White was insubordinate. White invoked internal grievance procedures. Burlington concluded at the end of the grievance investigation that White had not been subordinate. Burlington therefore reinstated White and gave her back-pay for the 37 days she was suspended.White then filed a claim in federal court alleging that Burlington’s corrective actions were insufficient. She argued successfully that reinstatement and back-pay did not address the full measure of her losses, including her emotional injury.

Burlington argued that White wasn’t harmed enough to justify a lawsuit. The Supreme Court focused on just how much employment harm must occur for an employee to prove “adverse employment action”. Requiring an employee to have extreme or obvious economic harm would operate to limit the number of cases that would succeed. On the other hand, requiring little injury would operate to put employer’s on notice that retaliation, even if mild, could result in liability. The test adopted by the U.S. Supreme Court was whether, from the viewpoint of a reasonable employee, the actions taken against the employee were sufficient to deter the employee (and others like her) from complaining about illegal discrimination. The Court found that being without pay for 37 days would deter a reasonable employee from exercising her rights to complain internally of discrimination, even if she had access to a grievance procedure.

The California Supreme Court in Yanowitz v. L’Oreal (2005) addressed much the same question as the U.S. Supreme Court in Burlington, but reached its decision some months before the federal court. The Yanowitz Court held that an employee suing for retaliation under California’s anti-discrimination law must demonstrate that the employer's retaliation caused a "material affect" on the "terms, conditions, or privileges of employment". The State Supreme Court explained that a “material affect” was one that 1) detracted the employee from her job performance, 2) discouraged her from remaining on the job, and 3) kept her from advancing in her career.

The two Courts, while using different standards of “deterrence” [Burlington] or “material affect” [Yanowitz] actually are quite close in how they define “adverse employment action”. Therefore it is likely that California Courts will rely on the analysis of the Burlington Court to decide future State discrimination/retaliation cases. Employee attorneys would be wise to cite the Burlington case as a source of guidance, if not precedent, when presenting proof of "adverse employment action".

"If the pink slip doesn't fit,
get redressed!"
Click to see my wardrobe of remedies.

Putting your money where your mouth is

2006-04-07T14:49:00.000-07:00

In California, abusive language can cost about $3195.17 per word. Hope v. California Youth Authority, 134 Cal. App. 4th 577 (2005)

The jury awarded Bruce Hope $917,104 in economic damages and $1 million in emotional damages after he was repeatedly called demeaning names and his employer did nothing to stop the abuse.

While Hope worked as a cook at a youth correctional facility, he was subjected to several derogatory remarks based on his sexual orientation. Many of these remarks were made by his immediate supervisor, Marcellino, and a security officer assigned to the kitchen named Ortiz. Hope estimated that Ortiz called him a “faggot ass mother f****r”around 150 times.

Ortiz disliked Hope, in part because Hope had once reported Ortiz for giving an unknown substance to one of Nelles's youthful offenders, or wards. Hope believed that Ortiz's "whole attitude" toward him changed after this incident.

Ortiz called Hope a “faggot ass mother f****r” in front of the wards while they were serving dinner. Thereafter, the wards began treating Hope differently, calling him a "faggot" and ignoring his instructions.

Hope claimed that Ortiz "would take trash and throw it all over my area." Ortiz once threw a trash can in an area Hope had just cleaned. At other times, other individuals threw food or trash in a cleaned area. Each time, Hope had to clean the area without help.

Hope approached one of his supervisors, Hedgepath, who had witnessed the harassment against Hope. When his supervisor advised Ortiz to stop, Ortiz refused. Hedgepath, from then on, merely ignored Ortiz’s harassment. Although Hedgepath believed that Ortiz did not like Hope because of Hope's sexual orientation, Hedgepath did not report any of this to his superiors and told Hope he could not control the perceptions of others.

When Hope complained to the food manager, Yamamoto, she informed Hope that she believed the harassment was due to his sexual orientation. When Hope’s supervisor Marcellino referred to Hope as a "faggot" in front of other employees, Yamamoto made no effort to correct his behavior. She would simply tell Marcellino to "calm down."

Hope was promoted to a new position but then four days later, his promotion was revoked.

Hope complained to Yamamoto that "on many occasions" Ortiz had caused him problems, resulting in "an ongoing harassment problem." The memo concluded, "I would like some kind of resolution to these matters. I have exhausted all of my efforts to resolve these matters myself with no success. I am requesting assistance from you. This ongoing harassment ... by Mr. Ortiz needs to be addressed by higher authority."

No action was taken against Ortiz.

Hope began missing work because of stress. Hope’s psychiatrist testified at trial that the stress on Hope caused him to lose vision in one eye. Hope complained again, and this time got warned for sleeping in the bathroom, which Hope claimed was due to HIV medication he was taking.

The harassment towards Hope never stopped. Hope was placed on a medical leave of absence, but never returned to work

The Court of Appeals concluded that Hope believed that the work environment was hostile and offensive, and there was substantial evidence that Hope was subjected to harassment that was sufficiently severe or pervasive to create a hostile work environment.

"If the pink slip doesn't fit,
get redressed!"
Click to see my wardrobe of remedies.

Monkey Business

2006-03-15T14:39:00.000-08:00

The Gorilla Foundation in San Francisco recently settled claims by two former employees, Nancy Alperin and Kendra Keller, who were allegedly sexual harassed when forced to show a gorilla their bare breasts.

Apparently, the foundation president Francine Patterson interpreted the sign language of Koko the gorilla and determined that Koko was curious about the breasts and nipples of Alperin and Keller. The plaintiffs claimed that Patterson told them that "if [they] did not indulge Koko's nipple fetish, their employment with the Gorilla Foundation would suffer."

The plaintiffs believed that they were never informed prior to accepting their job offers that they would be required to take off their clothes to bond in a more personal way with Koko.

Both women claimed they refused to show Koko their nipples.

The Gorilla Foundation had denied that Patterson ever translated Koko's communications into sexual requests: "There are no allegations that Dr. Patterson's translations were sexual advances of any type, that the statements involved 'sex,' or that they resulted in any adverse consequences to Keller or Alperin," its response said. "There are no facts suggesting any discrimination based on conduct of a sexual nature."

Alperin and Keller asked for more than $1 million in damages in their sexual discrimination and wrongful termination suit. However, attorneys on both sides declined to comment on the terms of the settlement agreement.

Incidentally, Koko's first words, "eat," "drink" and "more," evolved into a vocabulary of some 1,000 signs, including such abstract concepts as "love," "jealous," and "shame." Koko actually had a live inter-species internet chat in 1998.

"If the pink slip doesn't fit,
get redressed!"
Click to see my wardrobe of remedies.

Shuttling back and forth

2006-03-09T14:39:00.000-08:00

Have you ever wondered whether you should be compensated for your travel time to and from work because, well, you're being forced to travel? A man named Bobby Overton attempted to be compensated by his employer for his travel time, and lost! He claimed that Disney should compensate its employees for the required mile long journey on the shuttle headed to the Happiest Place on Earth.

Of course, the Court was quick to point out that the shuttle was not the only way Disney employees could get to work. For example, some employees arrived in buses, some in trains, some were dropped off by friends and family, and some came in vanpools. The fact that these individuals did not take the shuttle indicated that the shuttle was not required.

The Court distinguished Overton's case from a claim brought by certain agricultural employees who were forced by their employer to park and group at the Disneyland parking lot, travel in the Disneyland shuttle that the employer paid for, and arrive at the fields where they worked. In this case, the employees were forced to take the shuttle by their employer, were subject to the control of the employer, and thus had to be compensated for their shuttle ride.

Overton's ingenuous solution of moving the time clock from the main entrance to the shuttle departure area in the Disneyland parking lot did not sit well with the Court. The Court noted that many employees could take advantage of this solution by walking (very slowly) to work instead of taking the shuttle, or having a hearty meal in between punching in and showing up for work. Also, with this solution, Disney would have to redirect employees who took other forms of transportation to the parking lot just so that they could punch in! Obviously, the Court decided not to force Disney to take such drastic measures and instead slapped Overton with the costs of Disney's appeal.

"If the pink slip doesn't fit,
get redressed!"
Click to see my wardrobe of remedies.

Chicken plant sued for racial bias

2006-02-27T12:49:00.000-08:00

The U.S. Supreme Court has recently held that racial discrimination may be evidenced by use of the term 'boy', regardless of whether a racial classification (such as 'black' or 'white') has been made.

The decision is one of the first with new Supreme Court Justice Samuel Alito.

Two African-American superintendants at Tyson Foods, Anthony Ash and John Hithon, sought to be promoted to two open shift manager positions. Ash had 15 years experience with Tyson Foods and Hithon had 13 years. Two white males were eventually selected for those positions instead. One of these white men had less than two years experience.

Ash and Hithon sued Tyson, alleging that they had been discriminated against on account of their race.

The Court found that there was evidence that a Tyson plant manager, who had made the decision not to hire Ash and Hithon, had referred to both Ash and Hithon on several occasions as "boy".

Ash and Hithon's attorney argued that the term "boy" was offensive, was considered a slur by other courts, and had its origins in the slave era.

The lawyers for Tyson Foods said that evidence showed the manager "was rude and curt to all employees - white and black - but had never used racial epithets."

The Court unanimously decided that even though the use of the word "boy" in and of itself did not always imply racial discrimination, there was a possibility that it could. According to the court, the meaning of the word depended on several factors, such as context, inflection, tone of voice, local custom, and historical usage.

The case has returned to the 11th U.S. Circuit Court in Atlanta for the court to reconsider the case.

"If the pink slip doesn't fit,
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California law trumps federal law averaging minimum wage

2006-01-09T12:39:00.000-08:00

In a case of first impression, the California Court of Appeal has ruled that even though federal law permits an employer to use the "averaging" method to determine if an employer has met its minimum wage obligations, California wage and hour law does not permit such "averaging."

In Armenta v. Osmose, Inc. (Dec. 29, 2005), plaintiffs were union members subject to a collective bargaining agreement that provided that employees should be paid hourly wages ranging between $9.08 to $20.00 per hour. The employer Osmose, Inc. was a business relating to the maintenance of utility poles. The plaintiffs' work time was classified as either "productive" or "nonproductive." "Productive" time was time directly related to maintaining utility poles in the field. "Nonproductive" time was all other time including, but not limited to, time maintaining and cleaning the trucks used during "productive" time, repairing tools, driving to and from job sites, preparing paperwork, and the like.

The plaintiffs claimed that, while they were paid for their "productive" time at their regular hourly rate of pay, they were not paid at all for their "nonproductive" time. Osmose claimed that when the number of hours the employees worked per week was divided into their wages for that time period, it "averaged" out to more than the minimum wage.

The trial court found that Osmose violated California's minimum wage laws by using the "averaging" method of determining minimum wage compliance. The Court of Appeal affirmed the trial court's decision. In so holding, the court explained that, while the "averaging" method is acceptable under the federal Fair Labor Standards Act (FLSA), it is not acceptable under California wage and hour law. The FLSA requires payment of the minimum wage to employees who "in any work week" are engaged in commerce. By contrast, California law requires employers to pay employees wages not less than the minimum wage "for all hours worked" in the payroll period. The court explained that this language requires employees to be paid for each hour worked.

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Sexual harassment can put damper on Christmas parties

2006-01-04T13:06:00.000-08:00

From the Bakersfield Californian:

The two most worrisome terms a company personnel manager can string together in a sentence might be these: open bar and office Christmas party.

One employee’s idea of dance-floor enthusiasm might not agree with that of the co-worker he has just coaxed under the disco ball. One employee’s willingness to set aside his 9-to-5 inhibitions might not jibe with that of his more discreet associates. Add a half-dozen vodka tonics to that imbalance and it only gets worse.

Meet AB 1825, which becomes law Jan. 1. If you run a company with more than 50 employees or contract workers, you should already have been introduced. The new law, signed into law in September 2004 by Gov. Arnold Schwarzenegger (who, I’m told, knows a thing or two about sexual harassment allegations), requires employers to provide training for supervisors every two years.

Sexual harassment isn’t just an appropriate topic now because the law is about to take effect. It’s appropriate because we’re moving deeper into that most treacherous of potential sexual-harassment minefields, the company Christmas party.

“You get it all this time of year,” said Bakersfield attorney Daniel Klingenberger. “Employees need to remember that just because it’s outside of normal work hours, they still need to treat each other with respect. A lot of these issues have to do with respect. And hopefully people will show respect even after a couple martinis.”

Sexual harassment has been in the workplace vernacular for years but, even with companies paying plaintiffs sizable liability damages in court, some supervisors still don’t seem to get it.

“In some ways things haven’t changed much as far as the complaints I get,” Klingenberger said. “The jokes. The sexual innuendo. There’s probably less of that than there was. More and more people realize that’s off limits, but it certainly still happens.”

Bakersfield attorney Thomas Anton says that a company’s demonstrated level of commitment can mean almost as much as the actions of its employees.

“What’ll happen is, one of the plaintiff’s lawyers will say, ‘Wait a minute, has anyone taken a look at whether you’ve conducted your training?’” Anton said. “If you have, that’s one thing. But if you haven’t, that’s an indication you didn’t follow the law and you don’t care. Now we’re looking at punitive damages.”

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Settlement for lost wages taxable

2005-12-28T14:30:00.000-08:00

After Jack Rivera settled his race discrimination cases against his employer for the “sum of forty thousand ($40,000) less all lawfully required withholdings", he received a settlement check in the amount of $25,140 after his employer retained $14,860 as a 'lawfully required withholding.' The amount withheld included $10,000 in federal income tax, $3,060 in Federal Insurance Contributions Act ('FICA') tax, and $1,800 in state income tax.

Rivera cashed the check, but refused to dismiss his case, contending that the withholding was excessive and not required by law. He argued that the settlement proceeds were intended to reimburse him for personal physical injuries and should therefore be excluded from his gross income under 26 U.S.C. Sec. 104(a)(2). Rivera also argued that even assuming that the settlement proceeds represented lost wages, an award of back pay was not subject to tax withholding.

The Ninth Circuit held that Rivera's settlement for race discrimination did not fall within the Internal Revenue Code exclusion for physical injuries or sickness. It held that there was neither an express designation of settlement amounts apportioned to physical injury, nor any evidence that this purpose was intended by the payor. Second, the panel held that "back pay and lost wages constitute 'wages' for taxable withholding purposes, and the district court properly held that these settlement payments were subject to withholding.

Case: Rivera v. Baker West, Inc., No 03-17261 (9th Cir. Dec. 13, 2005)

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Body Piercings, Tatoos, Hairstyles, Fashion Statements

2005-12-21T14:50:00.000-08:00

The following article is taken from law.com and was written for the New York Law Journal as:

"Keeping Up Appearances at Work"-- Louis PechmanNew York Law JournalDecember 16, 2005.

It is generally recognized that employers are free to set reasonable dress codes and grooming standards that are business-justified and applied in a nondiscriminatory manner.

In the case of individuals with tattoos and piercings, there is no federal or state law that affords them explicit protection from employment discrimination on the basis of their appearance. Employees in such cases have met with limited success in trying to establish a connection between their body art and a protected class such as religion, gender or national origin.

PIERCINGS

In Cloutier v. Costco Wholesale,[FOOTNOTE 1] Kimberly Cloutier, a Costco cashier who was terminated after refusing to remove her eyebrow piercing, alleged that she was discriminated against based on her religion. Cloutier refused to comply with Costco's dress code prohibiting facial or tongue jewelry, citing her membership in the Church of Body Modification, which practices piercing, tattooing, branding, transdermal or subcutaneous implants and body manipulation such as flesh hook suspensions and pulling. The church proclaims that it is aimed at achieving acceptance in society so that its members may "celebrate their bodies with modification." Cloutier rejected Costco's proposed accommodation to cover her eyebrow piercing with a flesh-colored bandage, insisting that she be exempted from the dress code because her religion required her to display her facial jewelry at all times.

The 1st U.S. Circuit Court of Appeals found that Costco had no duty to agree to Cloutier's request that she be exempted from the dress code. In the court's view, such an accommodation would pose an undue hardship because it would have an adverse effect on Costco's legitimate business interest in maintaining a "neat, clean and professional image." The court held that a religious accommodation constitutes an undue hardship when it would impose upon an employer more than a de minimus cost, including lost business or noneconomic costs. The court recognized that "Costco is far from unique in adopting personal appearance standards to promote and protect its image" and observed that "courts have long recognized the importance of personal appearance regulations." Such dress codes, it added, which are designed to appeal to customer preference or promote a professional public image, have been upheld.

A dress code policy is permissible under federal and state discrimination laws as long as it is enforced on an equal basis. In Kleinsorge v. Eyeland Corp.,[FOOTNOTE 2] Frank Kleinsorge, an optometrist, was terminated "for cause" for wearing an earring to work in violation of a workplace rule prohibiting men from wearing jewelry. He sued, claiming that the company's policy was discriminatory because women were permitted to wear earrings while men were not. The U.S. District Court for the Eastern District of Pennsylvania dismissed the claim because Kleinsorge did not allege that the company's grooming policies were unevenly enforced as between male and female employees.

The Kleinsorge court relied heavily on a decision by the U.S. District Court for the Eastern District of New York, Capaldo v. Pan American Federal Credit Union,[FOOTNOTE 3] in which Judge Thomas C. Platt upheld a company policy prohibiting male employees from wearing earrings. Robert Capaldo, a loan counselor, was informed by the company's president that he did not present an appropriate professional image and was terminated for failing to remove his earring. The court, describing the company's policy as a "minor sex-based distinction in dress and grooming codes," dismissed the claim because there was no allegation that the company's policy was unevenly applied. Specifically, Capaldo did not assert that female employees at the company were free from all grooming standards or that the company unevenly applied its grooming policies as among male and female employees. Because the company did not impose special appearance rules on one sex and not the other, no inference of sex discrimination arose.
More recently, the Supreme Court of Iowa agreed that a company's grooming code that forbade male employees from wearing earrings at work did not constitute sex-based discrimination. In Pecenka v. Fareway Stores, Inc.,[FOOTNOTE 4] Michael Pecenka, a Fareway Stores employee was terminated for refusing to remove his ear stud while he worked. The court rejected Pecenka's claim of disparate treatment, noting that the discrimination laws "were not meant to prohibit employers from instituting personal grooming codes which have a de minimus affect on employment." Because the court concluded that the earring policy did not rise to the level of sex-based discrimination, the company did not need a business justification for it. The court also dismissed the claim of "sex-plus" discrimination, because wearing an earring is not an "immutable characteristic" and does not involve a "fundamental right" such as the right to marry or bear children and the company's earring policy was not alleged to perpetuate a sexist or chauvinistic attitude in employment that significantly affected employment opportunities.

TATTOOS

The unequal application of employment policies is always a source of potential liability for employers. In Hub Folding Box Company, Inc. v. Massachusetts Commission Against Discrimination,[FOOTNOTE 5] Deborah Connor, a clerk at the Hub Folding Box Co., sued her employer for gender discrimination and retaliation. Although a male employee was not required to cover his Navy tattoo, Connor was told to cover a heart-shaped tattoo on her forearm or be terminated. The company was concerned that customers who saw Connor's tattoo would have a negative reaction because a tattoo on a woman "symbolized that she was either a prostitute, on drugs, or from a broken home." In the employer's view, women with tattoos were ne'er-do-wells, whereas men with tattoos were heroes. The employer's reasoning, according to the court, was based on outdated gender stereotypes and constituted an unlawful basis for treating men and women differently in the workplace.

Disparate treatment was also the basis of a discrimination claim in Riggs v. City of Forth Worth.[FOOTNOTE 6] Michael Riggs, a police officer, sued the Fort Worth, Texas, police department for discrimination because of his Celtic national origin, race and fundamental right of free expression. While other officers in the bike unit with tattoos were allowed to wear shorts and short sleeves, the department claimed that Riggs' tattoos were excessive to the point of being unprofessional. Riggs' tattoos included a Celtic tribal band, a Celtic design that included his wife's name, a mermaid, a family crest, the cartoon character Jessica Rabbit and a two-foot by two-foot full-color rendering on his back of St. Michael spearing Satan. The court found that Riggs failed to provide any evidence that the department's reasons for requiring him to wear long sleeves and pants or for transferring him out of his unit were discriminatory.

The nature of the images depicted by tattoos weighs in the balance where claims of religious discrimination are made. In Swartzentruber v. Gunite Corp.,[FOOTNOTE 7] Sheldon Swartzentruber, a member of the Church of the American Knights of the Klu Klux Klan, sued his employer for religious discrimination after being terminated because of his tattoo, which extended from his elbow to his wrist, depicting a hooded figure standing in front of a burning cross. The court held that the company reasonably accommodated Swartzentruber's asserted religious beliefs by allowing him to continue working so long as he covered his tattoo. Any alternative accommodation, the court suggested, would have imposed an undue hardship on both the company and Swartzentruber because the tattoo offended his coworkers and made them uncomfortable. Moreover, the court held that a claim for hostile environment harassment could not succeed because any harassment was a result of self-identification as a Klu Klux Klan member, not because of religious beliefs.

CONSTITUTIONAL ISSUES

Prohibitions against tattoos in the workplace have also been challenged on First Amendment grounds. Courts that have considered the issue have found that tattoos are not protected speech under the First Amendment. For example, the 8th U.S. Circuit Court of Appeals concluded that, "the tattoo is nothing more than 'self expression,' unlike other forms of expression or conduct which receive First Amendment protection."[FOOTNOTE 8] Because tattoos are not protected expression, an employer must show merely that the challenged classification is rationally related to a legitimate state interest rather than having to meet the more stringent strict scrutiny standard.

Even when a tattoo is deemed speech on a matter of public concern, the public interest at issue has been found to outweigh the employee's interest in displaying their tattoo. For example, in Baldetta v. Harborview Medical Center,[FOOTNOTE 9] John Baldetta, an HIV-positive hospital employee, was terminated after refusing to cover a tattoo saying "HIV positive." In finding that the hospital's interest in facilitating patients' recovery outweighed Baldetta's interest in "speaking" on a matter of public concern, the court relied on the opinion of doctors who concluded that display of the tattoo could cause stress in patients and hinder their recovery.

Employees have also failed to establish that the right to display tattoos is protected by the First Amendment right to free association and privacy. In Montoya v. Giusto,[FOOTNOTE 10] a group of corrections deputies alleged that their First Amendment rights were violated after they were terminated for displaying tattoos that read "Brotherhood of Strong." The U.S. District Court for the District of Oregon found that the decision to wear the tattoos did not enjoy constitutional protection because the tattoos, which signified "a loosely knit friendship of weight lifters," was not the kind of political, social, economic, educational, religious or cultural association protected by the First Amendment.

STATUTORY PROTECTION

A few local jurisdictions have enacted legislation prohibiting discrimination on the basis of appearance. The District of Columbia has prohibited discrimination on the basis of "personal appearance."[FOOTNOTE 11] Similarly, the city of Santa Cruz, Calif., has a statute barring discrimination on the basis of "physical characteristics."[FOOTNOTE 12] A unique statute in Madison, Wis., classifies "physical appearance" as a protected class, defining it in terms of immutable characteristics, such as height, weight and facial features, but also includes mutable characteristics like hairstyle, beards and manner of dress.[FOOTNOTE 13]

Although Wisconsin's statute protects appearance, employer requirements that are uniformly applied "in a business establishment for a reasonable business purpose" are exempted. The breadth of protection afforded by this statute was tested in Sam's Club Inc. v. Madison Equal Opportunities Comm'n,[FOOTNOTE 14] in which the Madison Equal Opportunities Commission decided that Sam's Club had violated the ordinance by terminating an employee who wore an eyebrow ring in violation of company dress code. The Wisconsin Court of Appeals reversed, stating "Sam's Club attempts to project ... a conservative, no frills, no flash image for its business; it does so because Sam's Club wants to convey to customers that they are getting the best value for their money." The court noted it was undisputed that facial jewelry and eyebrow rings in particular do not convey a conservative image. Inasmuch as Sam's Club's prohibition came within that exception of a "reasonable business purpose," its decision to terminate was held to be legal.

CONCLUSION

In sum, individuals with piercings or tattoos have limited rights in the workplace. It is the rare case where a protected characteristic of an employee is so inextricably linked with a piercing or tattoo that it implicates legal interest. Underlying this lack of protection is that tattoos and piercings are neither explicitly protected by statute nor immutable characteristics. Rather, tattoos and piercings are voluntary body art that an employer may choose to exclude from the workplace.

Louis Pechman is a partner at Berke-Weiss & Pechman, concentrating in labor and employment law.

::::FOOTNOTES::::
FN1 390 F3d 126 (1st Cir. 2004).
FN2 No. Civ. A. 99-5025, 2000 WL 124559 (E.D.PA. Jan. 31, 2000).
FN3 No. 86 Civ. 1944, 1987 WL 9687 (EDNY March 30, 1987).
FN4 672 NW2d 800 (2003).
FN5 750 NE2d 523 (Mass. App. Ct. 2001).
FN6 229 FSupp2d 572 (N.D. Tex. 2002).
FN7 99 FSupp2d 976 (N.D. Ind. 2000).
FN8 Stephenson v. Davenport Comm. Sch. Dist., 110 F3d 1303 (8th Cir. 1997).
FN9 116 F3d 482 (9th Cir. 1997).
FN10 Civ. No. 02-446-JE, 2004 WL 3030104 (D. Ore. Nov. 24, 2004).
FN11 D.C. Human Rights Act, §§1-2512 (1981).
FN12 Santa Cruz, Calif., Ordinance 92-11 (April 28, 1992).
FN13 Madison General Ordinance, §3.23(2)(bb).
FN14 266 Wis2d 1060, 668 NW2d 562 (Wis. Ct. App. 2003).

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Approaches and Tactics for Older Workers Who Can't Find a Job

2005-12-21T12:03:00.000-08:00

If you're over 40 and unemployed, you can try these tactics to snag a job:

Keep your skills current. Computer skills are especially important. Depending on what type of job you seek, be sure you are savvy on the Internet and with Windows-based programs, such as word-processing, spreadsheet, database, and presentation applications. Microsoft offers training programs though such organizations such as the AARP.
If you've been downsized, look for new work as soon as you can. The longer you're out of work, the harder it will be to land a new position.
Seek out companies that embrace older workers: The CVS drugstore chain is one example.
Networking is especially important for older workers because jobs at the senior levels are the least likely to be advertised. It's important to fight the perception that your skills and knowledge might not be on the cutting edge. Stay up to date with technological trends and be sure to demonstrate your savvy when you converse with network contacts.
Use networking venues as opportunities to show what you can do. Get involved with professional associations, volunteering or consulting. Perhaps join the board of a professional association and then work to demonstrate your skills to the membership. Or seek a consulting or volunteer role that will afford the opportunity to achieve measurable results and will enable you to build relationships with a wider network of people. As you become perceived as a valuable team member, your age will seem less relevant.
Broaden your pool of targeted employers.
Consider starting your own business -- and in the ultimate twist -- think about starting a business that targets other older workers as customers or employees.
If you're retired and already have a pension and health benefits from your old employer, consider working for salary only. If being productive means more to you than additional benefits, consider companies with programs in which workers in their 50's who would otherwise take advantage of early retirement provisions in their pensions are offered the chance to work reduced hours and supplement their reduced incomes by tapping those pensions.
Consider flexible options that may be advantageous to both you and the employer, such as a compressed work week, flextime, job reassignment, job redesign, part-time work, job sharing, phased retirement, or telecommuting.
Consider offering to put in odd hours that younger workers with family obligations might not be able to work.
Register with a temp agency so you can generate some income, update your skills, and build your resume while waiting for the perfect job. Some temp agencies even specialize in older workers.
Locate programs that help with job training and employability skills for older workers.
When all else fails, consider legal recourse.

(from quintcareers.com)

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Equal Opportunity Harassment: The Workplace Bully

2005-12-07T11:34:00.000-08:00

Bullying, as opposed to illegal workplace harassment, is a form of "equal opportunity harassment". Bullies pick on people without regard to sex, age, race, ethnicity, national origin, or disability. A recent reliable study estimates that approximately 1 in 6 U.S. workers has directly experienced destructive bullying in the past year. (according to a year 2000 scientific sample of State of Michigan residents)

Bullying transcends gender. Half of all bullies (58%) are women. Half of all bullying is woman-on-woman. Women comprise 80% of targets. The vast majority of bullies (71%) are bosses. [Research taken from the Workplace Bullying and Trauma Institute (WBTI)].

Bullies bully because they can; they do so with impunity. The complex answer to why bullies bully can be reduced to 3 factors: (a) some workplaces pit worker against worker in zero-sum (cutthroat) competitive schemes, (b) Machiavellian types (who live to manipulate others to accomplish their own goals) see the opportunities presented, and (c) in bullying-prone workplaces, employers reward the aggression with promotions and rewards. Bullies are rarely psychopathic, but are always narcissistic and Machiavellian. (Again, based on research by the WBTI.)

According to the WBTI research, bullies pick "Targets" who have two characteristics: a desire to cooperate and a non-confronting interpersonal style. Bullying poses a serious health hazard to Targets by compromising their psychological and physical health, disassembling their social network and risking economic devastation through the loss of their jobs because "employment at will" encourages the bully's whimsical misuse of power. Targets who are most surprised by the baseless cruelty inflicted on them suffer the most severe effects and take the longest time to heal afterward. Silent, frozen co-workers worsen the problem often by choosing to cut off support, to tacitly or directly join the bully's personal vendetta against the Target. Eventually, the workplace is paralyzed by fear, incapable of productive work, and susceptible to costly downtime with an unhealthy workforce and an increased liability for destructive employment practices.

Between 2003 and 2005, anti-bullying bills have been introduced in five states -- California, Oklahoma, Hawaii, Washington and Oregon. It has not yet become a law. The 'Healthy Workplace' Bill (sponsored by the WBTI) is advocated by its sponsors as a needed protection against the devastating emotional (and sometimes physical) workplace injuries caused by bullies. Opponents state that the proposed laws, while well intentioned, can't be adequately policed and enforced by a limited court system.

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Search for Nurses in California Is Feverish

2005-12-02T13:41:00.000-08:00

From the LA Times:

Competition to hire nurses in California is so intense that some headhunters routinely make cold calls to nursing stations at rival hospitals, desperate for recruits.

Others are sending out direct-mail pitches that read like time-share come-ons. Mission Hospital in Mission Viejo, for example, offers nurses a $200 gift card just to come in and take a look around. And in one extreme case, a nurse-staffing firm is using a $10-million Newport Beach mansion as a lure.

Scrambling to comply with California's first-of-its-kind law mandating 1 nurse for every 5 patients in most wards starting this year, hospitals are in a hiring frenzy reminiscent of Silicon Valley's lust for engineers in 1999. Gov. Arnold Schwarzenegger this month dropped his fight to suspend the law, leaving hospitals to cope with a labor shortage that is expected to grow for decades.

One hospital staffing agency, in an extreme example of creative recruiting, has turned to reality TV. It invited six nurses from around the country to work in local hospitals for 13 weeks while living in a mansion not far from the scene of MTV's hit reality show "Laguna Beach." The result is a show designed to tantalize nurses around the country with the joys of nursing in Southern California.

The show highlights the lives of "travelers," U.S.-trained nurses who bounce from hospital to hospital on 13-week contracts, following the sun, ski season and shifting staffing needs. The prevalence of travelers is one indication of the degree to which the nursing shortage has put power in the hands of employees.

Last year, 11,000 travelers moved to California from other states, along with about 3,700 foreign-trained nurses, according to a study this year by UC San Francisco.

"There's a limited supply of qualified RNs out there, and there's just a huge demand," said Evan Burks, executive vice president of Comforce Corp., a Woodbury, N.Y.-based staffing company. "As California hospitals have to meet those ratios, there is going to be a greater and greater push to bring traveling nurses from other parts of the country. It could make shortages elsewhere worse."

Nurse wages in California are the highest in the nation, up 23% over the last seven years to an average of more than $33 an hour. In competitive areas, such as Orange County, nurses can earn $30 an hour right out of school. Travelers make even more - as much as $60 an hour, on top of housing, meals, benefits and, often, signing or completion bonuses.
The shortage is expected to worsen as nurses - whose average age is nearing 50 - retire in waves. Those retirements will be in full swing just as the oldest baby boomers are reaching their 70s, a milestone that is expected to put a crushing demand on hospitals. With California's continuing population growth, the number of unfilled nursing jobs could exceed 122,000 by 2030, according to the UC San Francisco study.

And although nursing schools have succeeded in attracting students, a new problem has emerged: a nationwide shortage of nursing teachers. Today, a nurse with the experience and advanced degree necessary to teach can make two or three times as much as a hospital nurse manager.

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Manufacturers Report Worker Shortage

2005-11-30T13:57:00.000-08:00

From the LA Times:

WASHINGTON — More than 80% of U.S. manufacturers say they cannot find enough qualified workers to meet customer demands, according to an industry study released Tuesday.
After losing 3.4 million factory jobs since 1998, employers are struggling to find enough high-skilled machinists, technicians and engineers to keep production lines humming, the National Assn. of Manufacturers said.

Of more than 800 manufacturers surveyed, 13% reported a severe shortage of qualified workers and 68% said they experienced a moderate shortage.

"The survey exposes a widening gap between the dwindling supply of skilled workers in America and the growing technical demands of the modern
manufacturing workplace," said association President John Engler.

The report, released by the association, the Manufacturing Institute and Deloitte Consulting, found 83% of manufacturers were struggling to serve customers because there were not enough qualified workers.

Some struggled to produce enough to meet customer demand, whereas others could not meet targets for productivity or customer service.

The exodus of baby boomers from the U.S. workforce, a negative stereotype of manufacturing and a drop in the number of American students pursuing technical or engineering degrees are fueling the problem, Engler said.

The news Monday that General Motors Corp. would be cutting 30,000 jobs does not help the industry's image, but Engler said the United States remained a manufacturing powerhouse — especially in innovative and high value-added production.

Lowering costs, as foreign automakers have managed to do, will ensure even labor-intensive products can be built here, he said.

"There will be a lot of people building cars in America for a long time," Engler said. When manufacturers struggle to find enough qualified workers, Jeffrey Owens, president of Peoria, Ill.-based Advanced Technology Services, helps fill the gap.

"It's a pretty significant problem," said Owens, whose 1,500 workers provide factory maintenance for heavy machinery maker Caterpillar Inc. and industrial and aerospace conglomerate Honeywell International Inc., among others.

"A lot of people are retiring who are extremely talented, good people, and there's nobody coming in behind them…. The younger generation doesn't consider manufacturing a viable career alternative," Owens said.

Although the image of backbreaking labor in steel plants or on assembly lines may be what most Americans still think of when they imagine factory work, Owens said the modern workplace was often more about computers.

"You really use your brain a lot more than you use your back," he said. "There are some guys that can really work magic with the machinery to keep it running. Sometimes it's more of an art than a science."

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Keep on Truckin'

2005-11-29T12:31:00.000-08:00

Five truck drivers sued their former employer for violations related to meal breaks, rest breaks, and itemized wage statements.

Although the drivers' collective bargaining agreement provided the drivers with a 30-minute meal break every five hours and two 15-minute rest periods for every 8- and 10-hour shift, the employer neither scheduled meal breaks nor included rest breaks as part of the drivers' acceptable delays.

Because the employer did not schedule meal breaks, most drivers ate their meals while driving or entirely skipped their meal nearly every working day. The Court held that by pressuring the drivers to make more than one daily trip, the employer discouraged the drivers from stopping for lunch. The Court also stated that the employer could not assume that the drivers would take their meal breaks since employers had "an affirmative obligation to ensure that workers are actually relieved of all duty."

Although rest breaks did not have to be recorded, the Court held that drivers would not take rest breaks because employers did not include them in the list of acceptable delays (such as construction).

California Labor Code requires that employers who intentionally do not provide itemized wage statements to their employees, including hours worked, are subject to monetary penalties and guilty of a misdemeanor. While the drivers manually inputed the hours that they actually worked, the itemized statements always listed the drivers' hours as 40 hours per week.

The Court concluded that the employer failed to prove that it provided the drivers with adequately itemized wage statements and required rest and meal breaks.

Case: Cicairos v. Summit Logistics, Inc., C048133 (October 27, 2005)

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Conflict Resolution - Part 2 -

2005-11-23T11:27:00.000-08:00

From About.com:

Conflict Resolution Steps

You've decided resolving the conflict is more important than all of the reasons why people avoid conflict. Here are tips to help you practice less scary, less intimidating, more effective and successful conflict resolution, with an individual or a team.

Create an environment that is conducive to successful conflict resolution. Quiet, private settings work the best. Agree prior to sitting down together that the purpose of the meeting is to resolve the conflict. When you make this agreement, all parties arrive prepared.

Determine what outcomes you'd like to see as a result of the discussion. A better working relationship? A better solution to the problem? Increased alternatives for successful projects? A broadened understanding of each person's needs and wants? Thoughtful solutions and outcomes are infinite if you are creative.

Begin by allowing each party to express their point of view. The purpose of the exchange is to make sure both parties clearly understand the viewpoint of the other. Make sure each party ties their opinions to real performance data and other facts, where possible. This is not the time to discuss; it is the time to ask questions, clarify points for better understanding and truly hear the other's viewpoint.

Agree on the difference in the points of view. You must agree on the problem together to begin to search for a solution. Often problems are simply misunderstandings. Clarification can end the need for conflict resolution. Try to focus on the issues, not the personalities of the participants. Don't "you" each other as in, "You always ..."

Explore and discuss potential solutions and alternatives. Try to focus on both your individual needs and wants and those of the other party. After all, if one party "wins," that means the other party "loses." People who feel as if they have lost, are not effective coworkers. They harbor resentment and may even sabotage your project or relationship. Make sure you discuss the positive and negative possibilities of each suggestion, before you reject any suggested solutions. Build a discussion that is positive and powerful for all parties.

Agree on a plan that meets the needs of all parties and the organization. Agree on followup steps, as necessary, to make the plan work. Agree on what each person will do to solve the conflict. Set clear goals and know how you will measure success.

Do what you agreed to do. With more experience in conflict resolution, you will grow more comfortable with conflict resolution. That's a positive outcome for the workplace. It will foster idea generation, help people get along, minimize negative behaviors and promote the success of all in placing their attention where it belongs - on the customer.

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Conflict Resolution - Part 1 -

2005-11-18T13:08:00.000-08:00

From About.com:

Why People Avoid Conflict Resolution
Practicing personal courage is necessary if you want to really resolve conflicts at work. It is much easier and much safer to ignore the necessary conflict and play ostrich. Unfortunately, unresolved conflict tends to escalate. It never really disappears because it simmers just below the surface. Think of water that is coming to a boil. It bubbles up in the pot sporadically and then finally reaches the boiling temperature. At that point, a full blown rolling, constant boiling is seen on the surface of the water.
Conflict behaves similarly. The water may seem calm, but every once in awhile, usually at the worst possible times, the conflict bubbles up to the surface once again. Unresolved conflict does not go away; unresolved conflict can turn into a full boil at any time.
Many people are afraid of conflict resolution. They feel threatened by conflict resolution because they may not get what they want if the other party gets what they want. Even in the best circumstances, conflict resolution is uncomfortable because people are usually unskilled at conflict resolution. Finally, people can get hurt in a conflict and, at work, they are still expected to work together effectively every day.
The Benefits of Conflict Resolution
This century's workplace makes conflict resolution more important, but also, more difficult. Team or work cell environments create more conflict as people with different opinions must choose to work together, often in close quarters.
Empowering work environments, in which the traditional reliance on a manager to solve conflicts and make decisions, bring coworkers into more frequent conflict, as they must work issues out for themselves. Conflict resolution also:
Causes people to listen to and consider different ideas.
Enables people to increase their alternatives and potential paths.
Results in increased participation and more ownership of and commitment to
the decisions and goals of the group or person.
The goal of the people or the team is not to eliminate conflict but to learn how to manage conflict constructively.

"If the pink slip doesn't fit,
get redressed!"
Click to see my wardrobe of remedies.

Dignity vs. Harassment

2005-11-08T12:29:00.000-08:00

When a jury awards $3 million dollars in compensatory damages (only) to a sexual harassment victim against Sav-On (American Drug Stores Inc., 2005 WL 2002376, Aug. 2, 2005), what is the jury trying to communicate by its verdict?

The case involved some alleged stalking of a store manager by her manager, some groping, some lewd comments, and threats against her if she participated in other investigations against him. The events occurred over about 3 years, (1994-1997) and occurred almost daily.

The harassed woman complained "informally" to management, consistently with company policy. Management told her to "work things out" on her own, and if she made a "formal" complaint, she "could kiss her career goodbye". After some bad performance evaluations delivered after unusual close scrutiny of her work, she went on medical leave in 2000.

The $3 million dollar award was for lost wages and emotional injury only. There was no award of "punitive damages". By any measure, a "compensatory" award of $3 million is extraordinary. Why did it happen?

Trials are events that operate at two levels: technical and dramatic. Compare a film: the technical elements are operating in the background. They hardly matter to the viewer. They support the drama. The viewer is interested in the story. The jury is watching a drama unfold in a courtroom, even while the technical matters of objections, evidence, and jury instructions operate in the background. Juries don't care very much about the background. They care about the moral issues of who acted rightly and wrongly. Their award of damages, small or great, is their vote on the clarity and force of the moral arguments presented.

We can now answer the question: What was the Jury saying by its $3 million "compensatory" verdict? I believe the verdict told Sav-On that employees can rightfully expect their employer to provide a workplace reasonably free from harassment. It told Sav-On that it did not only fail in that basic duty, it went further. In my opinion, the Sav-On verdict told the company that the jury believed Sav-On management indirectly participated in the harassment. By discouraging reporting of the harassment, and by being lax in following its own policy, Sav-On communicated that harassment was acceptable. As a result, a woman suffered for years because of fear of losing her job and her career. The Jury told Sav-On implicitly that it would pay for this suffering, and, in my opinion, even without an award of "punitive damages", it awarded an amount that told Sav-On to change its practices so that other women would not suffer like this one.

"If the pink slip doesn't fit,
get redressed!"
Click to see my wardrobe of remedies.

Genetic testing of employees

2005-10-31T14:12:00.000-08:00

IBM announced this month that it will never use genetic data in its decisions to hire applicants or determine employee eligibility for its health care or benefits plans.

Approximately 800 genetic tests are currently available, including those to test for certain neurodegenerative diseases and to determine the risk of developing certain cancers. However, the number of genetic tests will probably expand tremendously in the next decades. Such tests will not only show whether someone is at risk of developing certain diseases but will also predict how well that individual will respond to certain prescription drugs.

While many employers are utilizing the genetic information to offer programs for employees to help them control or prevent diseases, there is always the possibility that employers can use such information to discriminate against "unhealthy" employees. Furthermore, even though employers require consent of their employees before obtaining full rights to the testing of their genetic information, employees generally have little or no bargaining power before surrendering their rights.

IBM's chief privacy officer, Harriet Pearson, has stated that genetic information "has nothing to do with your employment, how good your contributions are, how good of a team member you are, so making a policy statement in this case is the right thing to do."

Although IBM's move may appear to be purely ethical, it seems more likely to be a business tactic. Since IBM is a huge player in medical-information technology in offering a variety of computing technologies for medical and pharmaceutical research, it probably realizes that employees may resist in getting genetically tested if they believe that the medical information will be used against them, thus inhibiting the growth of a key market.

"If the pink slip doesn't fit,
get redressed!"
Click to see my wardrobe of remedies.