Wednesday, March 30, 2005

Dishonesty in the Workplace and Rules for Living

As I read a recent news story about widespread dishonesty in the workplace , I couldn’t help but reflect on an irony of life in America in 2005.  By nearly every standard, we are the richest nation not only in the world, but also in history.  To put it another way, we’ve got it very good.  Nevertheless, judging from the news story and my personal observation, it appears that Americans are forfeiting good character and becoming more and more dishonest (and making excuses for doing so.)

As a result of this reflection, I want to share a list of five simple Rules for Living (author unknown). 

They were given to me by a former co-worker (thanks, Mike).  I keep them taped to my computer and re-read them regularly:

“Take responsibility for your life.  Stop making excuses.  Make yourself responsible for your thoughts, words and actions.

Rule One Be a majority of one.  Do what is right and good.  Don’t worry about being popular.

Rule Two Don’t let the fact that you can’t do all you want to do stop you from doing what you can do.  Do something.

Rule Three Don’t hate people who use violence.  Evil only begets evil.  Love those who don’t agree with you.

Rule Four Always be involved in helping someone.  Use your life to enrich those around you.  Be a nourisher.

Rule Five You can make a difference if you fill your life with love and service.  Our true wealth and greatness is the good we do.”

Wednesday, March 23, 2005

“Off the Clock” Conduct Leads to Termination

Jay, a 53-year-old married man, enjoyed acting in a local theater group on his own time.  In fact, he recently landed a starring role as Daddy Warbucks in the theater group’s presentation of “Annie.” Jay found himself smitten by a 16-year-old girl who also acted in the play.  Jay sent her an email expressing his love for her.  He also met with the girl, turned the lights down, lit a candle, and shared non-alcoholic Bananas Foster with her while playing music from “The Phantom of the Opera.” There is no report of any inappropriate physical contact between the two, and no allegation of illegal conduct.  Can this “off the clock” conduct result in Jay losing his job?

The answer from Marion County, Indiana is a resounding “YES,” especially given that Jay Meisenhelder was a Deputy Prosecutor and Assistant Chief of the Sex Crimes Division in the county.

Once I got past my “What WAS he THINKING?” reaction to this story, I reflected on the recent reports of termination following what many would consider “private conduct.” There exists a widely-held opinion that private conduct is none of the boss’s business (perhaps reinforced by the very visible acquittal of Bill Clinton after the Clinton/Lewinsky affair and related, admittedly false, Clinton testimony.) However, employers do have and do take an interest in conduct that, though not directly related to job performance, can have some impact on the employer.  This is true even if that impact is only loss of character reputation of the employee.  This is also true even if the conduct broke no laws, but only reflected “poor judgment.” Employees should understand this.  Employers may be able to help prevent some of these embarrassing situations by addressing this issue when providing education and training.

Tuesday, March 22, 2005

Madam Librarian

The AP has picked up the story of the Harvard librarian who is suing for race and sex discrimination.  In her allegations, she claims that her supervisor told her she was a “joke”, apparently because she “was seen merely as a pretty girl who wore sexy outfits, low cut blouses, and tight pants.” I hope that’s not all she has to make her case, but it should make for an interesting trial, especially if Harvard admits that its decision was based on her appearance.

Thursday, March 17, 2005

Qui Tam is Alive and Well

Northrop Grumman Corporation reported this month that it will pay $62 million to settle all claims in a “qui tam” lawsuit.  That is a lot of money, and the settlement should serve as a “heads-up” to all employers who receive payments from the federal government or one of the states that allows for qui tam actions.

So what is this stealth whistleblower law affectionately referred to as “qui tam”?  “Qui tam” is shorthand for the Latin phrase “qui tam pro domino rege quam pro sic ipso in hoc parte sequitur” which means (roughly) “who sues for the king as well as for himself in this matter.”

A federal law called the False Claims Act includes a provision that allows a private citizen (called a “relator”) to bring a claim that a company or individual is cheating the government, and to share in any recovery.  The law was enacted in 1863 to help identify and address widespread military contractor fraud during the Civil War.  Although this was the original purpose of the Act, it applies to all government contractors, federal programs and allegations that relate to the use of federal revenue.

In 1986, Congress amended the Act, making it easier for private citizens to bring a fraud claim, and also increasing the private citizen’s share of the recovery.  The provisions of the Act have been applied to many types of claims, including over-charging the government for goods or services or charging for goods and services that were not actually provided, fraudulently certifying that goods or services meet specifications when they do not, fraudulently charging or over-charging for medical services paid for by Medicare or Medicaid, and falsely certifying entitlement to federal benefits.

The complaint against Northrop Grumman alleged that the company fraudulently accounted for materials purportedly used in fulfilling defense contracts and inflatied the cost of a device sold under an Air Force Contract.  The Northrop Grumman employees who originally filed the claim in 1989 will receive $12.4 million as their share of the recovery.  (Both of them had been fired and separately settled their claims for employment discrimination.  The False Claims Act includes a provision that prohibits retaliation and provides for full recovery and double back-pay for an employee who has been retaliated against.)

Employers beware:  First, ensure all charges to a government entity are appropriate and accurate.  If in spite of your efforts, an individual (employee or other) raises any claim that suggests that a government entity may have been over-charged, PAY ATTENTION!  Provide for an immediate, thorough, investigation and make sure that the claim is addressed appropriately!  Qui tam is alive and well and making millionaires!

Monday, March 14, 2005

9th Circuit Sets a Trap for Employers

To expedite the application process and make it more convenient for flight attendant applicants, American Airlines extended a conditional offer to applicants for flight attendant positions who successfully completed the interview process.  The offer was conditioned on the applicant (1) successfully completing a background check, and (2) successfully completing a medical exam that confirms that the applicant can perform the essential functions of the safety-sensitive position.

So what did American Airlines do wrong?

According to the Ninth Circuit in a March 2005 opinion, (Leonel v. American Airlines, 9th Cir., 3/4/2005) (pdf) an employer must complete all non-medical aspects of the hiring process before it obtains any medical information, or be able to demonstrate why it could not reasonably do so.  Expediting the hiring process or making the process more convenient for the applicant are not, according to this Court, justification for obtaining medical information before a background check is completed.

Although this case was decided at summary judgment stage, and American Airlines will now be allowed to present evidence at trial regarding whether it could (or could not) reasonably have completed the background check before obtaining medical information, employers should re-evaluate their hiring practices.  Employers who require a medical or physical examination—especially those hiring in California, Alaska, Washington, Oregon, Idaho, Montana, Nevada, or Arizona (states included in the Ninth Circuit)—should solicit medical information only after an applicant has successfully completed all other aspects of the screening process, and after that applicant has been issued an offer of employment conditioned solely on successful completion of the medical or physical exam.

One more thing—the Ninth Circuit also found fault with American for not telling its applicants what blood tests would be conducted on their blood samples (a Complete Blood Count.) Although the applicants clearly knew that blood was being drawn, the Court stated that drawing blood without telling the examinee what tests would be performed may be enough to give the examinee a claim for invasion of privacy—at least under California law.