Settlement for lost wages taxable

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

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

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

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

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

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'

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 -

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 -

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.

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Dignity vs. Harassment

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.

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Genetic testing of employees

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.

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Covert sex abuse of farmworkers

Sexual harassment and abuse against female farmworkers in the fields apparently often goes unnoticed. Attorneys for the EEOC claim that this occurs primarily because the majority of farmworkers have minimal knowledge of their legal rights, know little English, and are undocumented.

All of the San Francisco EEOC's recent cases involving farmworker sexual harassment have led to settlements.

In the case of Olivia Tamayo, inability of the parties to settle led to a trial in which the jury took less than six hours to award her $1 million in damages. This was despite the fact that Tamayo took six years to accuse her supervisor of rape.

A federal court jury in January decided that although Tamayo attempted to complain about the rapes, the defendant Harris Farms did not act promptly to stop the harassment once it was reported and retaliated against Tamayo, causing her to quit. Tamayo claimed that the defendant did not believe her and did nothing to protect her.

Tamayo said she was raped for the first time by her supervisor in 1993 in one of Harris Farms' almond groves. She said she did not know what to do or where to go, and could not tell her husband. Tamayo said that her supervisor brandished a gun and a knife while working.

According to Tamayo, her supervisor raped her two other times, once in his truck and another time at home while her husband worked and her children slept. She kept quiet until one day when he grabbed her by her hair and punched her face as she stood in the middle of a field.

Harris Farm still believes, based on the company's own internal investigation, that Tamayo's situation involved an affair that had gone bad and not rape, and thus plans to appeal the verdict.

Since the verdict, the defendant has been warned by the judge not to retaliate against its workers. Harris Farms has installed a complaint hot line for employees and trained supervisors to recognize harassment.

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California Court of Appeals has expanded Workers' Comp

Now, illegal immigrants injured on the job are entitled to workers' compensation benefits despite their legal status.

The 2nd District Court of Appeal ruled in a case against Farmer Bros. Co., which had attempted to deny workers' comp benefits to an employee who was in the country illegally.

The plaintiff, Rafael Ruiz, 35, claimed he injured his shoulders, back, neck and hands by repeatedly lifting heavy sacks of coffee beans.

Although Farmers Bros. argued that federal immigration laws superseded the state's workers' compensation system, which provides medical care and disability benefits to injured employees, the court disagreed.

Held the Court unanimously: "California law has expressly declared immigration status irrelevant to the issue of liability to pay compensation to an injured worker."

Andy Ramirez, a spokesman for Friends of the Border Patrol, a Covina-based group that sends members to patrol the U.S. border with Mexico, stated: "We can't reward people for breaking the law."

The state Department of Finance estimates that 2.6 million illegal immigrants live in California.

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Women and Work: Having it All

What is a “high achieving” person? As a member of the legal profession for nearly 30 years, I have witnessed a dramatic shift in the opportunities of women to enter the profession. Perhaps 5 or 10% of law school classes were female in the mid-seventies when I attended. Now the ratio is 50:50. The numbers of judges, including the two occupying the Supreme Court, has increased as well. Women occupy 43% of the associate and senior positions in law firms, and 17% per of the partner positions. While a disparity suggesting gender discrimination exists, the numbers reflect real progress in the equality of opportunity.

During this same time, families have disintegrated, with divorce in CA exceeding 50% of all marriages, and abortions occurring in 1 of 4 pregnancies. The economy, and the drive to “have more” of the “American Dream”, have produced stressed out couples, both working to pay the bills, while children are shuttled to day care and act as “latch key” kids until exhausted parents get home.

Men are asked to be more nurturing and less providing and protective, in the interest of gender equality. Women are asked to work long, grueling hours while their infant children are cared for by nannies or low paid child care center employees. Guilt and separation anxiety become the order of the day.

An article on the Front Page of the New York Times this month states some research findings that anger “high achieving” women of the 70s who have paid the price for their status in the business world today. This article, entitled: “Many Women at Elite Colleges Set Career Path to Motherhood” by Louise Story, collected the responses of young women at Ivy League colleges who stated they were unprepared to sacrifice motherhood and child nurturing in order to pursue high-pressure careers. They concluded that “having it all” was just not realistic or good for children and families.

A legal newspaper I read, the Los Angeles Daily Journal, covered the responses of “40 and 50 something” female attorneys to the N.Y. Times article by Story. These “women’s liberation” women did what they were driven to do, and did it at whatever cost it required: they were determined to be both “supermoms” and “super lawyers”. Now, a younger generation questions their sacrifice. They are naturally defensive. These women point out that large firms hiring top notch women lawyers have created liberal maternity leave policies and flexible hours, permitting the development of both a family and a career. These older women fear these new attitudes will undermine the hard won successes of women in the last decades.

So, who is correct? Is the issue as simplistic as the choice between the docile and demur mother & “little housewife” of the 40s and 50s or the supercharged executive “mom” of the 21st Century? I find it ironic that the persons most arguing for individual freedom of choice become most reactive when increasing numbers of very bright young women decide to exercise that choice differently than an earlier generation. These older women seem to be in denial of the social and relational carnage of the past 3 decades.

The politicians routinely resurrect their calls for “family values” each election cycle, yet where are the family friendly policies that are needed to support the family? Where are the funds and social programs that give mothers and fathers greater flexibility to adjust their hours for their children, and where are the corporate policies that provide “on site” day care so that parents may be in touch with their children throughout the day. Where are the liberal maternity and paternity leave policies that permit parents to be with their newborns during the critical first year of bonding and development? Where are the financial incentives and training needed to bring accessible, top quality child care to desperate parents? Where are the Churches that need to speak out for the protection and integrity of family relationships? Where is the “women’s movement” in seeking the right of mothers to stay with their newborn children during the time needed for mother-child bonding and nurturing?

Until a “high achieving” person is defined in our culture to include the quality of parenting and nurturing, we will not be the “high achieving” nation we are called to be. Until then, each couple will have to “travel to the beat of their own drummer’ to paraphrase Thoreau. A generation of young women appears to be defining differently and for themselves just what is “the good life”.

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Should a physician be able to refuse a medical procedure based on her religious beliefs?

An unmarried lesbian patient wants to be artificially inseminated and the doctor refuses to perform the procedure based on her religious beliefs.

It's the battle between free exercise of religion and unlawful discrimination.

Currently being appealed and possibly worthy of Supreme Court hearing, the case of North Coast Women's Care Medical Group v. Benitez raises an important constitutional question of first impression.

A pretrial ruling was made that doctors could not claim religious liberty in defense of unlawful discrimination.

In appealing, defense counsel argues that the trial court did not respect physicians' rights to the free exercise of religion under both federal and state constitutions.

Defendants claim that doctors who refuse to treat a patient based on their religious beliefs can satisfy their nondiscrimination obligations by referring the patient to another physician and paying any additional costs to the patient. In Benitez' case, defendant North Coast did offer to pay for her procedure when the second clinic she went to did not cover her treatment. Benitez refused to accept North Coast's payment.

Plaintiff's counsel argues that physicians cannot refuse to perform a medical procedure (in this case artificial insemination) on a protected group of people (homosexuals) due to their religious convictions. They claim that endorsing such religious beliefs would allow those beliefs to be superior to the law of the land.

Furthermore, since lesbians are already alienated from the medical system due to hesitancy in revealing their sexual orientation to their doctors, allowing a physician to refuse a procedure would further shut down communication with doctors. Plaintiffs also claim that a ruling in favor of the defendent would hinder the compelling interest that California has in maintaining the health and well being of all its residents.


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Sexist supervisor succumbs to sensitive Sylvia's suit

Sylvia Dominguez-Curry was rejected for a supervisory position that was eventually filled by a male. The man who was hired was interviewed by her supervisor along with another higher-level manager. The reason given for hiring the male was that he was more qualified because of his education and work experience.

Dominguez-Curry felt that she had not been hired because she was a women and she had evidence to prove it.

Dominguez-Curry's male supervisor would constantly make demeaning comments to women in her division, such as: "he wished he could get men to do [their] jobs," "women have no business in construction," and "women should only be in subservient positions". He made comments that female employees were likely to get pregnant, that he did not like working with pregnant women, and that women "had no business working if they had little children to care of at home." The supervisor also told sexually explicit jokes in the workplace.

What the Court decided: The supervisor's demeaning comments about women in the workplace, his hostility toward pregnant employees, his expressed preference for male employees, and his sexually explicit jokes possibly created a hostile work environment (the facts would be left for a jury to examine). It was also possible that the supervisor's discriminating behavior played a role in his hiring process due to his comment about wanting to hire a man. It did not matter whether the supervisor was not the sole decisionmaker.

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New California Bill affects pay for software professionals

On September 8, 2005, Governor Schwarzenegger signed Assembly Bill No. 1093 into law. This Bill expands the hourly rate exemption requirement for computer software employees. The Bill takes effect on January 1, 2006.

Usually, under both federal and state law, an employee must be paid on a salary basis to qualify for the executive, administrative, and professional exemptions (Exemption means that an employee is unable or exempt from receiving overtime pay).

However, California Labor Code Section 515.5 requires that, in order to be exempt from overtime, an employee must not be paid less, on an hourly basis, than a specified rate (currently $45.84 per hour) for all hours worked.

Employers have often disregarded this section and paid their employees on a salary basis, believing that salary pay is acceptable as long as the salary equals the specified hourly rate based on only a 40-hour workweek. This is a wrong interpretation of the law, and has subjected some employers to wage and hour class action lawsuits.

AB 1093 allows an employer to pay a computer professional on a salary basis as long as the salary is equal to or greater than what the employee would be paid on an hourly basis, at the specified hourly rate in Section 515.5, for all hours worked.

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Some things just aren't funny

For Susan Medeiros, not only did her co-worker think her joke wasn't funny; the joke resulted in getting her fired.

A co-worker working at Medeiros' restaurant was unhappy with the work schedule and complained, resulting in the change of many other workers' schedules.

Medeiros, a senior hostess, approached the co-worker from behind, placed her hands around her neck and shook her lightly while laughingly saying, "It's all because of you."

The co-worker reported the incident to a manager. Medeiros was fired.

When Medeiros filed for unemployment benefits, she was turned down. Medeiros sued.

Held the Hawaii Supreme Court: Medeiros' employer had a zero-tolerance policy against violence in the workplace that Medeiros was aware of, and so she should not have even joked about assaulting a worker. Consequently, her unemployment benefits were rightfully denied.

Case: Medeiros vs. Hawai'i Department of Labor and Industrial Relations, September 1, 2005

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"You've got to stop your evil ways, baby"

Carlos Santana's former personal assistant Bruce Kuhlman has filed a lawsuit against Santana and his wife Deborah for several claims including religious discrimination.

Kuhlman alleges religious discrimination based on his belief that the Santanas fired him for not being spiritual enough.

According to Kuhlman, Deborah Santana ordered him to meet with a "Dr. Dan" to improve "his consciousness or awareness level, which would bring him closer to God and make him a better worker."

Kuhlman also claims that Dr. Dan gave him literature on "neuro-emotional" and "neuro-calibration" techniques, the latter of which was apparently intended "to help you become as enlightened as God desires you to become."

The Santanas issued a statement denying all allegations and attributes Kuhlman's termination to his inadequate performance after he was given support and every opportunity to succeed.

The Santanas have long been spiritual seekers. In 2000 and just before he won 8 grammies, Carlos Santana credited an angel named Metatron for his career comeback.

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Shifting of sexual harassment liability in 9th Circuit

The victims: Three female employees of the National Education Association’s Alaska affiliate, all of whom alleged that they had been subjected to a hostile working environment.

Precedent/"Old law": Direct evidence is required to show that harassing conduct towards these female employees was “because of sex” (i.e., harassment would not have occurred if they were male).

What happened: The women were subject to “frequent, profane, and often public” tirades by their supervisor Harvey, who frequently yelled at them for no reason and occasionally made intimidating physical gestures.

While Harvey did publicly criticize male workers within the office, he was much less aggressive about it than he was with the women. He also showed a greater willingness to resolve matters more amicably with the men. Unlike the male employees, the female employees testified that they cried, felt panicked and threatened, avoided contact with Harvey, called the police, and ultimately resigned their employment because of the alleged conduct.

Other witnesses, including male employees, confirmed those accounts.

What the court held: Overturning the district court’s ruling in favor of NEA-Alaska which held that the alleged harassment was not “because...of sex” within the meaning of Title VII of the Civil Rights Act of 1964, the Ninth Circuit held that there was sufficient evidence that Harvey treated the men and women in the office differently by creating “general fear” in the women.

The Court held that the motive in which the abusive supervisor took advantange of a female workplace because he could bully the women easier than the men was no "less because of sex than a motive involving sexual frustration, desire, or simply a motive to exclude or expel women from the workplace.” The Court mentioned that in such situations, it did not necessarily matter that some men were also harassed.

Case: Equal Employment Opportunity Commission v. National Education Association, Alaska, 04-35029.

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Smoking 2 joints for your back pain may get you fired

Gary Ross had a doctor's prescription to marijuana for his chronic back pain, pursuant to the Marijuana Compassionate Use Act of 1996.

In 2001, Ragingwire Telecommunications offered Ross a job as a lead systems administrator as long as he passed a drug test.

Ross failed the drug test when it showed positive results for THC, the active chemical in marijuana. Subsequently, Ragingwire terminated Ross' employment based on the results of the drug test.

Ross sued Ragingwire for disability discrimination, on the grounds that marijuana use is a reasonable accommodation for back pain, as well as for wrongful termination in violation of public policy and breach of implied contract that required terminated based on good cause.

On September 7, 2005, the Court of Appeals held that an employer need not accommodate a disability by allowing an employee to use a drug that is illegal under federal if not state law. It also held that there was good cause to terminate Ross' employment.

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Employers may no longer be allowed to buy their violations of the FMLA through severance packages

Employers commonly include waivers of Family and Medical Leave Act (FMLA) claims in their employees' general release and severance agreements. The agreements usually do not refer to the FMLA by name, but instead include catch-all provisions releasing claims arising under any other federal, state, or local law.

In May 2003, Barbara Taylor brought a lawsuit against her employer who argued that Taylor had waived her FMLA claims when she signed a general release and severance agreement in exchange for a $12,000 severance package.

The 4th Circuit held that the plain language of the FMLA prohibited the waiver or release of all FMLA claims, whether prospective or retrospective.

The Court made an exception that a waiver of FMLA claims could be made under DOL or court supervision.

Employers may still include specific statutes in the release provisions of a severance agreement but, in doing so, risk excluding other important statutes from its coverage.

Other Circuits (not including the 5th, which has taken the opposite position) and the Supreme Court have yet to decide whether they will adopt the reasoning of Taylor.


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Labor violations in unregulated industries

Nannies, housecleaners, and caretakers all work in a largely unregulated industry - no contracts, timecards or other detailed records.

On its face, the industry seems mutual for both employees and employers.

The employees are generally flexible and willing to work cheaply.

The employers are ready to hire these employees.

Both reap the benefit of not paying tax.

However, workers have few protections and labor violations are very common. Workers are hesitant to come out against their employers because of their financial status and their fear of getting deported.

More and more workers (most of whom are women) are slowly confronting employers, filing wage claims, forming collectives, and pushing for legislation to guarantee more rights.

Rick Oltman, Western field director for the Federation of American Immigration Reform, says that the fact that many undocumented workers are willing to bring their cases to the attention of state officials "shows that they have no fear of our government enforcing our immigration laws."

Under the law, even undocumented workers are entitled to earn minimum wage ($6.75 an hour) and overtime pay. They also have the right to receive rest and meal breaks.

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Plain Janes need not apply

A Harrah bartender named Darlene Jesperson was fired from her job in 2000 for refusing to comply with the company's “Beverage Department Image Transformation” program which required all female beverage servers to (1) wear stockings and nail polish, (2) wear their hair “teased, curled, or styled", (3) wear makeup, including foundation/concealer and/or face powder, blush, mascara, and lip color, but did not provide male beverage servers with any such stringent grooming requirements.

Jespersen filed suit against Harrah's alleging that the makeup requirement for female beverage servers constituted disparate treatment sex discrimination.

In December 2004, Darlene Jespersen's case was dismissed by a three-judge panel of the U.S. 9th Circuit Court of Appeals, which affirmed the district court ruling and held that Harrah's appearance standards did not constitute sex discrimination as the appearance standards imposed equal burdens on both sexes.

Aside from cutting their fingernails and keeping their hair short, the only "stringent" requirement for male beverage servers was that they be prohibited from wearing makeup.

The current law is that employers cannot impose a greater burden on one sex than the other when it comes to appearance standards.

Jespersen contended that the makeup requirement imposes “innumerable” tangible burdens on women that men do not share because cosmetics can cost hundreds of dollars per year and putting on makeup requires a significant investment in time.

The court held that there was no evidence to support the contention and refused to allow the case to go to a jury under a theory that a jury could apply simple common sense without specific supporting evidence.

In May 2005, the court reversed the ruling and ordered the case to be reheard by an 11-judge panel.

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Hybrid category of gender discrimination and harassment created by the 9th Circuit

From Law.com:

You don't have to be a groper, lecher or explicit misogynist to get sued for sex-based harassment, a three-judge panel of the 9th U.S. Circuit Court of Appeals ruled Friday.

The opinion, in a case originating at an Alaska teachers union, said that Thomas Harvey, a manager accused of "shouting, 'screaming,' foul language, invading employees' personal space ... and [making] threatening gestures" may be sued for gender-based discrimination under Title VII of the Civil Rights Act of 1964, even though his acts were not overtly motivated by the victims' gender.

"We hold that offensive conduct that is not facially sex-specific nonetheless may violate Title VII if there is sufficient circumstantial evidence of qualitative and quantitative differences in the harassment suffered by female and male employees," wrote Senior Judge Alfred Goodwin in a unanimous decision.

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Katrina Takes A Swipe at Lady Justice

The following is a report from:
Professor Michelle Ghetti
Southern University Law Center
Baton Rouge, LA 70813

5,000 - 6,000 lawyers (1/3 of the lawyers in Louisiana) have lost their offices, their libraries, their computers with all information thereon, their client files - possibly their clients, as one attorney who e-mailed me noted. As I mentioned before, they are scattered from Florida to Arizona and have nothing to return to. Their children's schools are gone and, optimistically, the school systems in 8 parishes/counties won't be re-opened until after December. They must re-locate their lives.

Our state supreme court is under some water - with all appellate files and evidence folders/boxes along with it. The 5th Circuit Court of Appeals building is under some water - with the same effect. Right now there may only be 3-4 feet of standing water but, if you think about it, most files are kept in the basements or lower floors of courthouses. What effect will that have on the lives of citizens and lawyers throughout this state and this area of the country? And on the law?

The city and district courts in as many as 8 parishes/counties are under water, as well as 3 of our circuit courts - with evidence/files at each of them ruined. The law enforcement offices in those areas are under water - again, with evidence ruined. 6,000 prisoners in 2 prisons and one juvenile facility are having to be securely relocated. We already have over-crowding at most Louisiana prisons and juvenile facilities. What effect will this have? And what happens when the evidence in their cases has been destroyed? Will the guilty be released upon the communities? Will the innocent not be able to prove their innocence?

Our state bar offices are under water. Our state disciplinary offices are under water - again with evidence ruined. Our state disciplinary offices are located on Veteran's Blvd. in Metairie. Those of you who have been watching the news, they continue to show Veteran's Blvd. It's the shot with the destroyed Target store and shopping center under water and that looks like a long canal. Our Committee on Bar Admissions is located there and would have been housing the bar exams which have been turned in from the recent July bar exam (this is one time I'll pray the examiners were late in turning them in - we were set to meet in 2 weeks to go over the results). Will all of those new graduates have to retake the bar exam?

Two of the 4 law schools in Louisiana are located in New Orleans (Loyola and Tulane - the 2 private ones that students have already paid about $8,000+ for this semester to attend). Another 1,000+ lawyers-to-be whose lives have been detoured. I've contacted professors at both schools but they can't reach anyone at those schools and don't know the amount of damage they've taken. Certainly, at least, this semester is over. I'm trying to reach the Chancellor's at Southern and LSU here in Baton Rouge to see if there's anything we can do to take in the students and/or the professors. I think I mentioned before, students from out of state have been stranded at at least 2 of the other universities in New Orleans - they're moving up floor after floor as the water rises. Our local news station received a call from some medical students at Tulane Medical Center who were now on the 5th floor of the dormitories as the water had risen.&nbs p; One of them had had a heart attack and they had no medical supplies and couldn't reach anyone - 911 was busy, local law enforcement couldn't be reached, they were going through the phone book and reached a news station 90 miles away!! It took the station almost 45 minutes to finally find someone with FEMA to try to get in to them!!

And, then, there are the clients whose files are lost, whose cases are stymied. Their lives, too, are derailed. Of course, the vast majority live in the area and that's the least of their worries. But, the New Orleans firms also have a large national and international client base. For example, I received an e-mail from one attorney friend who I work with on some crucial domestic violence (spousal and child) cases around the nation - those clients could be seriously impacted by the loss, even temporarily, of their attorney - and he can't get to them and is having difficulty contacting the many courts around the nation where his cases are pending. Large corporate clients may have their files blowing in the wind where the high rise buildings had windows blown out.

I woke up this morning to the picture of Veteran's Blvd which made me think of my students who just took the bar. My thoughts wandered from there to the effect on the Disciplinary Offices. Then my thoughts continued on. I'm sure I'm still missing a big part of the future picture. It's just devastating. Can you imagine something of this dimension in your state?


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Chaplains to the rescue

Employees are generally urged to deal with workplace stress “on their own”, but how many of us have to deal with even more stress at home because of our spouse, kids, in-laws, household duties, etc.? Don’t many of us attempt to be superhuman both in the workplace and with our family without healthily confiding our stresses and problems to a third person? Or what about those of us who are facing financial, emotional, or other types of crises and need someone to turn to? Wouldn’t it be nice if there were a source of guidance at work that would be both accessible and eager to help?

Some corporations have hired chaplains to help guide employees through their various problems. Seeking a chaplain's help is completely voluntary. They cater to employees of any or no religion. Employees can now turn to these chaplains (who employees seem to prefer over HR) instead of quitting, suing the company, or creating problems with other employees, thus benefiting the corporation in the long run.

You can read more about corporate chaplains and their success stories here.

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Blogged and Frogged:

I wish to be the first to present a new term to the lexicon of blogging: "frogged". Frogged is the equivalent of being fired because of online activities. Specifically, it includes a "frogging" for "blogging". The term has support from incidents like those of employee Mark Jen at Google. The balance of this post is taken from CNet.com News at CNet:

On Jan. 28, 2005, I was terminated from Google," Jen wrote on his blog, Ninetyninezeros. "Either directly or indirectly, my blog was the reason. This came as a great shock to me because two days ago we had looked at my blog and removed all inappropriate content...If I was told to shut down this blog, I would have."

Jen's departure came just 11 days after he joined Google as part of a wave of new hires and began recording his impressions of his new employer, including criticisms, in his blog.

Jen is just the latest employee to lose his job after a clash with management over public Web postings. Other examples include a Delta Air Lines flight attendant who was fired after posting photos of herself in uniform on her blog; a Microsoft contractor who took some pictures of Apple G5 computers being unloaded onto the software company's campus and posted them to his blog; and a Friendster employee who was let go over her Troutgirl blog.

The employee blog issue is doubly sensitive for Google, which became a prominent booster of blogging through its acquisition of Web logging pioneer Pyra Labs in February 2003. The company also has made a point of putting ethics before profits in its business operations, suggesting it holds itself to a higher standard of care for customers and employees.

Despite expressing shock over the dismissal, Jen wrote that he could "see where Google is coming from."

But Jen said that he disagreed with Google's decision, arguing that it is out of step with a trend that will likely grow only more powerful over time.

"I think blogging is the next big thing on the Internet...Corporations should embrace this technology just like the ones before it," he wrote. "Companies that are confident in their offerings should let employees spread the word. In today's age of information overload, blogging is quickly emerging as the fastest and most cost-effective method of marketing."

Google declined to comment, other than to reiterate its earlier statement that Jen is no longer a Google employee.

Blog at your own risk, legal expert says
Christopher Cobey, senior counsel at Littler Mendelson in San Jose, Calif., said that incidents involving blogging aren't really novel. Rather, he said, they simply extend legal concepts and issues that have been on the table since computers and the Internet first entered the workplace.

"This is an outgrowth of the continuing evolution of technology, from Internet access and use of computers at work, to similar problems we've seen with Web sites and e-mail," he said. "What it really comes down to is how people are using them, what they're using them for and how it's affecting their job."

Previous Next Employers have considerable leeway to discipline employees over any public expression touching on the company's business or reputation, Cobey said. Workers in states governed by at-will employment laws, including California, are most at risk. But even workers covered by collective-bargaining agreements could run afoul of an employer's right to protect the company's public image, if they criticize the company or disclose confidential information.

Anonymity offers little protection if a blogger's identity is uncovered in a state with at-will employment, Cobey said. Nor are bloggers protected simply by conducting their activities from home on their own time, rather than at work during office hours, he said.

"Employers in at-will states have very wide latitude" to fire workers, he said. "Is it always fair or nice? No. Is it lawful? Yes."




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Denial of IVF Treatments Not Disability Discrimination

Employers buy health insurance policies for their employees every day. One employer, the Hayward Unified School District, was sued by one of its employees because it offered a policy that excluded a treatment from coverage. The treatment was for infertility. The employee’s wife sought I.V.F.(in vitro fertilization) treatments through the policy, and a number of these kinds of treatments were covered and paid for. One especially expensive treatment was however excluded. This treatment was used by the employee’s wife, and she conceived and delivered. Her husband then sued for disability discrimination.

• What: The Court ruled for the Employer
• Why: The policy didn’t discriminate:
• The policy excluded all persons equally under the plan
• The exclusion was “treatment” based, not “disability” based.

The confusion: The exclusion had a greater affect on persons with a disability
The clarification: All health policies have this incidental affect.
The finding: An exclusion of a treatment in a policy universally applied is not discriminatory.
The Case: Knight v. Hayward Unified School District (August 2005) (1st App. Dist.)



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The coke must be from my shampoo

Who: Eight African American Boston cops

The claim: The Boston PD's current testing of hair strands to detect drug use violates the plaintiffs' civil rights and constitutes racial discrimination because the hair texture and hair care products used by black people tend to produce false positive results of cocaine in the system. One of the plaintiffs took another independent test which had negative results, which the PD rejected.

Says Psychemedics Corp. (interpretor of the test) Vice President and General Counsel William Thistle: "People do not spontaneously create cocaine in their urine, blood or hair," He added that the assays have been verified by tens of thousands of test results that show no bias based on race.

None of the plaintiffs signed the BPD's rehabilitation agreement and were thereupon discharged. The plaintiffs chose not to sign claiming that the agreement required admission of illegal drug use, drug treatment, placement in an administrative position and submission to follow-up random drug testing for three years after the positive results.

What the plaintiffs are asking for: 1) Reinstatement with back pay 2) front pay 3) all benefits and seniority ranking 4) compensatory and punitive damages 5) a declaration that the BPD's drug-testing policies violate the Massachusetts and U.S. constitutions and a permanent injunction barring the use of the hair test and any other procedures that are racially biased.

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

OPEN MIKE -- ANY COMMENTS

Let the blogsophere know your dispair, your passion, or the probing of your mind. Use the microphone (pardon me, the comment button) below.


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

Some tips on employee blogging

Almost everyone has or knows someone that has a blog these days. With the increasing number of blogs and the discrepancy in expectation of privacy of an employee’s blog between the employee and the employer, more and more employees are being terminated based on the content in their weblogs. So if you are about to put suggestive photographs on your blog or are considering blogging about work issues, you might want to know your rights:

~ Examine your employment agreement, union contract, employee handbook, etc which may address electronic privacy and computer use issues.

~ Restrict access to your blog and/or post anonymously! If you restrict access to your blog and your employer attempts to access it, they will probably be in violation of the law. You may want to think twice about blogging using your work computer or network (even after hours) because doing so will provide your employer with a much stronger claim to legally read your blog even if you restrict access to it.

~ Government employees are favored by their right to the First Amendment freedom of speech and are thus allowed more blogging rights especially if the content is of public concern and does not disrupt the workplace.

~ Some states prevent employers from interfering with legal activity outside the workplace (blogging has not been specifically included, but may provide a good argument).

~ Your employer typically cannot fire you for blogging about workplace issues that relate to terms and conditions of employment (wages, hours, etc) or unionization. Be sure to make a formal written complaint before you blog about the issue to help you prove that your employer is retaliating against you. Of course, there are exceptions to the retaliation rule: 1) You cannot blog about false or defamatory statements, statements that disclose an employer's trade secrets, and similarly unlawful statements 2) Independent contractors, supervisors, public employees (in some states), and other categories of employees are not included.

Check out the following links if you would like more information on blogging:

Blogger's FAQ
How to Blog Safely

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

The Workplace Religious Freedom Act

Currently, employers must "reasonably accommodate" an employee’s request for religious accommodation, unless doing so would cause “undue hardship” on the company. Even a minimal cost or difficulty can be considered "undue hardship." Therefore, many employers make little effort to accommodate religious workers.

The proposed Workplace Religious Freedom Act would raise the “undue hardship” standard and require employers to accommodate employees’ religious requests unless doing so would involve "significant difficulty or expense." The Act has been backed by Right and Left political groups and has been said to prevent employees from being forced "to choose between dedication to the principles of their faith and losing their job because their employers refuse to accommodate certain needs."

Sounds great, but what about those employees who aren’t religious or who are attacked by religious groups? Would these employees be at a great disadvantage? For example, take into consideration the recent firing of a born-again Christian man named Matt Barber by Allstate after Barber wrote an essay against homosexuals, apparently using his work computer to write the essay. Unfortunately for Barber, he did not quote any Biblical scriptures in his essay, thus probably weakening his religious argument. However, even if he had done so, under the current law Allstate may rightfully claim that Barber’s minimal use of his work computer and time at work was an undue hardship on the company. Under the WRFA, Barber could probably be allowed to regularly write anti-homosexual articles during work as long as it did not incur "significant difficulty or expense” on the company. Barber could also opt under the Act to not work with a gay or lesbian employee because of his religious beliefs.

So would the WRFA unjustly favor religious employees? Would the Act be unfair to atheists or agnostics who would be denied opportunities that only religious employees may take advantage of, such as being able to use their work time for religious purposes or having their position reassigned due to their religious beliefs?

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

Dancing to the Little Guy Blues.

Have you ever lost your keys, misplaced your glasses, forgotten your billfold or purse, or left home without the grocery list? These errors I’m convinced are built into our human DNA.

Well, what if you’re a big Corporation? Have you ever misplaced that smoking gun memo that will cost you millions if it falls into the hands of the Plaintiff’s attorney? Have you ever accidentally cleaned up your electronic storage system so that numerous documents that would hurt your defense of a case unfortunately are lost forever? Or have you ever accidentally turned over a secret document that reflects your conversations with your attorneys during which they and you bemoan that you’ve been caught red handed breaking civil and criminal statutes? These errors I’m convinced are built into our corporate DNA.

Now, before your eyes glaze over, I want to quickly inform you that an effort of good intentions is underway and nearly completed, to create rules in the federal courts that address this corporate DNA problem. The rules have to do with one side (usually the little guy) getting numerous, voluminous, gargantuan amounts of electronically stored documents from the other guy (usually the “big guy”). Why should you care? You don’t practice law (or maybe you do, but don’t care anyway). Well, in an age where the dirt is stored electronically, using an archaic system of digging based on 20th Century discovery rules may not dig up much at all, and that may mean a lot to you. If you’re driving a vehicle, or taking a medication, or incurring a bank charge, or buying a baby crib, or virtually anything, you may find you (and your consumer rights lawyer) cannot make the case for a whole class of people without getting detailed, voluminous records related to the product or service in question.

The bottom line: the proposed federal E-Discovery Rules define the limits of how much searching, retrieving, and storing a corporation has to do to satisfy a “discovery” request. Basically, the Rules are heavily influenced by a Defense lobby that would allow Corporations to “take back” a privileged document accidentally included in a turn over of a large amount of electronic data. The rules also state the search effort is limited to electronic data that is “reasonably accessible” and then provide a loose definition of that phrase. And, of most popularity with the “big guy” is that there is a “safe harbor” from sanctions if data is “accidentally” destroyed. Some “big guys” are more accident prone than others, I suspect.

OK, I know you're on the edge of your seat with this titillating story-line. Maybe the story is really a bit philosophical. Technology has created new dance steps in the business of litigation, but the “big feet” keep “stepping on the toes” of the “little guy”. I know I sound a bit cynical, but maybe I’ve just got the “little guy” blues. The Golden Rule of the law, some cynics contend, is that the one with the gold rules.

"No can do, Mamdouh!"

If your name is Lakshminarayan Subrahmaniam but your boss insists over your repeated objections on calling you “Luke”, tell him in the name of El-Hakem that you no longer have to put up with it!

The case of El-Hakem v. BJY Inc. et al., Nos. 03-35514, 03-35544 and 03-35063, 2005 WL 1692470 (9th Cir. July 21, 2005) involved a CEO who continuously refused to call an Arab employee by his given name, Mamdouh El-Hakem. Instead, the CEO chose to lovingly call him by the more Westernized name “Manny”. The CEO, Gregg Young, claimed that he called El-Hakem "Manny" to better his chances of advancement and to make him "more acceptable" to the company’s clientele. Even though El-Hakem objected numerous times, Young left him only with the alternative of calling El-Hakem “Hank”. The 9th circuit ordered $30,000 in damages to be paid both by the CEO and by the company, holding that the company was liable for race discrimination.

The Court held that because "names are often a proxy for race and ethnicity," Young’s repeated intentional failure to address El-Hakem by his given name created a hostile environment that would have been offensive to a reasonable Arab. The Court found that the frequency and severity of the Young’s conduct, which were consistent and lasted for almost a year, was enough to support the verdict in favor of the plaintiff. Because Young was acting in the course and scope of his employment whenever he called El-Hakem "Manny", the Court held that the company could be held vicariously liable for Young's actions.

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