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Employment Law Blog

Wednesday, October 05, 2005

Lost productivity…really?

CNN money reports that the Major League Baseball playoffs might “?cost employers about $225 million this year”.  That’s an estimate from an outplacement firm, which seems to be based on an eyebrow raising calculation of lost work time.  I guess employers should be happy, the same firm estimated that March Madness would cost employers over $889 million in lost work.

These kinds of stories certainly provide catchy headlines (they always seem to get my attention) but don?t really address the issue of lost work time, particularly as it relates to Internet use.  A quick Google search revealed some University studies which indicate that most workers use the Internet for work-related activities and, more interestingly, spend more time at home using the Internet for work than the time they spend at work doing personal stuff.

Keep this in mind when the Superbowl comes rolling around.

Posted by Patrick Della Valle on 10/05 at 11:38 AM
Thursday, September 29, 2005

Where Do You Spend Your Time?

A friend once told me that if you want to identify what is truly important to a person or company, all you need do is identify where they spend their time and money.  I therefore found the results of a recent survey by The Gallup Poll? interesting.

In my personal experience, I have observed that more and more employees seem to be working very long workweeks.  That trend may be changing.

Gallup reports that between 1993 and 1999, the percentage of employees surveyed who reported that they worked, on average, more than 45 hours per week increased from 37% to 45%.  However, since the poll taken in August 1999, that percentage has trended downward, to 43% in 2001, 40% in 2002, and now 39% in 2005.

I wonder whether this downward trend is an indication that individuals who are working, on average, more than 45 hours per week are re-evaluating the priorities in their lives, and making necessary changes to ensure that their priorities are properly reflected in their time.  I also wonder whether the tragic events of September 11, 2001 helped solidify this trend by forcing us all to re-focus on our priorities in life.

Or is there some other explanation?  I would like to hear your thoughts.  (You may share them by clicking “comments” on the Blog main page.)

Posted by Patrick Della Valle on 09/29 at 04:48 PM
Friday, September 23, 2005

Tattoos and Religion

Do you think it is okay for an employer to refuse to hire applicants with visible tattoos because the employer wants to promote a wholesome image?  Think again . . . .

Red Robin Gourmet Burgers, Inc., whose former CFO stated that the restaurant chain seeks out ?that all-American kid from the suburbs? for its server positions, has (maybe I?d better make that ?had?) a dress code policy for servers that prohibited visible tattoos.  Understand?the policy did not prohibit having tattoos, but did require that the server conceal them with clothing while at work.

Edward Rangel, a server in a Bellevue, Washington Red Robin, requested an exception to the dress code.  According to Mr. Rangel, he is a follower of the Kemetic Orthodoxy religion, a modern practice of ancient Egyptian traditions, founded in the late 1980s.  Mr. Rangel asserted that he believes it would be a sin for him to conceal the religious inscriptions that encircle his wrist (in the form of tattoos.)  Red Robin declined to allow an exception to its dress code, and terminated Mr. Rangel?s employment when he refused to wear clothing that would conceal his tattoos.

The EEOC filed suit against Red Robin for religious discrimination.  The Court held that Red Robin had to support its defense that the dress code exception would create an undue hardship on its business with more than hypothetical hardships based on unproven assumptions.  In other words, the Court rejected Red Robin?s ?wholesome image? argument without concrete evidence that the dress code exception would hurt its business.  After that ruling,  Red Robin agreed to settle the lawsuit by paying Mr. Rangel $150,000 and changing its policies to allow for accommodation of religion.

So if you are served by someone with tattoos, do not assign responsibility (either blame or credit?depending on your perspective) to the employer.  Instead, you can thank Mr. Rangel, the EEOC and a federal district judge in the Western District of Washington.

I wonder when the First Church of the Harley-Davidson will be founded . . . .

Posted by Patrick Della Valle on 09/23 at 05:18 PM

Heavy workers, hefty price

It should come as no surprise that it costs more to employ obese people.  As reported here:

The average medical expenditure for a normal-weight man is $1,351 a year. Men who are 30 to 60 pounds overweight cost $462 more based on added medical costs and absenteeism. Extremely obese men cost $2,027 a year more.

Average medical expenditures for normal-weight women are $1,956. Women who are 30 to 60 pounds overweight cost $1,372 more when medical costs and missed work are included. Women who weigh 60 to 100 pounds too much cost $2,485 more.

My question is whether corporate wellness programs actually work?  The economist quoted in the above article doesn?t seem to think so, at least not for the morbidly obese employees.  Irrespective of disability discrimination issues (some obese employees may suffer from conditions protected by the ADA or State FEP laws), it certainly would be a bad employee relations tactic to just fire all of your fat employees.  Are there any practical suggestions on how employers are successfully handling this issue?

Posted by Patrick Della Valle on 09/23 at 09:39 AM
Wednesday, September 21, 2005

Decisions, decisions

There’s an interesting article in yesterday’s New York Times about female students at Ivy League schools and the, now familiar, “work/life balance” question.  It seems that “many women at the nation’s most elite colleges say they have already decided that they will put aside their careers in favor of raising children.”  It’s hard to say whether that’s true, as the he story is almost entirely anecdotal about attitudes of current students.  The evidence does, however, appear to confirm that nearly half of the women at Yale will leave the workforce by the time they are in their 40?s:

According to a 2000 survey of Yale alumni from the classes of 1979, 1984, 1989 and 1994, conducted by the Yale Office of Institutional Research, more men from each of those classes than women said that work was their primary activity - a gap that was small among alumni in their 20’s but widened as women moved into their prime child-rearing years. Among the alumni surveyed who had reached their 40’s, only 56 percent of the women still worked, compared with 90 percent of the men.

A 2005 study of comparable Yale alumni classes found that the pattern had not changed. Among the alumni who had reached their early 40’s, just over half said work was their primary activity, compared with 90 percent of the men. Among the women who had reached their late 40’s, some said they had returned to work, but the percentage of women working was still far behind the percentage of men.

A 2001 survey of Harvard Business School graduates found that 31 percent of the women from the classes of 1981, 1985 and 1991 who answered the survey worked only part time or on contract, and another 31 percent did not work at all, levels strikingly similar to the percentages of the Yale students interviewed who predicted they would stay at home or work part time in their 30’s and 40’s.

I don?t think that anyone should question a person?s decision to place more value on child rearing than working, but shouldn?t employers be free to come to the alternate conclusion?  If it?s true that 60% of Yale?s female graduates plan on dropping out of the workforce ? a historically accurate percentage ? does it make sense to hire one?

What do you think?  Post your comments!

Posted by Patrick Della Valle on 09/21 at 11:02 AM
Wednesday, August 31, 2005

Ouch! - $800 hourly attorney fee award affirmed

A California Court of Appeals recently approved a plaintiff?s attorney’s fee award of $800 per hour in a sexual harassment case.  It?s an unpublished opinion, but can be found here (this is a direct link to an MS Word Document).

Posted by Patrick Della Valle on 08/31 at 10:01 AM
Friday, August 26, 2005

Looking Good and Job Requirements

Check out the en banc oral argument in Jesperson v. Harrah’s here.  (This is a direct link to a Windows Audio File!). The case deals with employer rules for sex-differentiated grooming standards.  We’ve got a bunch of articles discussing the 9th Circuit’s earlier decision here.

Posted by Patrick Della Valle on 08/26 at 10:18 AM
Friday, August 19, 2005

“Why We Hate HR”

I?m behind the curve on this one, but if you haven?t already seen it, check out his month?s issue of Fast Company.  The cover story seems to be generating some serious debate.

Posted by Patrick Della Valle on 08/19 at 01:59 PM
Monday, August 15, 2005

Outside the Statutory Time Period but Inside the Courtroom

Can an employee present evidence of an alleged discriminatory or harassing incident that occurred more than 300 days before that employee filed a charge with the EEOC?  Many would think that the answer is “no.” 

Most HR professionals and employment attorneys are well aware that a charging party must file a charge with the EEOC or other agency within 180 days (or within 300 days if the alleged unlawful conduct occurred in a jurisdiction that has a local or state agency that handles fair employment practices charges) of the alleged unlawful occurrence.  However, the passage of 300 days without a charge filed certainly does NOT mean that evidence of the alleged occurrence will not ultimately be presented to a jury.  Let me explain . . . .

On July 21, 2005 the Equal Employment Opportunity Commission (?EEOC?) revised the portion of its Compliance Manual that addresses time limitations on filing employment discrimination charges.

Per the EEOC, it issued the revision to its Compliance Manual to reflect the holding of the U. S. Supreme Court in National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002).  In that case the Supreme Court noted that a hostile work environment claim may be based on a series of separate acts which collectively constitute the hostile work environment for which recovery is sought.  The Court found that as long as even one act contributing to the claim occurred within the filing period, all of the contributing acts during the entire period of the hostile environment can be considered for determining liability.  Thus the EEOC Compliance Manual now provides that in a hostile work environment claim, the entire claim, including incidents that occurred outside the filing period, is actionable as long as at least one incident that is part of the claim occurred within the filing period.

?Oh,? you say, ?but at least the Supreme Court in National Railroad Passenger Corp. made it clear that discrete acts, such as termination, failure to promote, denial of transfer or refusal to hire are not actionable if time barred.?  Do not be too quick to make that assumption. The EEOC creatively asserts in its Compliance Manual that even a discrete act may be argued to be part of a hostile work environment (and thus still actionable even if otherwise time-barred).  In doing so, the EEOC cites to a 2003 decision by the D. C. Court of Appeals, and disagrees with a 2004 decision by the Ninth Circuit Court of Appeals.  The EEOC does note that recovery for an untimely-asserted discrete act is limited to assessment of damages for the hostile work environment, and the charging party would not be entitled to specific relief, such as back pay or instatement, for the discrete act itself.

Both the Supreme Court in National Railroad Passenger Corp. v. Morgan, and the EEOC also point out that evidence of alleged discriminatory acts, for which no timely charge was filed, can also be admitted at trial and considered as background evidence in support of a timely claim.  Of course, once a jury has seen evidence of acts for which no timely charge was filed, there is no guarantee that the jury will not, consciously or subconsciously, factor those acts into their damage award in some way.

Finally, the EEOC takes the position in its Compliance Manual that if a claim alleges a pattern or practice of discrimination, and at least one act that is a component of the pattern or practice of discrimination occurred within the statutory filing period, there is no time limitation at all, and damages can be awarded for all acts that occurred as part of the pattern or practice, without regard to how long ago they occurred.

Posted by Patrick Della Valle on 08/15 at 09:02 PM
Monday, August 08, 2005

Are you a lovable fool? a competent jerk?

The June issue of Harvard?s Business Review includes a new study on work partners.  According to the abstract:

?New research shows that work partners tend to be chosen not for ability but for likeability. Drawing from their study encompassing 10,000 work relationships in five organizations, the authors have classified work partners into four archetypes: the competent jerk, who knows a lot but is unpleasant; the lovable fool, who doesn’t know much but is a delight; the lovable star, who’s both smart and likeable; and the incompetent jerk?.

Clearly, everyone wants to work for the lovable star, but most people would rather work for the lovable fool than the competent jerk.  That doesn?t surprise me (having had to work for a number of competent jerks over the years), but what?s the lesson to learn?  Attempt to reform the jerks in your organization and recognize that it?s not always foolish to keep a few fools around.

Posted by Patrick Della Valle on 08/08 at 09:43 AM
Friday, August 05, 2005

Sending the Wrong Message

According to a new Tulane University study, flirtatious women get fewer raises and promotions.  You can check out the article here.  I?m no economist, but something about this study strikes me as odd.  The study is based on self-reporting by 164 MBA graduates, in which they were asked to respond to ten questions about their conduct at work, including ?I flirt with people at work? (all 10 are reproduced below).  While 49% of the women reported engaging in at least one of the 10 behaviors, almost all of the women said it was ?infrequent?.  I haven?t seen the actual study (to be released on Monday), but if I?m reading the article correctly, women who infrequently flirt with co-workers will be promoted, on average, one less time than women who never engage in this type of behavior.

Obviously, the issue is not whether the two are correlated, but whether the flirty behavior causes the managerial decision not to promote or grant a pay raise.  I?m not sure whether the study does (or can) prove causation, but how can you control for the myriad of policies and procedures that govern promotions and raises?  If you?ve ever had the misfortune of litigating a failure to promote or an Equal Pay Act case, particularly in a large company, you know how tedious it can be to ferret out the causes for these decisions.

<u>Ten Questions</u>:
<li>I wear a skirt or something more revealing than usual around clients or supervisors to get attention.
<li>I flirt with people at work.
<li>I draw attention to my legs by crossing them provocatively when in meetings or sitting with a group of men at work.
<li>I hint or imply that I am attracted to a man (men) at work even if I am not.
<li>I purposely let men sneak a look down my shirt when I lean over a table.
<li>I massage a man’s shoulders or back while at work.
<li>I sent flirty or risqu? e-mails to male co-workers.
<li>I tell male co-workers or clients they look sexy or “hot.”
<li>I allow men to linger at certain places of my body while hugging them.
<li>I emphasize my sexuality while at work by the way I dress, speak, and act.

Posted by Patrick Della Valle on 08/05 at 10:17 AM
Thursday, August 04, 2005

Firing Employees in the Information Age

If you didn?t think it was already tough enough to fire an employee, check out this web site.  It?s dedicated to stories submitted by former employees about their terminations.  If I had to guess, it?s a marketing strategy for an affiliated site (a search engine for job postings).  I read through a couple of ?stories? and none of them seemed silly, outrageous or embarrassing to me (at least not the ones that sounded true).  Most of them just made me cringe.  One of the posts is titled ?Fired Over Known Handicap?.  Who?ll be surprised if some company files suit, claiming it was defamed by one of the stories?  (On a related information-age lawyering note, always remember to seek discovery on an employee?s post-employment communications—you might be surprised by what you find).

Posted by Patrick Della Valle on 08/04 at 09:28 AM
Friday, July 22, 2005

Workplace Blogging Policy

There’s a great article here on the dangers of workplace blogging.  If you don’t already have a workplace blogging policy in place, you should start thinking about one.  Here are some sound suggestions on developing the policy.  As always, contact your employment lawyers before implementing a new policy.  If you do adopt a blogging policy, make sure it includes guidelines on podcasting, which should be the source of the next wave of HR headaches.

Posted by Patrick Della Valle on 07/22 at 09:09 AM
Friday, July 08, 2005

Workplace Blogging

The Electronic Frontier Foundation (which describes itself as “a donor-supported membership organization working to protect our fundamental rights regardless of technology”) has added a Bloggers’ FAQ on Labor Law (located here).  It’s written for employees and addresses legal issues arising from workplace blogging.  I found the discussion on NLRA rights the most interesting.  Of the few terminations that have occurred as a result of employee blogging, I don’t think anyone has challenged the dismissal based on Section 7 rights.  That said, I would expect to see that lawsuit within the next year or so.

Posted by Patrick Della Valle on 07/08 at 09:49 AM
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.

Posted by Patrick Della Valle on 05/20 at 02:52 PM
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