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Employment Law Blog

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.

Posted by Patrick Della Valle on 05/13 at 05:24 PM
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.

Posted by Patrick Della Valle on 05/02 at 10:13 PM
Wednesday, April 27, 2005

Not Man Enough?

Although some states and cities have seen fit to include homosexuals, bi-sexuals and trans-gendered individuals as a protected class and provide a prohibition against discrimination on based on those characteristics, most believe that federal law (Title VII of the Civil Rights Act of 1964) does not prohibit discrimination on those bases.  However, the times, they are a-changin?—especially for employers in Oregon and states within the jurisdiction of the Sixth Circuit Court of Appeals.

As our society has become more accepting of sexual orientations other than heterosexual, and of transvestitism and transexualism, it is no surprise that some jurisdictions have passed state and local laws prohibiting discrimination on those bases.  For example, Maine will add sexual orientation, defined as a person?s actual or perceived heterosexuality, bisexuality, homosexuality or gender identity or expression, to its list of protected categories as of June 2005.

In addition to law changes brought on by legislative bodies, the Federal Court of Appeals for the Sixth Circuit and the Oregon Federal District Court have interpreted Title VII to prohibit discrimination against a homosexual male (Oregon) and a pre-operation trans-sexual male (Ohio) under the theory that the prohibition against sex discrimination also prohibits employers from discrimination on the basis of sexual stereotyping.  In other words, the courts found that discrimination or harassment against an individual because his behavior or appearance is seen as effeminate or not manly enough can support a claim for sex discrimination in these two jurisdictions.

In the Oregon case, Kevin Turner, who is homosexual, alleged he faced constant harassment, including co-workers who put bananas in their pants and rubbed up against him. He also alleged his supervisor picked up a purse and called him ?Kevina? during an employee morale-boosting event.  In the case decided by the Sixth Circuit (pdf), Phillip (now Philecia) Barnes alleged that his promotion to Sergeant of the Cincinnati Police Department was revoked in part because he was a male-to-female transsexual living as a male while on duty but as a female when off-duty.  (Barnes had a French manicure, arched eyebrows, and sometimes wore lipstick and makeup to work.  Witnesses for the Cincinnati Police Department testified that Barnes did not have the respect of subordinate police officers.) 

Both plaintiffs sued using the theory that sexual stereotyping?discrimination because a person?s conduct or appearance does not fit that traditionally expecte for their gender?is a type of sex discrimination under Title VII.  The Oregon district court and the Sixth Circuit Court of Appeals agreed that Title VII provides this cause of action.  (This is not the first case from the Sixth Circuit interpreting Title VII in this way.  The same Court decided Smith v. City of Salem (pdf) in June 2004.)

What does this mean for employers?  Just because you are not in a jurisdiction that has legislatively designated sexual orientation as a protected class, it is not safe to assume that you can base employment decisions on things like, say, a male employee wearing lipstick and a dress to work.  When issues of sexual stereotyping come up, you’d better call your lawyer?preferably BEFORE taking any action?to learn the current status of this issue in your jurisdiction.

Posted by Patrick Della Valle on 04/27 at 04:37 PM
Thursday, April 21, 2005

The Baser Basics

Laurie R. Jones? posting of April 12 (see below) references ?commonsense? warnings that are, for some reason, ?necessary to repeat . . . and repeat . . . and repeat.?  For human resource professionals and employment attorneys, the need to repeat these warnings over and over again may well lead to the conclusion that common sense is, unfortunately, not very common.

Okay.  At the risk of (and for the benefit of) repetition, let?s say this again.

Speaking of sex . . .

. . .  in the workplace, or with coworkers outside the workplace is NOT a good idea.

It doesn?t matter if a person doesn?t mean harm, means the comments to be a joke, or is even just referring to a Seinfeld episode, talking about sex with a co-worker or other business associate is a very bad idea.  It can lead to discipline, termination, litigation, and other less-than-desirable results.  Picture any discussion about sex as placing your future in the hands of the hearer.  Remember, and remind others?before telling that sexual joke, or otherwise talking about sex, think about whether it is really worth risking your job over.  Think about how it would feel to have to explain that one to friends and loved ones.  If you choose to talk about sex, keep it far away from work and any connection to your employment. 

‘Nuff said?  (sigh)  Probably not . . . .

Posted by Patrick Della Valle on 04/21 at 11:45 PM
Tuesday, April 12, 2005

Killing Litigation with Kindness

A new book is getting a lot of buzz among the Human Resources ranks and is even discussed in the April 11, 2005 edition of Time magazine:  The Likeability Factor, by Tim Sanders, a Yahoo! executive.  What is The Likeability Factor and why should management care? ?A person who gives others ?a sense of joy, happiness, relaxation or rejuvenation,? says Sanders, is more likely to be hired, promoted and retained. According to research, he says, likeable bosses, rather than inconsiderate or feared ones, get the best work out of employees. Nastiness, which he says is rampant, translates into less productivity, higher turnover and a culture of unhappiness.? (Time magazine, ?Animals, Behave; A New Book Tells Why Likeability Not Intimidation is the Real Key to Conquering the Workplace?).  ?The basic rules are pretty, well, basic: No screaming, hanging up phones, slamming doors and expressing biting sarcasm. The bottom line for really slow learners: ?Just be quiet and stop being so unfriendly.?” (Id.). 
Something we in HR have espoused for years and certainly something employment attorneys wish for:  the jury loves a likeable boss!  So why all the hoopla? 

?Play nicely!? It?s interesting that such a commonsense warning is necessary to repeat?and repeat?and repeat.  But any seasoned employment attorney or HR executive will confirm:  many employment disputes reach costly litigation simply because the boss was a jerk.  Employees will put up with a lot from a boss (and an organization) that is friendly, caring, and respectful.  Put an employee with a screamer, and you are sure to hear the EEOC knocking at your door.  Bottom line?  Sanders? advice holds true not only for increasing productivity, promotability and reducing turnover.  It will also lower the organization?s legal bills.

Posted by Patrick Della Valle on 04/12 at 04:21 PM
Friday, April 08, 2005

Beauty in the eye of the beholder

I thought I should provide a link to the analysis that forms the basis of the AP’s article on the relationship between good-looks and pay.  I guess the “beauty premium” is just an ugly fact of the American workplace.

Posted by Patrick Della Valle on 04/08 at 09:46 AM
Monday, April 04, 2005

Non-Pregnant Employee Covered by the PDA?

Riddle me this:  When is a non-pregnant woman permitted to bring a claim under the Pregnancy Discrimination Act of 1978 for pregnancy discrimination???  Just ask the 6th Circuit Court of Appeals who recently heard the case of Nurse Suzanne Kocak. (Kocak v. Community Health Partners of Ohio Inc., 6th Cir., No. 03-4650, March 11, 2005.)

In 1999, Ms. Kocak worked for Community Health Partners of Ohio, Inc. and resigned because of medical complications associated with her pregnancy.  In 2000 and again in 2001, she applied to work on a part time basis with her old employer and was turned down both times.  Apparently, Nurse Kocak was not unlike the infamous Nurse Ratched: Community Health asserted that Nurse Kocak was turned down for employment because she was ?avidly disliked? by her peers, difficult to work with, and had been involved in frequent conflicts at work. Ms. Kocak, while admitting to these performance issues, maintained her denial of employment was motivated by considerations in violation of the PDA.  The District Court held that Ms. Kocak was not covered by the PDA as she was not pregnant at the time of her reapplication, and no medical condition related to pregnancy manifested itself during this time.

This is when you should scratch your head and wonder, ?Where?s the lawsuit here??  Enlightening you with two facts I omitted should solve this confusion:  1.) Ms. Kocak testified that a personnel manager at Community Health asked Ms. Kocak during her 2001 reapplication process if she was pregnant or planning on having any more children; and 2.) Ms. Kocak also testified that her former supervisor said she would not agree to rehire Ms. Kocak because of the complications of her 1999 pregnancy. 

Not surprisingly, the 6th Circuit found the District Court erred in determining that Ms. Kocak was not covered by the PDA; instead, the Circuit Court opined that Ms. Kocak is protected by the PDA and cannot be refused employment on the basis of her potential pregnancy.  Interestingly, the Court declined to comment on whether a plaintiff who had never before been pregnant could assert a claim under the PDA.  So, while a previously pregnant, but not currently pregnant, employee can find protection under the PDA, the riddle remains as to whether a never before nor currently pregnant employee could do the same.

In the end, Community Health was successful in their defense, offering ?substantial evidence? that it would have decided not to rehire Ms. Kocak absent any illegal motive.  (Remember the Nurse Ratched similarities?  Enough said.)  It appears, however, that this case went all the way to the 6th Circuit because of the two awkward statements made by Community Health management regarding Ms. Kocak?s plans for more children.  Who isn?t groaning loudly after hearing of this completely avoidable debacle?

My two cents for employers: 
1. Every supervisor (including HR) should understand the implications of federal, state and local employment laws.  Do they know what the PDA is and what it means? 
2. Inform those responsible for interviewing and hiring how to properly conduct an interview.  The loose lips of the personnel manager and the hiring supervisor could have easily sunk Community Health?s ship. 
3. Document performance concerns of every employee.  It was only the uncontroverted evidence of Ms. Kocak?s poor performance that saved Community Health. 

Posted by Patrick Della Valle on 04/04 at 03:26 PM
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.?

Posted by Patrick Della Valle on 03/30 at 04:35 PM
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.

Posted by Patrick Della Valle on 03/23 at 12:46 PM
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.

Posted by Patrick Della Valle on 03/22 at 11:51 AM
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!

Posted by Patrick Della Valle on 03/17 at 11:38 AM
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.

Posted by Patrick Della Valle on 03/14 at 07:06 PM
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