Friday, May 20, 2005

Qui Tam . . . . Again!

Heads up, all you employers!  If you receive payments from the federal government, make sure your accounting and billing is all accurate and proper, or you too could face a multi-million dollar hit.

Oracle Corp. announced this week that it will pay $8 million to settle a whistleblower lawsuit claiming that it fraudulently billed the federal government for training.  According to a Newsday article,  $1.58 million of the settlement money will go to the former employee who blew the whistle on the company.  Oracle Corp. denies any wrongdoing.

This type of claim, referred to as a “Qui Tam” lawsuit, can lead to very large judgements and settlements.  For more understanding of this cause of action, see “Qui Tam is Alive and Well”, posted on this blog site March 17, 2005.

Friday, May 13, 2005

Where There’s Smoke . . . You’re Fired!!

I am sure we are all aware that employers are having to find ways to deal with sharply escalating costs of providing medical coverage.  As reported in a recent news story, some employers are thinking “outside the box” (or should that be “outside the pack”?) and are refusing to hire and even terminating individuals who smoke—even those who smoke only away from the workplace.

This raises issues of discrimination, invasion of privacy, and, some would say, “big-brother” control.

The news story reports that more than 20 states have passed statutes prohibiting discrimination on the basis of “lifestyle decisions.”  (Having not researched this fact, I cannot tell you which 20 states these are.  I can tell you that Texas, from whence I write, is not one of them.)

I had to think about this trend of refusing to employ smokers for a while to arrive at my own opinion.  However, being a firm believer in free choice, and thus a proponent of at-will employment, I had to remain true to my principles.  If I choose to smoke, my employer should be free to end our relationship on that basis.  Neither my employer nor my coworkers have any obligation to bear an increased cost because of my choice.  (My husband and I are a split household on this issue.  While he believes the company should be allowed to charge employees who smoke higher insurance rates (as some companies do), he does not believe a company should be able to “dictate” that its employees cannot engage in lawful conduct while off company time and premises.)

The cost of smoking is felt not only in medical insurance premiums, however.  It also shows up in other areas, such as time away from work due to increased illness.  Additionally, other “off-the-clock” conduct can certainly lead to termination.  So yes, employers SHOULD be allowed to base employment decisions on whether an individual smokes on their own time and away from work.  Smoking is a choice.  We need to come back to the realization that our choices carry consequences.  We should bear the consequences of the choices we make.  But now I am starting to preach. . . .

I am very curious how others evaluate this trend, and welcome and encourage your comments.

Monday, May 02, 2005

Drinking and Sex

Question:  Since when is terminating an employee for drinking on the job grounds for a sex discrimination case?

Answer:  When the employer applies its rules inconsistently, and disciplines a woman for drinking on the job more severely than it disciplines men for the same infraction.

A recent storyfrom San Francisco provides a very good reminder to employers:  apply your policies consistently!  Seems that the San Francisco Fire Chief, herself a woman, recently replaced San Francisco Fire Department’s zero tolerance for substance abuse with a new policy that considers each case on its own merits.  Plaintiff (and former firefighter) Cynthia Childers has sued the Deparment for sex discrimination.  Ms. Childers claims that after she was found to have been drinking on the job she was terminated, while “dozens” of male firefighters were sent to rehabilitation when they were caught drinking on the job.  (Of course, whether her allegations are true remains to be determined.)

Does this mean that employers must enforce discipline rigidly, without considering the facts of each case?  Not at all.  What it does remind us, however, is that a failure to apply (even very good, justified) rules and discipline consistently, with “the punishment or corrective action” consistently fitting the infraction, can lead to claims of unlawful discrimination and attendant litigation costs.