Denial is not a River in Egypt

Today, I spare my readership. Rather than pick the bones of a reported legal autopsy, I prefer to work with some fresh material: my observations of the walking talking clients I've assisted over the last 12 years of employment law.

We humans are not too original in our approach to problems. Often our "approach" is the problem. Only Jesus (the Christ) seems to have been truly "outside the box" in viewing life through the original possibilities of perfection. As for you and me, well, here are some "in the box" observations:

Denial is not a River in Egypt. Everyone who comes to me denies most of his own failings, and assumes more than a fair share of the failings of others.

Others rarely see our work in the same high regard that we do.

Yes, it is true, power corrupts, and you can measure the man or woman by how far up the scale of corruption he or she has gone in relation to his or her promotions. Arrogance acquires a sort of official legitimacy as one is promoted. Managers may acquire a "we" mentality that collides with "them". The logic is this: we define and enforce the rules, even if we change the rules or twist them for ego-driven "I'm always right" purposes. Quite simply, play by our rules, however we use or twist them, or be "eliminated".

A person's dysfunctions don't stop at the entrance to the workplace. Most of our stories and problems are simply chapters in an ongoing saga we bring to our employment. Victims continue to feel victimized. Bullies may change tactics at work, but not characters. Conversely, good people produce good results at work, and healthy personalities form good relationships at work. While this is not surprising, what is less obvious is that the continued survival and success of a destructive or abusive personality at work is a sure sign he has finally found a home. I have also found that good people eventually leave bad companies. They too eventually find a "home".

My clients of course are all good people who left bad homes. And I? I am a wonderful, completely OK person, with no problems who deserves these perfect clients.

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

I Got the Redneck Customer Blues

Think that you have to deal with customers at work that continuously attack you based on your religion or race? Even if it’s just to keep your job? Well, think again. Thanks to the recent case of Galdamez v. Potter (No. 03-35682), Ninth Circuit Court of Appeals, July 15, 2005, the Court expanded an employer’s liability to include harassment and discrimination of an employee by an employer’s own customers.

This was a case of Honduran v. Rednecks.

PLAINTIFF: Arlene Galdamez, a Honduran native who spoke English with an accent. She claims that the town of Willamina, Oregon, where she had been promoted and relocated to, was out to get her because of her national origin, race, and accent.
DEFENDANT: The US Postal Service. They claim that they had no liability for redneck racism towards Galdamez. Besides, Galdamez was a rude monster.

Galdamez complained to USPS that she endured offensive verbal comments from customers, references in local newspapers to her accent, and direct threats to her safety. According to Galdamez, one customer warned her that Willamina was a “redneck town” and that “[e]veryone” would get together and “come kill her” if she continued her job.

USPS did not investigate Galdamez’s claims but did investigate complaints by its employees that Galdamez was rude and lacking good customer service, and eventually placed Galdamez on administrative leave and issued her a formal warning letter. Galdamez promptly filed a lawsuit against USPS in federal court alleging race, color, and national origin discrimination in violation of Title VII.

The Ninth Circuit went against the Rednecks and held that an employer may be liable for third party (customers, vendors, etc.) harassment “where it ratifies or condones the conduct by failing to investigate and remedy it after learning of it.”

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

CA COURT PULLS THE PLUG ON HOSPITAL

An institution in Pasadena California, the Huntington Memorial Hospital, founded in 1892, recently discovered that it had to bring its overtime practices into the 21st Century.

The Case: Huntington Memorial Hosptial v. Irene Mutuc (Aug. 2, 2005).

The Facts: The Hospital paid a "short shift" differential. Specifically, it paid nurses who worked 8 hour shifts more per hour than nurses working 12 hour shifts. Nurses generally preferred 12 hour shifts because it gave them more free time during the week. The Hospital argued it paid the 8 hour nurses more because those shifts were more difficult to fill. The 12 hour shift nurses who sued the Hospital argued they were getting paid less per hour because the Hospital wanted to evade paying overtime based on a higher base rate per hour.

The Court: Don't monkey around with the overtime laws. There are laws and regulations regarding how to calculate the hourly rate, and basically, those laws require the rate to be set without manipulation or trickery to avoid overtime costs. So, a short shift differential looks fishy. After all, the real payroll costs are for the 12 hour workers, so the Hospital can appear to be generous to 8 hour shift workers with a higher hourly rate, but in fact save big money over time with a lower hourly rate for the 12 hour shift workers.

Bottom Line: Simple and uniform payroll rates can save you from a class action for overtime violations. Shift differentials are OK, for example, for night shifts, if the night shift overtime is based on the night shift hourly rate. But "short shift" differentials present a problem because they produce situations where the "hourly rate" drops for workers working longer hours--and that looks like an effort to evade overtime pay.

It's Not So Easy Sleeping Your Way to the Top

Things are shaking at the CA Supreme Court in 2005 concerning workplace rights. Miller v. Dept. of Corrections concerned a Warden who handed out favors to those of his staff who slept with him, but ignored or deprived those who did not when it came time for promotion or assignments. The warden apparently unlocked the gates to 3 such staff members more or less concurrently. Somehow, the warden kept all three of these women happy both in bed and out, because they were not his problem. His problem was multiple suits by other women who claimed the warden discriminated against them because they were not sleeping with him. Their claims were based on demonstrating their superior performance and experience (outside of bed). Bottom Line: The CA Supreme Court expanded the idea of gender discrimination and harassment to include situations where the favored gender is the same as the person claiming discrimination. Before this decision, the right was limited to persons of opposite gender. http://www.employee-rights-atty.com

Are you "hot" enough?

Are you Hot? Well, maybe not “Hot” enough! The California Supreme Court doesn’t have the hots for the babes. In fact, the Court was decidedly cool to an employer whose supervisor directed a subordinate to fire an older female worker who wasn’t the supervisor’s definition of “hot”. The case: Yanowitz v. L”Oreal USA, Inc. (Aug. 11, 2005). The facts: The boss was head of a cosmetics department in a retail outlet. He told his female subordinate to fire her employee because the employee, an older woman, didn’t look “hot” like the young lady he pointed out as an alternative. When the subordinate ignored the order, she was harassed by her boss and eventually quit because of his hostility towards her. She sued the employer claiming she was harassed and punished for resisting an illegal order. She claimed men who were of all appearances were not required to be “hot” as a condition of employment, and that she was being ordered to practice gender discrimination.

Well, there you are: Gender discrimination based on men having the right to be ugly, or at least not “hot”, while women are held to a standard of being “good lookers”. The Court said a lot in this case (don’t they always), but basically: The harassed employee could make her case by showing the Boss had reason to know she didn’t carry out his order because she resisted discrimination, even if she didn’t tell him so directly. Additionally, she didn’t have to be outright fired to make her case. She could prove her work environment was “materially” worse (what does that mean?) because of his mean behavior toward her.

So, if you think you’re less than “hot”, or that your boss is picking on someone who is “less than hot” (this is not a legal term of art!), give the employee rights lawyer a call!

Employee Rights Attorney Frank Pray
5160 Campus Drive
Newport Beach, CA 92660
www.employee-rights-atty.com

(v) 949.251.1006
(f) 949.251.1005

Failing to promptly report harassment by your supervisor can completely bar damages

DAMAGES V. LIABILITY

Under California law, the FEHA (Fair Employment and Housing Act) makes an employer strictly liable for compensable harm caused by hostile environment harassment of an employee by his/her supervisor. While the employer may face strict liability, State Dept. of Health Services v. Sup. Ct (2003) 79 P.3d 556, 31 Cal.4th 1026, 6 Cal.Rptr.3d 441 holds that if the employee does not reasonably report the harassment, his or her recoverable damages may be limited or barred entirely.

HOW ARE DAMAGES REDUCED OR BARRED?

Damages may be reduced or barred if employers establish the “avoidable consequences” defense. In order to do establish this defense, employers must allege the following:
(1) The employer took reasonable steps to prevent and correct workplace harassment;
(2) The employee unreasonably failed to use the preventive and corrective measures; AND
(3) A reasonable use of the employer’s procedures would have prevented at least some of the harm the employee suffered.

If an employee unreasonably fails to report harassment by a supervisor, the employee is denied recovery of only those damages that could have been avoided by using the employer's procedures.

CAN EMPLOYEES RECOVER DAMAGES IF THEY DELAY OR FAIL TO REPORT HARASSMENT?

Employees are always encouraged to report harassment, but sometimes employees may recover damages after reasonable delay or failure in reporting the harassment (for example, if the employee’s supervisor is causing the harassment and company procedures require the employee to report harassment only to that supervisor). In a trial situation, the facts and circumstances of the case will be looked into.

WHAT CONSTITUTES A SUFFICIENT EXCUSE FOR DELAY IN REPORTING ACTS OF HARASSMENT BY A SUPERVISOR?

An employee’s natural feelings of embarrassment, humiliation, and shame may provide a sufficient excuse for delay in reporting.

WHEN IS AN EMPLOYEE EXCUSED FOR FAILING TO UTILIZE AN EMPLOYER'S INTERNAL REMEDIES?

The “avoidable consequences” defense does not apply when taking advantage of the employer’s internal remedies would expose the employee to undue risk, expense, or humiliation.

In addition, the defense is not applicable when there is evidence the employer failed to investigate earlier harassment complaints, failed to act on findings of harassment, or retaliated against the complainants, thus supporting the employee’s claim that he or she acted reasonably in failing to utilize the employer’s established procedures for resolving harassment complaints.

WHAT DOES "REASONABLE" MEAN?

Whether an action is “reasonable” depends on the employee’s efforts “in light of the situation existing at the time”.

WHAT SHOULD AN EMPLOYEE DO IF HIS OR HER EMPLOYER PLEADS THE "AVOIDABLE CONSEQUENCES" DEFENSE?

If an employer pleads the “avoidable consequences” defense, the employee should consider serving discovery requests for all prior complaints of workplace harassment and the handling of those complaints. Such evidence may be helpful to show that the employee was reasonable in delaying or failing to complain.

ISN'T COMPENSATION OF WORKPLACE HARASSMENT VICTIMS SUPPOSED TO BE AN IMPORTANT GOAL OF FEHA?

Yes, but the majority in State Dept. felt that application of the avoidable consequences doctrine would encourage employees to promptly resort to remedies provided by employers and help stop workplace harassment before it became more severe. The doctrine also provides employers with an incentive to establish anti-harassment policies, communicate its policies to its staff, consistently enforce those policies, and promptly intervene when harassment occurs.

What employees associated with public corporations should know about the Sarbanes-Oxley Act of 2002

WHAT IS THE SARBANES-OXLEY ACT?

On July 29, 2002, President Bush signed into law the Sarbanes-Oxley Act of 2002 (SOX) following political outrage at recent corporate accounting scandals (Enron, Worldcom) that caused billions of dollars of loss to its shareholders. SOX applies to public corporations and was designed to protect the public from corporate mismanagement. The Act contains some important protections for whistleblowers.

WHAT KIND OF EMPLOYERS DOES SOX COVER?

SOX covers employers that are required to file reports and that have a class of securities registered under the Securities and Exchange Act of 1934.

Usually, employees of non-publicly traded subsidiaries are allowed to bring Sarbanes-Oxley claims against their employer if the complainant names both the subsidiary and the parent company.

Also, individuals may bring claims against private employers that serve as agents, contractors, or subcontractors of publicly traded companies.

WHAT EMPLOYEES ARE COVERED BY SOX?

Section 806(a)(1) protects employees who "provide information, cause information to be provided, or otherwise assist in an investigation regarding any conduct which the employee reasonably believes constitutes a violation of" specified federal securities and antifraud laws.

        An employee must "reasonably believe" that the information reported constitutes a violation of the federal mail, wire, bank, or securities fraud statutes, any rule or regulations of the SEC, or any federal law relating to fraud against shareholders. So, an erroneous complaint of an employee may be protected, as long as the employee "reasonably believed" that the conduct violated one of the enumerated laws.

        To be covered, the employee must provide the information or assistance to a federal regulatory or law enforcement agency, any member of a committee of Congress, or anyone "with supervisory authority over the employee (or such other person working for the employer who has the authority to investigate, discover or terminate misconduct)."

Section 806(a)(2) protects employees who "file, cause to be filed, testify, participate in, or otherwise assist in a proceeding filed or about to be filed (with knowledge of the employer) relating to an alleged violation" of the enumerated federal provisions.

WHAT KIND OF RETALIATION IS PROHIBITED BY SOX?

Employers are prohibited from retaliating against employees who engage in protected conduct. Prohibited types of retaliation specifically include discharge, demotion, suspension, threats, harassment, or any other form of discrimination.

HOW DO YOU FILE A COMPLAINT?

The complainant first must file a complaint with the Department of Labor within 90 days of the alleged violation (i.e., the date "when the discriminatory decision has been both made and communicated to the complainant").

The Occupational Safety and Health Administration (OSHA) within the Department of Labor is required to give written notice to the employer and other named parties of the complaint. The employer has 20 days to submit written materials and statements to OSHA, and request a meeting to present its position.

WHAT ARE THE REQUIREMENTS OF A COMPLAINT?

The complainant must make a prima facie showing that:

(1) the employee engaged in protected conduct

(2) the employer knew or suspected (actually or constructively) that the employee engaged in the protected conduct

(3) the employee suffered an unfavorable personnel action, and

(4) the protected conduct was a "contributing factor" in the challenged personnel action; otherwise OSHA must dismiss the complaint.

After a prima facie showing by the complainant, if the employer shows by "clear and convincing evidence" that it would have taken the same action in the absence of the protected activity, OSHA will terminate its proceedings. If the employer fails to make this showing, OSHA must, within 60 days of the filing of the complaint, conduct an investigation to determine whether there is reasonable cause to believe that the complaint is meritorious.

If OSHA determines that there is reasonable cause to believe that the complaint is meritorious, it must notify the charged party of the finding and issue a preliminary order curing the alleged violation, including restoring the employee to his or her prior position.

CAN YOU MAKE OBJECTIONS?

Within 30 days of the initial determination by OSHA, either party may file objections and request a hearing before a Department of Labor administrative law judge. All relief ordered by OSHA (other than reinstatement) is put on hold while the complaint is being litigated before an administrative law judge.

CAN YOU APPEAL?

The administrative law judge’s decision becomes the final decision of the DOL, unless a party appeals the decision to the DOL’s administrative review board. Final orders of the administrative review board may be appealed to the Court of Appeals for the circuit where the alleged violation occurred or where the complainant resided at the time of the alleged violation.

CAN YOU FILE IN DISTRICT COURT?

If a final order has not been issued within 180 days of the date that the complaint was filed with DOL, and the complainant is not responsible for the delay, the complainant may withdraw his administrative complaint and file an action in federal district court for de novo review. The same standards and burdens of proof that apply in proceedings before OSHA apply to district court proceedings.

The right to practice religion in the workplace

What kind of religious rights do employees of private employers have in the workplace? Private employers must accommodate reasonable religious expression in the workplace, but they must also protect against discrimination or harassment.

Some individuals, including evangelical Christians, who believe that an essential part of their faith is to convert others and spread the word of God, strongly feel that the workplace should not be excluded in their attempt to inform their colleagues of the enthusiasm that they feel for God. However, if employees are unreasonably intrusive toward other employees regarding their religious beliefs, and discrimination or harassment could result, an employee is typically not allowed to exert his or her religious faith at work. Therefore, unless an employee’s colleagues are accepting of his or her proselytization, such conduct is usually not allowed by employers.

Just as federal workers are allowed to practice their religion as long as it does not affect workplace efficiency or could be seen as government endorsement of religion, private employers are bound to discourage their employees from practicing their religion when it could be seen as corporate endorsement of religion or could reduce efficiency in the workplace.

Interestingly, some corporations not only offer access to their corporate facilities for religious gatherings, but also offer budgets that could run into the thousands of dollars. Such endorsement results from the theory that employees who connect through their religion at work become more engaged in their work. Employers who generously offer their services for religious purposes believe that religion in the workplace actually promotes efficiency, even though there still exists a resounding risk of corporate endorsement of religion and potential lawsuits for discrimination and harassment.

Reconciling increased workplace efficiency resulting from the practice of religion by employees in the workplace with possible intrusion of religious beliefs by certain employees, Ford Motor Co. has developed an interfaith model that allows faith-based groups to form as long as they work jointly as part of an interfaith network.

The interfaith model does seem to exist at the financial expense of Ford. For example, religious accommodation through the interfaith network includes providing Muslim workers with a place for foot-washing and prayer, allowing Christians to punctuate e-mails with a Bible verse, or serving Jewish employees the proper cake during Passover. Although these accommodations come at a cost, perhaps these expenses are minimal compared to the communion that the employees obtain through their religious beliefs and faiths, effecting increased employee efficiency and serving both the employee and the employer in the long run. Potential lawsuits are also reduced in the interfaith model because the diversity of religions involved tends to offend fewer employees.