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Archive for the ‘Employment Law/Cases’ Category
Saturday, February 4th, 2012
The First Circuit recently refused to overturn a jury’s finding of retaliation under the Age Discrimination in Employment Act (“ADEA”) despite the defendant’s claims that the plaintiff had not established a prima facie case. In Munoz v. Sociedad Espanola de Auxilio Muto Y Beneficiencia De Puerto Rico, the Plaintiff was a cardiologist who was terminated by the defendant-Hospital one day after the Plaintiff was deposed in a lawsuit against the hospital for age discrimination. The Plaintiff then promptly filed a second suit against the Hospital claiming that he was terminated in retaliation for his pending age discrimination suit. The jury agreed with the Plaintiff and awarded him nearly $2 million. On appeal, the Hospital argued that its renewed motion for judgment as a matter of law should have been granted with respect to the Plaintiff’s retaliation claim because the Plaintiff had failed to establish a prima facie case of retaliation or any evidence of a causal connection between his protected conduct and his termination.
The First Circuit rejected the Hospital’s argument that judgment as a matter of law should be granted for the Plaintiff’s failure to make out a prima facie case on the grounds that it was “not the correct focus at this juncture.” The McDonnell-Douglas framework that requires the plaintiff to prove a prima facie case before putting the burden of proof on the defendant “is not a religious rite” but “merely a sensible, orderly way to evaluate the evidence in light of common experience as it bears on the critical question of retaliation.” Once the question of retaliation has been submitted to the jury “backtracking serves no useful purpose.” The First Circuit therefore held that its correct focus on appeal was whether a jury reasonably could have inferred by a preponderance of the evidence that the Plaintiff was terminated because of his protected conduct.
The First Circuit went on to reject the Hospital’s argument that the Plaintiff had failed to establish the causal connection required to prove retaliation on the grounds that the evidence presented at trial was sufficient to support the finding, even if the determination was not “inevitable.” The Hospital’s argument hinged on the fact that Hospital decided to terminate the Plaintiff three weeks before the Plaintiff was deposed in his age discrimination case, claiming that the causal element of retaliation was therefore lacking in the Plaintiff’s claim. Although the Court agreed with the Hospital that an adverse employment action pre-dating the protected activity generally cannot support a retaliation claim, it found that the remainder of the evidence presented at trial supported the jury’s finding. Accordingly, the First Circuit affirmed the trial court’s decision.
Tags: Age Discrimination in Employment Act, Causal Connection, Judgment as a Matter of Law, McDonnell Douglas Framework, Prima Facie Case, retaliation
Posted in Employment Law/Cases, Industry News | No Comments »
Friday, August 27th, 2010
How can a simple age discrimination lawsuit involving 54 year-old Brian Reid, Google, and the term “old fuddy-duddy” possibly change the landscape of discrimination lawsuits “In Reid v. Google, California has apparently struck again.” Reid sued Google for allegedly firing him because of his age. “He claimed his co-workers called him an “old fuddy-duddy” in 2004.”
After a six-year legal battle with Google, the California Supreme Court ruled earlier this month that Reid”s lawsuit deserves to go to trial. “But more interesting, however, is that the court concluded he could base his claim on what his colleagues call “stray remarks.”
Reid says that, behind his back, coworkers called him “an old man,” “slow, “lethargic,” and “sluggish.” “He also claims coworkers said his compact disc cases should be labeled “LPs” instead of “CDs.”
Courts have traditionally held that such remarks cannot support discrimination complaints. In age discrimination cases, plaintiffs frequently support their claims with evidence of “comments and remarks by managers” or supervisors such as referring to, some employees as “old timers.” “But when, such comments are made by co-workers, who are not involved in the “decision to terminate the affected employee”, or in a context unrelated to the decision, courts brand them as mere “stray remarks” that are not “evidence, of discrimination.”
The California Supreme Court, however, held in Reid v. Google that such “stray remarks” cannot be “categorically dismissed from consideration.” Instead, the Court explained, that, although such remarks” may not, alone, be persuasive, they can support a discrimination claim when “combined” with other evidence.” When deciding whether to grant or deny summary judgment, courts must “analyze” the “totality” of circumstances”. ”
Courts do apply the “stray remarks” doctrine on a case-by-case basis, but the Court’s holding here elevates the role of such remarks to a level higher than mere fact-specific analysis. Indeed, when something cannot be “categorically” dismissed, it is forever in play.
The other evidence in this case is fairly intriguing. “Reid’s 38-year-old supervisor told him on several occasions that his ideas were “too old to matter.” ” Google had hired Reid in 2002 when he was 52.” A year later, his performance review said Reid “projected confidence when dealing with fast changing situations,” “had an excellent attitude,” was “very intelligent” and “a terrific problem solver,” and that he “consistently met expectations.” “The following year, Google fired Reid because he was allegedly “not a cultural fit.”
Google “culture” is, indeed, rather “unique.” Census data shows that, in the computer industry in Santa Clara County where Google is located, only nine percent of workers are 50 or older.”
Another interesting tidbit: Google fired Reid one year before Google went public, which cost Reid 131,917 stock options that would have been worth tens of millions of dollars.
Whatever the evidence, Reid v. Google should alert employers that, to protect themselves from liability, they must make all, reasonable efforts to eliminate all politically incorrect references from the office.
Tags: google reid, reid google, reid v. google
Posted in Employment Law/Cases | No Comments »
Tuesday, August 10th, 2010
The Massachusetts Supreme Judicial Court ruled, in a 4-to-3 decision yesterday, that women in Massachusetts who work full time for small businesses can get their jobs back after eight weeks of maternity leave, but the Massachusetts Maternity Leave Act does not protect them beyond that time.
“A female employee is only entitled to MMLA rights when she is absent from employment for no more than eight weeks,” Justice Francis X. Spina wrote for the Court.
The Court did state, however, that women who are promised longer maternity leaves by their employers “either through collective bargaining agreements or company policy” can sue for breach or contract if their employer later reneges and fires them. But they do not have any protection under state law (the Massachusetts Maternity Leave Act) after eight weeks.
In the case, Sandy Stephens, a housekeeper for the president of Global NAPs Inc., a small Quincy, MA telecommunications firm, claimed her supervisor told her that, if she gave birth by cesarean section, she could take unpaid maternity leave longer than eight weeks. Stephens ultimately gave birth by cesarean section and claimed that, when she called her supervisor and anticipated returning to work after around 11 weeks, she learned her employer had fired her.
Stephens sued and alleged that her employer and its president violated the Massachusetts Maternity Leave Act by firing her while she was on maternity leave. “She cited a guideline of the Massachusetts Commission against Discrimination, which enforces the law, that says employers should notify employees in writing if they do not plan to guarantee benefits beyond eight weeks.” The SJC found, however, that the guideline is merely advisory and does not have the force of law.
“Once a female employee is absent from employment for more than eight weeks, she is no longer within the purview of the [Massachusetts Maternity Leave Act] and, consequently, is not afforded the protections conferred by the statute,” “Justice Spina wrote for the majority.”
The decision affirmed how the law has generally been applied, and John J. Barter, a Boston lawyer who represented Global NAPs, praised the ruling as a victory for business interests.
The ruling is limited to women whose maternity leave falls under state law (typically those who work at smaller companies but with at least six employees). “Women who work for employers with 50 or more employees are covered by the federal Family and Medical Leave Act, which provides up to 12 weeks of unpaid leave and job protection.” The ruling does not affect the federal law.
This decision should put both employees and employers on notice. “On one hand, women should expect no more than eight weeks of maternity leave.” As Barter said, “[t]he court concluded that the law says eight weeks” and eight weeks means eight weeks “so the statute controls.” “On the other hand, the decision removes some liability from employers, but they should pay attention to Justice Margot Botsford’s words in her dissent.” Indeed, while employers who renege on promises to women of more than eight weeks of maternity leave may not have any liability under the Massachusetts Maternity Leave Act, they still should not use the law to employ a bait-and-switch with employees because they can, nevertheless, find themselves in court facing common law claims such breach of contract.
Tags: mass maternity leave, mass maternity leave act, massachusetts maternity leave, massachusetts maternity leave act, maternity leave mass, maternity leave massachusetts
Posted in Employment Law/Cases | No Comments »
Thursday, June 3rd, 2010
Employee class actions have increased the heat on national employers across all industries; just ask Novartis, Wal*Mart, Starbucks and Outback Steakhouse.?? Employee class actions can be expensive to defend against and harder to settle than single plaintiff litigation.?? In fact, the class action plaintiffs??? bar generally operates on a ???the bigger they are, the harder they fall??? model.?? For them, a class of sixty employees is just another case on the docket, but a class of sixty thousand can be national news, increasing public pressure on the employer to settle.
Case in point: a recent federal appeals court decision allowed a massive class action lawsuit to go forward against Wal*Mart, the nation???s largest private employer.?? On April 26, 2010, an eleven-judge panel of the Ninth Circuit ruled 6-5 that a class action alleging less favorable treatment of female employees filed on behalf of all women who worked at Wart*Mart from 1998 and the present could go forward.?? In 2001, at the time of filing, the named class was estimated to contain 1.5 million members.?? Wal*Mart unsuccessfully argued that such a lawsuit was inherently unmanageable, and is now considering an appeal to the Supreme Court.?? This is not an insolated incident for Wal-Mart, which in December 2008 alone settled 63 class actions for a total of $640 million.
Wal*Mart, of course, is not alone.?? A federal jury in Manhattan ruled on May 19, 2010 that Novartis Pharmaceuticals Corporation engaged in a pattern of discrimination against women from 2002 through 2007 and must pay $250 million in punitive damages.?? The jury found that Novartis discriminated against thousands of female sales representatives concerning pay, promotion, and pregnancy.?? The jury also awarded $3.3 million in compensatory damages to twelve women who testified in the class action suit.?? The compensatory award allows 5,588 other women to apply for compensatory damages, which will be determined on an individual basis.?? ??Obviously, the total payout could increase exponentially with the inclusion of the additional claims of the other class members.
Other recent cases point in a similar direction.?? In Chau v. Starbucks Corp., filed in California state court in 2004, the plaintiff class alleged that Starbucks violated California???s Labor Code by pooling tips left in tip jars and sharing those not just with baristas (part-time hourly employees), but also with shift supervisors (also part-time hourly employees), who spend 90 percent of their time performing barista tasks.?? The Plaintiffs alleged that this violated California Labor Code Cal. Labor Code ?? 351, which states that ???[n]o employer or agent shall collect, take, or receive any gratuity or a part thereof that is paid, given to, or left for an employee by a patron.???
The California superior court certified the class of current and former baristas, and after a bench trial, the trail judge found the tip pooling violated ?? 351 because the shift supervisors were ???agents??? of the employer.?? The class was awarded $86 million in damages.?? Recently, the California Court of Appeals overturned the multimillion dollar verdict, holding that under Starbucks??? team service concept, tips were left for the entire team of employees, including shift supervisors whom to customers were visually indistinguishable from baristas.?? Despite the ultimate victory in California, the original verdict led to copycat class-actions in Massachusetts and New York.?? Outcomes there may differ as the wage laws in the various states differ, but the threat of class action remains constant.
In EEOC v. Outback Steakhouse, filed in Colorado federal court in 2006, the Equal Employment Opportunity Commission acting on behalf of all female employees at company-owned restaurants, alleged that Outback denied women equal opportunities for advancement.?? Specifically, the EEOC alleged that Outback engaged in ???gender discrimination on a systemic scale??? by maintaining a glass ceiling that kept women from promotion to higher-level profit-sharing positions.
From the outset, this was a difficult case to defend for Outback, as a joint venture partner had stated that female employees had ???let him down??? and ???lost focus??? when they had children, and that he wanted ???the cute girls??? work in the front as servers.?? In December 2009, the court accepted a $19 million settlement between the parties, which also included a host of other requirements, such as hiring a ???Vice President of People??? (query exactly what that position entails).
No one ???cure-all??? exists for your business to avoid an employee class action suit.?? But creating a culture of best practices can help minimize risk: (1) develop written employment policies with your attorney and communicate them; (2) follow up with training like you mean it rather than holding mere ???one off??? trainings with little impact on employees, (3) develop a culture of respect and team work with a diversity action program that integrates a strategy through hiring, mentoring, promoting and monitoring, (4) make your cultural values specific and reviewable on a performance level with your managers and staff, (5) ensure your human resources department works closely with operations to develop, promote and enforce your culture and values, including legal compliance, (5) make the process of reporting of complaints clear and easy, and investigations of those complaints quick, thorough and confidential.?? While size matters for the plaintiff lawyers, culture can combat the risk of class actions and in the end give your company an edge in the market for talented workers.
Chris Vrountas, Chair of the Employment Counseling and Litigation Practice Group, contributed this posting.
Posted in Class Actions, Diversity, Employment Law/Cases, Industry News | No Comments »
Tuesday, May 18th, 2010
Despite a rise in workplace discrimination lawsuits, results remain the same: Angel David Morales-Vallellanes had slayed Goliath and had won a $500,000 jury verdict (later reduced to $300,000) in a Title VII discrimination case in which he alleged gender and retaliation discrimination by his former employer, John E. Potter (the United States Postmaster General).?? On appeal in Morales-Vallellanes v. Potter, however, Potter argued that Morales did not deserve any award because he failed to prove that he suffered any materially adverse employment action under Title VII.
Morales brought a workplace discrimination lawsuit and raised three main claims against Potter (all alleging Title VII discrimination):??(1) the USPS did not enforce its coffee and lunch break policy in an equal and nondiscriminatory matter because certain female employees were, at times, permitted to take longer breaks; (2) the USPS temporarily transferred Morales???s preferred duties and responsibilities to a female employee and assigned Morales to other duties in his job description; and (3) after Morales filed a complaint with the EEOC, the USPS changed the days off allotted for a certain Distribution and Window Clerk position when it was posted for bidding.??
The court examined this Title VII discrimination case and evaluated Morales???s claims and concluded that none of the alleged incidents rose to the level of an adverse employment decision, which is required to support a discrimination claim.?? Nor were any of Morales???s claims sufficient to dissuade a reasonable employee from filing or supporting a charge of discrimination, which is required to support a retaliation claim.?? The court explained that, ???even if two female employees were permitted to take longer breaks than Morales on account of their gender, such selective enforcement of the breaks policy had no material effect on Morales’s employment.????? The court recognized that being reassigned to disfavored duties may in some instances constitute discrimination or retaliation, but Morales???s temporary assignment to a duty that was part of his job description, and not any more or less prestigious or arduous than the other duties, did not rise to that level.?? Finally, the court found that the altering of a job posting for a job that Morales wanted (changing the rest days from Saturday and Sunday to Thursday and Sunday) was not ???a materially significant disadvantage??? that would dissuade a reasonable employee from bringing or supporting a claim of discrimination.
This case illustrates that, despite the rising number of workplace discrimination??lawsuits (including gender discrimination and retaliation cases such as this one), a court stills hold an employee and his/her allegations to the requirements of the law.?? As the court stated, ???work places are rarely idyllic retreats, and the mere fact that an employee is displeased by an employer???s act or omission does not elevate that act or omission to the level of a materially adverse employment action.????? Moreover, ???minor disruptions in the workplace, including ???petty slights, minor annoyances, and simple lack of good manners,??? fail to qualify??? as adverse employment actions.????Title VII??discrimination cases, indeed, are increasing, but the standards courts employ to adjudicate them remain consistently high.
Tags: gender discrimination case, retaliation case, title vii discrimination, workplace discrimination lawsuit
Posted in Employment Law/Cases | No Comments »
Wednesday, April 21st, 2010
A Muslim woman filed a discrimination complaint against the McDonald???s claiming that she was denied a job at a one of their Detroit restaurants because of her religion and ethnicity. The woman wears an Islamic head scarf known as a hijab as part of her religious customs. According to the Complainant, the McDonald???s manager with whom she interviewed asked her about her nationality and whether she had to wear the hijab, and proceeded to tell her that she would not be able to wear the hijab while she was working. Ultimately, McDonald???s hired someone else. This is not the first time that a Michigan McDonald???s has been under fire for discriminating against Muslim individuals. In July 2008, two Muslim women complained after a manager at a McDonald’s restaurant in Dearborn said they could not wear Islamic headscarves at work. Their attorney filed suit and he said today that the case may go to trial in a couple of months. McDonald???s director of operations responded that the restaurant strictly prohibits any form of discrimination. A McDonald???s representative said that the Company never intends to offend anyone and it requires its employees to comply with all applicable anti-discrimination laws.
For more information, see Nation’s Restaurant News.
Tags: Detroit, McDonald's, Muslim, Nation's Restaurant News, religion, religious discrimination
Posted in Diversity, Employment Law/Cases, Restaurant Liability | No Comments »
Friday, April 16th, 2010
The U.S. District Court, (M.D. Pennsylvania) held that in Title VII wage discrimination claim, under the Lilly Ledbetter Fair Pay Act, if plaintiff faculty member can demonstrate that her wages were the result of a discriminatory decision to pay her less than her male co-workers, she may recover for each paycheck received during the Title VII 300-day statute of limitations period and need not show that a discriminatory pay-setting decision occurred within the 300-day period. The court also holds, however, that the Fair Pay Act, which states that each paycheck paid pursuant to a discriminatory pay structure is an independent, actionable employment practice, precludes application of the continuing violation theory to support recovery by plaintiff of amounts attributable to discrimination represented in paychecks issued prior to the 300 day limitation period. The court also discusses application of the Discovery Rule and Equitable Tolling to extend the 300 day limitation period and the application of the Fair Pay Act to Plaintiff???s Title IX, Sec. 1983 and 1985 claims.
See: Summy-Long v. Pennsylvania State University et al.
Tags: discrimination, Diversity, Fair Pay Act, gender discrimination, Lilly Ledbetter, Lilly Ledbetter Fair Pay Act, Penn STate, Penn State University, Pennsylvania State University, Title IX, Title VII
Posted in Diversity, Employment Law/Cases | No Comments »
Monday, February 22nd, 2010
No Rights if not ???qualified??? under the ADA.
A restaurant manager who claimed her employer fired her expressly because she was disabled, without trying to find an accommodation for her, saw her claim dismissed because she could not prove she was a ???qualified person with a disability??? and because she could not provide the court with any ???reasonable accommodation??? that would have been effective, says the First Circuit Court of Appeals. The fired manager argued that although she could not use her right arm for anything beyond holding a menu, she could still do her job by assigning physical tasks to other workers who were primarily responsible for those tasks. The Court disagreed, however, as the undisputed record showed that an ???essential function??? of the manager???s job involved ???filling in??? where needed in all aspects of restaurant work, including cooking, cleaning and serving, and that the manager who could not fill in for those tasks when needed was not a ???qualified person with a disability.??? While the manager argued that her ???primary??? duty was ???managing,??? the Court rejected that theory because the ADA does not concern itself with ???primary??? duties but ???essential??? duties.
NKMS has a particularly close perspective on this case as this firm represented the defendant, Friendly Ice Cream Corporation, and won at summary judgment at the U.S. District Court level and later again on appeal at the First Circuit Court of Appeals. The members of the firm have long ties to the hospitality industry, which is the primary reason why the firm developed its Food and Hospitality Practice Group to work closely with its Employment Counseling and Litigation Practice Group. This win required knowledge of both the relevant employment law and the practicalities of the restaurant business.
For example, the plaintiff wanted to convince the Court that managers simply ???manage??? rather than perform physical labor, but the District Court and the First Circuit listened to the reason and experience in Friendly???s argument, as well as the undisputed facts, which showed how a restaurant manager cannot manage just from the sidelines, and how ???filling in??? on the spot at the grill or as the dishwasher cannot be delegated any more than infielders in baseball can delegate catching one or two ground balls that might shoot at them in any two and half hour game. Managing involves more than just wearing the uniform. It requires performance just in time. At the end of the day, the First Circuit Court of Appeals understood that and ruled in favor of Friendly???s.
This was an important win for Friendly???s and indeed for the restaurant industry. Restaurants like Friendly???s are challenging, but rewarding, places to work. They offer opportunities to advance, more than other industries, for all motivated people regardless of race, sex, education, religion or class. With nothing more than wit, honesty and willingness to work hard, anyone can advance and succeed in this business without the need for contacts, pedigrees or other barriers to market entry. A bad court decision that could have rewarded excuses and gamesmanship over teamwork and performance would have been a difficult millstone for the restaurant and the industry. In the end, managers can work as hard if not harder than those they manage and cannot expect their staff to do what they say but not as they do. The Court???s ruling, while important to employment law and to the restaurant industry, should not be a surprise as, according to one observer, it ???makes perfect sense.???
The lawyers on the NKMS defense team for this case included Allison Ayer, Stephen Coppolo and Chris Vrountas. Congratulations to them and to Friendly???s for a well deserved win.
Tags: Disability, Disabled Worker, First Circuit Court of Appeals, Friendly Ice Cream Corporation, Restaurant Management
Posted in Employment Law/Cases, Industry News, Restaurant Liability | No Comments »
Sunday, February 14th, 2010
Recently, a Foxwoods union vote resulted in 75% of workers favoring unionization of the workplace.?? For those who think unions cannot take hold in the hospitality industry, think again.?? The Foxwoods Resort now must deal with the UAW.?? Why do workers vote to unionize??? Click here to find out.?? Read the worker testimonials about why a Foxwoods-union partnership is now a reality.?? Hardly any testimonial??mentions pay.?? Instead, they discuss, for the most part, having “a voice,” ensuring “fairness,” and what they viewed as the arbitrary and unfair manner in which management appeared to run the establishment.
The lesson??? In the end, we get what we pay for.?? Employers who do not invest in their employees will more likely find that a union will do it for them.?? As manufacturing jobs continue to leave this country, unions will follow the workers to whereever they relocate.?? The restaurant and hospitality industry is not immune.?? If you want to avoid the Foxwoods-union route, invest in your employees.
Chris Vrountas, Chair of the Employment Counseling and Litigation Group, contributed this posting.
Tags: Foxwoods union
Posted in Employment Law/Cases, Industry News, Restaurant Liability | No Comments »
Sunday, February 7th, 2010
Usually, the answer is yes, says Lewis Maltby in his new book entitled, “Can They Do That” which was recently featured on National Public Radio. Like most employment lawyers, Maltby says he has received numerous calls from friends and clients literally asking, “Can they do that?” as they refer to an unpopular action taken by their employer. Bottom line, in the “at will” world in which we leave, chances are the answer is “yes.” An employer can discharge a worker for any reason or for no reason at all, unless there is an employment contract stating to the contrary. There are few exceptions to the “at will” doctrine, although the law varies amongst the several states. Typically, the only exceptions to the “at will” doctrine are statutory (such as the anti-discrimination laws, whistleblower protection laws, or other anti-retaliation statutes) or limited common law exceptions (including the “public policy” exception to the “at-will” doctrine which prohibits employers from taking action against employees for doing what public policy would encourage or refusing to do what public policy would discourage). Most of the slings and arrows of outrageous fortune that employees face in the workplace do not fall within these exceptions.
In other words, it’s a free country, and if you don’t like your job, you can leave any time you want. But that freedom for the most part is mutual, and if your employer at any time just gets sick of looking at you, there’s little law to stop that from happening.
That said, every state is different. In the allegedly conservative State of New Hampshire, the jury, not the judge, defines what constitutes a “public policy” that could form an exception to the “at will” doctrine. That approach makes it very difficult for employers to have public policy wrongful discharge cases dismissed before trial, and once something is in front of a jury, anything can happen. Indeed, the seminal case in New Hampshire, Monge v. Beebe Rubber Co., 114 NH 130, suggests that the “public policy” exception amounts to another way of describing “bad faith” employment termination, and further explained that “a termination by the employer of a contract of employment-at-will which is motivated by bad faith or malice or based on retaliation is not in the best interest of the economic system or the public good and constitutes a breach of the employment contract.” Monge v. Beebe Rubber Co., 114 NH 130 (1974).
By contrast, the allegedly liberal Commonwealth of Massachusetts has through its judicial opinions identified a very limited set of matters that could be considered of the sort implicated a “public policy.” See Wright v. Shriners Hospital, 412 Mass. 469 (1992). The failure of a discharged employee to assert circumstances falling within such matters would likely lead to summary dismissal, either at summary judgment or even earlier, leaving the employee with little legal recourse.
As we have noted recently in this blog when reporting a recent federal court decision out of New Hampshire, not every act of unkindness constitutes a “public policy” violation, although where to draw the line in some states may well be in the eye of the beholder. As for statutory claims, the federal courts have frequently noted that the anti-discrimination laws are not a “code of ettiquette” and that only “severe and pervasive conduct” that creates a “hostile work environment” can create liability for employers. Even then, not all “hostile work environments” are unlawful. Only those environments that are hostile as a result of unlawfully discriminatory practices are unlawful. A mean boss, who may be hostile, does not necessarily create an unlawfully hostile environment.
So what? While the deck may appear stacked against the employee, the law does allow for enough ambiguity to create messy litigation for employers who engage in what may appear to be unfair acts, even if such acts may not be unlawful. The best approach for employers is to focus on the business, make decisions based on objective criteria, and remember TCD: i.e. timing, consistency and documentation. For any employment decision, employers should take action soon after the event that gives rise to the need to take action (i.e. avoid discrimination claims by disciplining immediately and not waiting until after, by some bad luck, the employee tells you he needs leave or an accommodation), treat all employees consistently (consider a progressive discipline policy for all managers to follow so that employees at all areas in the company receive at least similar treatment), and document decisions and their bases well (make a record that reflects the legitimate basis for decisions as juries and judges believe paper more than memories). That way, employers can go a long way towards protecting themselves from a wrongful discharge claim.
Meanwhile, employees should be advised that, while there always may be legal weapons for the opportunistic, the legal landscape in the end does not seek to or even purport to address all ills in the workplace.
Chris Vrountas, Chair of the Employment Counseling and Litigation Group, contributed this posting.
Tags: at will doctrine, bad faith, book, Can They Do That?, discrimination, Lewis Maltby, National Public Radio, NPR, public policy, reading, termination, whistleblower protection
Posted in Diversity, Employment Law/Cases, Employment Law/Legislation, Industry News | No Comments »
Sunday, January 24th, 2010
Regardless of who you believe, it is a sordid story that may lead to a tremendous liability for Starbucks, not to mention embarrassment for everybody involved. A teenaged “barista” has alleged that her 24 year old manager sexually harassed her on a regular basis and used his position to obtain sexual favors from her. The company claims that the two concealed a consensual relationship. The manager claimed he never know the employee was only 16 and pleaded guilty to statutory rape charges and served 4 months in jail. The teenagers parents seek to impose responsibility for these events upon the company.
Whether Starbucks has a valid legal defense or not, this should not have happened. Bottom line: an employer should not only have a policy against harassment, it should also have and enforce a non-fraternization policy between managers and line-workers. And rules are not enough. An employer should conduct training as part of the hiring and promotion process, and that training should be refreshed on a regular basis. A professional human resources department can also serve as a trouble shooter, helping operations work in a way that can avoid liability and working towards ensuring that employees feel comfortable in their environments by being visible and available. At the end of the day, a strong work culture based on respect and team work will do more than policies printed on forgotten paper.
The demographics in this case also demonstrate an important point. Here, a teenager has brought a complaint concerning her 24 year old manager. Frequently, sexual harassment claims, especially in the restaurant context, arise when young and inexperienced people with authority fail to manage their authority in a responsible manner. In other words, they’re not yet grown ups and they act like kids, and they’re surprised at the consequences. Yes, rules and their enforcement are important, but training, training, training, will actually better serve an employer and its employees. Having a strong corporate purpose, a strong corporate culture, and a solid corporate infrastructure capable of delivering training, mentoring and troubleshooting can help employers avoid the sordid stories on prime time and keep your employees looking at the bottom line.
Chris Vrountas, Chair of the Employment Counseling and Litigation Practice Group, contributed this posting.
Tags: harassment, harassment liability, harassment policy, human resources, Restaurant Management, sexual consent, sexual harassment, Starbucks
Posted in Employment Law/Cases, Health & Safety, Industry News, Restaurant Liability | No Comments »
Tuesday, January 19th, 2010
For those of you looking to avoid, or obtain, federal diversity jurisdiction on any claim you may be litigating, remember that the federal court will consider the amount in controversy to include the full amount of any claimed double or treble damages under any unfair trade practices claim brought in the complaint. See how Judge DeClerico explained his recent decision here.
Chris Vrountas
Tags: damages, Diversity, diversity jurisdiction, Judge DeClerico
Posted in Diversity, Employment Law/Cases, Industry News | No Comments »
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