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Giving Employee the ‘Milton Treatment’ Leads to Discrimination Claim

And I said, I don’t care if they lay me off either, because I told, I told Bill that if they move my desk one more time, then, then I’m, I’m quitting … I’m going to quit. And, and I told Dom too, because they’ve moved my desk … four times already this year, and I used to be over by the window, and I could see … the squirrels, and they were merry, but then, they switched … from the Swingline to the Boston stapler, but I kept my Swingline stapler because it didn’t bind up as much … and I kept the staples for the Swingline stapler and it’s not okay because if they take my stapler then I’ll have to … I’ll set the building on fire… – Milton Waddams, Office Space

I love the movie Office Space. One of the movie’s best sub-plots involves Milton Waddams. Milton works for Bill Lumbergh, and is Lumbergh’s punching bag. Lumbergh belittles him, steals his red Swingline stapler, continuously reduces the size of his cube, and, ultimately, transfers him to a basement storage closet. All the while, Milton mumbles under his breath that he’s going to set the building on fire. True to his word, Milton ultimately gets his revenge by burning down the office.

Why am I telling you the plot of Office Space? Because, according to this story in the St. Joseph, Missouri, News-Press, a former employee of the Missouri Department of Transportation is alleging that the department discriminated against her because of her age by … are you ready … moving her out of her office and forcing her to work from a moldy storage closet.

While there are two sides to every story, generally it is a bad idea to react to an employee’s internal complaint about age discrimination by moving her workspace from an office to a storage closet. Milton earned his revenge by arson. This employee is seeking hers via the courts. Either way, giving any employee the Milton treatment, let alone doing so on the heels of a complaint about discrimination or some other protected activity, is a horrendous idea.

Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

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20-Year Sales Veteran Joins Human Capital Media as Eastern Advertising Manager

PRESS RELEASE
For Immediate Release

20-Year Sales Veteran Joins Human Capital Media as Eastern Advertising Manager

Chicago, July 22, 2013 — Laurel Metz has joined the Human Capital Media (HCM) sales team as eastern advertising manager.

Metz, who has more than 20 years of media sales experience, previously worked for Summit Business Media as eastern account manager.

In her new role, Metz will be responsible for generating revenue and providing customer care for all clients within the eastern territory for HCM publications, including Chief Learning Officer, Talent Management and Diversity Executive magazines as well as all related media including websites, sponsored newsletters, pay-per-lead programs and webinars.

 “I am truly delighted to have Laurel on the HCM sales team,” said Cliff Capone, associate publisher. “Her experience is a perfect fit and I am confident that Laurel will play a pivotal role in helping to take our business to the next level.”

For more information on Human Capital Media, please visit www.humancapitalmedia.com

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About MediaTec Publishing Inc.

MediaTec Publishing Inc. is a leading integrated media company serving the human capital, management and workforce development industries. MediaTec publishes Chief Learning Officer, Diversity Executive, Talent Management and Workforce magazinesand operates the online industry resource HumanCapitalMedia.com. MediaTec leverages its award-winning editorial content with innovative integrated media products, including targeted e-newsletters, webinars, interactive websites, special print and online supplements, resource guides, industry research and conferences that bring together international audiences to network and discuss leading-edge strategy and best practices in the industry. MediaTec partners with recognized industry experts and provides thought-provoking feature articles, news, opinions and insights through its award-winning publications, events and e-media. Each MediaTec product gives readers the business intelligence and knowledge they need to succeed in new and changing markets.

Contact:
Taylar Ramsey
Marketing Coordinator
MediaTec Publishing Inc.
(312) 676-9900 ext. 208
tramsey@humancapitalmedia.com

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The One Thing You Can Never Release In a Settlement Agreement

Legal disputes end in one of two ways—either with a judgment by a court or an agreement between the parties. The vast majority of cases follow the latter course.

When parties enter an agreement to settle a dispute—either in a settlement agreement ending litigation or a severance agreement ending one’s employment—the goal is to release all claims brought, or that could have been brought. An employer is paying the employee, in part, for the certainty that the employee will not file other claims against it in the future for past acts. Thus, these agreements typically contain general releases, along with covenants not to sue.

Do not, however, make the mistake of including in your agreement a covenant forbidding the employee from filing a discrimination charge with the Equal Employment Opportunity Commission or other agency. The EEOC will view such a provision as retaliatory under Title VII.

Last week, the Agency announced that it had reached a settlement with Baker & Taylor over claims that the company “violated Title VII by conditioning employees’ receipt of severance pay on an overly broad, misleading and unenforceable severance agreement that interfered with employees’ rights to file charges and communicate with the EEOC.” The EEOC alleged that the company required employees “to sign a release agreement that could have been understood to bar the filing of charges with the EEOC and to limit communication with the agency” in order to receive their severance pay.

The offending provisions (taken from the EEOC’s Complaint) were as follows:

  • “I further agree never to institute any complaint, proceeding, grievance, or action of any kind at law, in equity, or otherwise in any court of the United States or in any state, or in any administrative agency of the United States or any state, country, or municipality, or before any other tribunal, public or private, against the Company arising from or relating to my employment with or my termination of employment from the Company, the Severance Pay Plan, and/or any other occurrences up to and including the date of this Waiver and Release, other than for nonpayment of the above-described Severance Pay Plan.”
  • “I agree that I will not make any disparaging remarks or take any other action that could reasonably be anticipated to damage the reputation and goodwill of Company or negatively reflect on Company. I will not discuss or comment upon the termination of my employment in any way that would reflect negatively on the Company. However, nothing in this Release will prevent me from truthfully responding to a subpoena or otherwise complying with a government investigation.”
How could this problem have been avoided, while still providing the employer relative certainty that it will not have future legal dealings with the releasing employee? A simple disclaimer tacked onto the back-end of the release language, stating that nothing in agreement prevents, or is intended to prevent, the employee from filing a charge of discrimination with the EEOC, or with a state or local civil rights agency. You can couple that language with a covenant providing that in the event that the employee files such a charge, the employee disclaims the right to seek or recover money damages from such a filing.

With this language, the employee retains the right to file a charge (minus damages), the EEOC retains the right to seek redress of civil rights violations, and the employer retains peace of mind that the employee has signed as strong of a release as Title VII allows.

Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

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Luke Promoted to Advertising Director of Workforce Magazine

PRESS RELEASE
For Immediate Release

Luke Promoted to Advertising Director of Workforce Magazine

Chicago, July 15, 2013 — MediaTec Publishing has announced it has promotedChris Luke from eastern advertising manager of its Human Capital Media Group to advertising director of Workforce. Luke’s expertise is backed by more than 25 years of experience in consumer and business media. Prior to joining MediaTec, Luke was with Summit Business Media, where he rose from advertising sales executive to group publisher.

In his new role Luke will be responsible for the maximizing of business growth within the Workforce stable of media and live events. “Chris has a proven track record of success and will do an amazing job in his new role with Workforce,” said John R. Taggart, executive vice president and group publisher of MediaTec Publishing.

“I am extremely excited to join Workforce as their advertising sales director. I see a tremendous amount of opportunity to build on the value we bring to advertisers in print, online and through our custom products,” Luke said.

For more information on Workforce magazine, please visit www.workforce.com

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About MediaTec Publishing Inc.

MediaTec Publishing Inc. is a leading integrated media company serving the human capital, management and workforce development industries. MediaTec publishes Chief Learning Officer, Diversity Executive, Talent Management and Workforce magazinesand operates the online industry resource HumanCapitalMedia.com. MediaTec leverages its award-winning editorial content with innovative integrated media products, including targeted e-newsletters, webinars, interactive websites, special print and online supplements, resource guides, industry research and conferences that bring together international audiences to network and discuss leading-edge strategy and best practices in the industry. MediaTec partners with recognized industry experts and provides thought-provoking feature articles, news, opinions and insights through its award-winning publications, events and e-media. Each MediaTec product gives readers the business intelligence and knowledge they need to succeed in new and changing markets.

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What Are Some Best Practices for Rewriting Job Descriptions?

Dear New Definitions:

Many healthcare organizations are in the same boat. New roles are being created to meet the emerging needs of the changing healthcare industry as traditional roles are also rapidly changing. For example, we’re finding that many hospitals are hiring for a CMO role, which was practically unheard of just a few years ago. Clearly, your organization is not alone in rewriting job descriptions as the industry charts new waters. Your existing job descriptions probably do not reflect current company strategy so you may, in fact, be hiring based on outdated or even obsolete job descriptions.

And that can form the basis for how you communicate this initiative to your employees without causing undue alarm. Consider positioning this effort as part of a continual improvement project: a yearly review and update of selected job-family descriptions to keep them fresh as a way to attract the best and most qualified candidates.

On the other hand, you may be pleasantly surprised to learn that just as many employees welcome these changes rather than find them alarming. If your charter is to grow and/or make your business more efficient and profitable, you have to hire the right kind of talent. Accurate, engaging job descriptions are the foundation for hiring and managing the type of great talent that can make that happen. And your employees will appreciate working alongside colleagues who are competent, a good fit with the job and your organization. Well-written job descriptions can help you accomplish that.

As far as getting started, begin by creating a template so each description has the same format. Include specific sections to be completed such as job summary, responsibilities, qualifications, education and/or experience needed, travel requirements, level of decision making, level of managerial experience required. These last two areas are not typically included in most job descriptions but, when combined with the other information, will give a clearer picture. View a sample template here.

Then, gather specific feedback from people who are currently doing that particular job to ensure the job descriptions accurately reflects that position. Also seek input from managers who will be evaluating the position to make sure the requirements accurately reflect what they expect from the job. Oftentimes, there is a disconnect between the actual duties and the manager’s expectations of the role so now is the best time to align them so the role and accountabilities are in sync.

Updating and rewriting job descriptions can be time-consuming and cumbersome, but with advancements in cloud technology, streamlining the process (using, for example, Google Docs, a free Web-based document-management platform) is extremely beneficial. Follow a few simple steps:

  1. Upload current job descriptions stored in word or PDF documents to a Google Docs folder. Set the system to auto convert each to a Google Doc format.
  2. Share each job descriptions with the appropriate incumbent in the role and ask that person to review and edit for current relevancy
  3. Share each job descriptions with the appropriate supervisor to the role and ask that person to review and edit for current relevancy
  4. You now have legally compliant and updated job descriptions that are living documents you can access and update anytime as the roles and requirement change or annually if in growth mode.
  5. Optional: Conduct a conference call with the supervisor and incumbent in each role once steps 1-3 are done and review the final revised job descriptions with them to determine if there are any additional revisions needed or things to add based upon your expert input and questions.

A review of the completed templates to ensure well-defined and relevant information has been entered into each of the sections is the best evaluation of effectiveness and completion. Taking these steps will provide an effective job description that sets clear expectations and a shared understanding of the role for use in filling open positions, as well as employee development.

Source: Gayle A. Norton, talentRISE LLC, Chicago, June 15, 2013

The information contained in this article is intended to provide useful information on the topic covered, but should not be construed as legal advice or a legal opinion. Also remember that state laws may differ from the federal law.

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Why Paula Deen Loves Gay Marriage

Lost amid the news of salacious allegations of workplace misconduct, historically bad depositions, a food empire going down in flames, and the meaning of the N-word in 2013 American society is the fact that the employee suing Paula Deen and accusing her of racial harassment is White.

The fact a White employee is complaining about harassment against African-Americans, in and of itself, does not bar the plaintiff’s harassment claim. As the 6th Circuit held in Barrett v. Whirlpool Corp., a White employee can bring a lawsuit asserting racial harassment against an African-American co-worker, but only if the employee claiming the harassment was also discriminated against because of his or her race. In other words, it’s not enough for the plaintiff in the Paula Deen case to show that Deen created a racially hostile work environment in her restaurant. She must also prove that Deen discriminated against her because of her race (White).

Last week, Deen’s lawyers supplemented an earlier-filed motion seeking the dismissal of, among other claims, the racial harassment claim. They claim that the plaintiff cannot seek the protections of Title VII because she is not claiming that she was discriminated against, but merely that a racially hostile work environment existed targeting other races.

In support of this argument, Deen cites Hollingsworth v. Perry, the recent U.S. Supreme Court case that dismissed, on the basis of a lack of standing, the challenge to the illegality of California’s gay marriage ban. Deen claims that per Hollingsworth, the plaintiff lacks standing to claim racial harassment. Per Hollingsworth:

Article III of the Constitution confines the judicial power of federal courts to deciding actual “Cases” or “Controversies.” One essential aspect of this requirement is that any person invoking the power of a federal court must demonstrate standing to do so. This requires the litigant to prove that he has suffered a concrete and particularized injury that is fairly traceable to the challenged conduct, and is likely to be redressed by a favorable judicial decision…. In other words, for a federal court to have authority under the Constitution to settle a dispute, the party before it must seek a remedy for a personal and tangible harm. “The presence of a disagreement, however sharp and acrimonious it may be, is insufficient by itself to meet Art. III’s requirements.”

In other words, Deen argues that a White employee lacks standing to claim racial harassment against her African-American co-workers because she is not seeking a remedy for a harm personally against her.

Regardless of how the court decides this issue, employers should not use the standing issue as carte blanche to ignore certain harassment complaints. When an employer handles a harassment complaint, the race, gender, religion, national origin, etc. of the employee complaining should not matter. An employer should still investigate and take prompt and appropriate remedial measures to ensure that any harassment that occurred ceases.

The Constitutional argument raised by Deen’s legal team is a nice weapon to have once you are in the thick of litigation, but following my practical tip will help keep you out of litigation in the first place.

Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

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A Reminder About Holiday Pay

wage-and-hour

The July 4 holiday is a paid day off for many American workers. I previously wrote a post titled, “8 things you need to know about holiday pay.”

In light of the holiday, I thought it was a good idea to revisit that list.

1. Do you have to pay for holidays? You are not required to pay non-exempt employees for holidays. Paid holidays is a discretionary benefit left entirely up to you. Exempt employees present a different challenge. The Fair Labor Standards Act does not permit employers to dock the salary of an exempt employee for holidays. You can make a holiday unpaid for exempt employees, but it will jeopardize their exempt status, at least for that week.

2. What happens if holiday falls on an employee’s regularly scheduled day off, or when the business is closed? While not required, many employers give an employee the option of taking off another day if a holiday falls on an employee’s regular day off. This often happens when employees work compressed schedules (four 10-hour days as compared to five 8-hour days). Similarly, many employers observe a holiday on the preceding Friday or the following Monday when a holiday falls on a Saturday or Sunday when the employer is not ordinarily open.

3. If we choose to pay non-exempt employees for holidays, can we require that they serve some introductory period to qualify? It is entirely up to your company’s policy whether non-exempt employees qualify for holiday pay immediately upon hire, or after serving some introductory period. Similarly, an employer can choose only to provide holiday pay to full-time employees, but not part-time or temporary employees.

4. Can we require employees to work on holidays? Because holiday closings are a discretionary benefit, you can require that employees work on a holiday. In fact, the operational needs of some businesses will require that some employees work on holidays (hospitals, for example).

5. Can we place conditions on the receipt of holiday pay? Yes. For example, some employers are concerned that employees will combine a paid holiday with other paid time off to create extended vacations. To guard again this situation, some companies require employees to work the day before and after a paid holiday to be eligible to receive holiday pay.

6. How do paid holidays interact with the overtime rules for non-exempt employees? If an employer provides paid holidays, it does not have to count the paid hours as hours worked for purposes of determining whether an employee is entitled to overtime compensation. Also, an employer does not have to pay any overtime or other premium rates for holidays (although some choose to do so).

7. Do you have to provide holiday pay for employees on the Family and Medical Leave Act leave? You have to treat FMLA leaves of absence the same as other non-FMLA leaves. Thus, you only have to pay an employee for holidays during an unpaid FMLA leave if you have a policy of providing holiday pay for employees on other types of unpaid leaves. Similarly, if an employee reduces his or her work schedule for intermittent FMLA leave, you may proportionately reduce any holiday pay (as long as you treat other non-FMLA leaves the same).

8. If an employee takes a day off as a religious accommodation, does it have to be paid? An employer must reasonably accommodate an employee whose sincerely held religious belief, practice, or observance conflicts with a work requirement, unless doing so would pose an undue hardship. One example of a reasonable accommodation is unpaid time off for a religious holiday or observance. Another is allowing an employee to use a vacation day for the observance.

Here comes the disclaimers. The laws of your state might be different. If you are considering adopting or changing a holiday pay policy in your organization, or have questions about how your employees are being paid for holidays and other days off, it is wise to consult with counsel. Also, these 8 tips assume that your company lacks a collective bargaining agreement.

Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.

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The FMLA, the ADA and No-Fault Attendance Policies

A no-fault attendance policy assigns points each time an employee is absent, with corresponding levels of progressive discipline automatically imposed at certain point levels. Employers like these policies because they simplify attendance issues. These policies, however, carry, a certain degree of risk—namely in the handling of absences protected by the Family and Medical Leave Act or the Americans with Disabilities Act. If the FMLA or ADA protects an employee’s absence from work, an employer would violate the statute by counting the absence as part of a no-fault attendance policy.

Employers have a lot to gain from no-fault attendance policies, both in ease of personnel management and certainty in attendance calculations. In deciding whether to adopt or continue a no-fault attendance policy, however, employers must carefully balance those benefits against the risk of FMLA or ADA violations. Moreover, with a no-fault attendance policy in place, employers must be careful to train those responsible for administering the policy with the exceptions required by the FMLA and ADA for protected absences.

Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

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Title VII Does Not Give Employees the Right to Proselytize

I believe that everyone’s relationship with God (whether you call that deity Yahweh, Jesus, Allah, Vishnu, Buddha, or something else) is personal. I have no opinion on your spiritual relationship, as should you have none on mine. Thus, I get mad whenever someone tries to shove their religious beliefs down my throat. Not only do I not care, but I can guarantee that you will not change my mind. Proselytism is one small step removed from fanaticism, and rarely, if ever, has anything good come from religious fanaticism.

I share the above as prologue to today’s discussion, which centers on Hall v. Tift County Hosp. (M.D. Ga. 6/10/13). In that case, the court rejected an employee’s religious discrimination case stemming from discipline for sending a Christian-themed email sent to a gay co-worker.

Pamela Hall, a Baptist, learned that one of the her co-workers, Amanda Dix, was a lesbian. Believing that she had a duty to save Dix from the “sin” of “homosexuality,” Hall placed a pamphlet, entitled, “How Should Christians Respond to ‘Gay’ Marriage?” in Dix’s locker. Rightfully concerned that Dix would ignore the pamphlet, Hall sent her a follow-up email, which said in part:

I saw that book in Kentucky when we went to the creation museum. I don’t want to hurt your feelings but I felt led to leave that for you and I would not be a true friend if I ignore the responsibility that God has left for his children to share the message and hold each other accountable…. Sodomy is a sin, gay people live in sin. It is not about self gratification…. When we are in God’s will we will WANT to live right and live for him and do what the Bible says and that is to go and tell! Everything else is not important…. There is only one way to heaven.

Dix complained to management, which investigated and demoted Hall from her supervisory position. In her lawsuit, Hall alleged that when the HR Administrator communicated the demotion, she said, “We could not share our faith at work. We could not talk about Jesus at work.”

Hall claimed that discipline for discussing religion at work discriminated against her because of her religion. In dismissing Hall’s case, the court disagreed.

Other employees have been disciplined for sending offensive or harassing emails. Two employees were terminated in April of 2009 for distribution of racial, ethnic, and religious materials in the form of an email that was offensive to other employees. The email makes specific reference to Islam, blacks, black Muslims, and Hispanics….

The question is whether Plaintiff was discriminated against because of her religion — was she discriminated against because she is a Christian? Without producing evidence of a non-Christian employee in the same job being treated differently after engaging in the same activity, Plaintiff cannot establish a prima facie case.

As I’ve said before, religious proselytization does not belong in the workplace. If you permit one employee to share his or her religious views in the workplace, you will have a difficult time disciplining or terminating another for the same reason. Employers and their employees should keep religion where it belongs—in the home and in places of worship.

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How Should We Conduct a Cross-Training Session?

Dear Don’t Want Hurt Feelings:

Your question echoes a familiar theme, but with an interesting and particularly useful twist: focusing on how cross-training affects the engagement of those sharing their established skills, rather than only on those acquiring new skills.

Cross-training is a constructive activity that we encourage you to pursue, in spite of your concern. In addition to the undeniable benefit of helping people acquire new skills, cross-training produces a host of other dividends for workers and employers alike, not to mention customers.

A crucial first step is to think of cross-training as “skill sharing,” and to talk about it in those terms. Be careful about entirely replacing the more traditional term with what might be seen suspiciously as jargon or “code speak.” Be clear with everyone that cross-training really is the process of sharing skills and abilities across a greater span in the organization.

Next, if this endeavor is to be successful, the sharing has to be multi-directional. For the sake of discussion, suppose we have two groups, A and B. Group A is being asked to cross-train Group B, and that’s the extent of it. As your question recognizes, Group A will naturally begin to ask if this is a reflection on their performance, and also will wonder what’s in it for them if they give up something that distinguishes them in the workplace.

It may seem blindingly obvious, but if cross-training indeed is not a reflection on people’s performance, then say so out loud and for all to hear. Make your communication clear, early and transparent to avert misunderstanding.

But the very heart of this issue is to eliminate the “us vs. them” aspect of cross-training. Do this by making sure everyone gains something in the exchange of skills and knowledge. Design the process so that the members of both Groups A and Group B acquire new skills and increase their value in the organization. Then, communicate precisely how all employees benefit by focusing on the following:

  • Being asked to share skills reflects the organization’s confidence in your performance, than on doubts about it
  • Being trained in a variety of tasks, skills, and functions enhances job security. People who fill multiple slots are less vulnerable to staff cutbacks than those with limited skills
  • Having a widely cross-trained workforce makes it easier for managers to approve requests for vacation and other time off
  • Cross-trained workers fill a variety of needs report, which results in greater fulfillment, job satisfaction and higher engagement
  • Perhaps an even greater benefit than acquiring new skills is gaining a new perspective. Cross-training gives workers a needed sense of the interdependency of the various functions within the organization. It breaks down the “silos” that exist, even in small parts of an organization. This in turn puts people in closer contact with the meaning of their work and the source of their paycheck.

Finally, remember that a person’s natural talent in one area doesn’t guarantee a similar knack for everything else. Just as you hire for job fit, cross-train with an eye to that as well. Don’t force it.

SOURCE: Richard Hadden and Bill Catlette, Contented Cows

The information contained in this article is intended to provide useful information on the topic covered, but should not be construed as legal advice or a legal opinion. Also remember that state laws may differ from the federal law.