New year, same old employers earning themselves nominations for my annual race to the bottom.
Darryl Robinson, the only African-American employee in his Marriott Vacations Worldwide office, claims he was subjected to repeated racial harassment during his 11 months of employment.
Robinson alleges that a director of sales repeatedly asked him to dance to music by Michael Jackson during sales meetings.
While complimenting his staff, the director of sales said, “Daryl looks ready to breakdance.”
Robinson claims that the company did not provide him a cubicle like every other sales rep, but instead required him to work out of a cramped storage closet without air conditioning.
Robinson suggested that there was no need for him to a take part in team building exercise involving employees’ baby photos, since he was the only African-American in the office. A colleague told him that if he opted out, she’d just use a photo of Buckwheat. True to her word, she inserted a Buckwheat photo and asked the team: “Who do you guys think this is?”
For its part, Marriott Vacations Worldwide provided a solid “no comment.”
2019 is off to a rousing start. Do you have an employer to nominate as this year’s Worst Employer? Email me at jhyman@meyersroman.com, or drop a comment below.
The day has finally arrived. It’s time to announce the Worst Employer of 2018.
To remind you, we had four finalists in contention for this … (dis)honor:
The Murdering Manager — company owner hires two men to rough-up a handyman who was not doing his job, and they accidentally kill him.
The Sexist, Racist, Xenophobic, Oh My! — plant manager calls foreign-born employees “terrorists” and women “bitches,” and tells the only black employee that her husband should work in a cotton field with a rope around his neck.
The Supervisor Supremacist — supervisor begins morning staff meetings by saying “White Power” and giving the Nazi salute; when African-American employee complains, he finds himself hanged in effigy.
The Tasering Torturer — company owner disciplines employee by threatening to kill him, lighting fires near him, and repeatedly shocking him with a taser.
The final vote wasn’t close. The winner tallied an astounding 62% of all first place votes.
The Worst Employer of 2018 is…
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The Murdering Manager
I love it when a local boy makes good. This story came from my own backyard, right here in Northeast Ohio. In fact, the top two were both Ohio employers. (Next year, Buckeye State, let’s not try quite so hard.) Rounding out the finalists are The Sexist, Racist, Xenophobic, Oh My! in third place, and the The Supervisor Supremacist in fourth.
What did we learn? That murder bests torture, and they both top harassment of any variety.
This brings 2018’s contest to a close. I hope everyone had a little fun, and learned something along the way.
The contest has already resumed for the Worst Employer of 2019 — Our first nominee, The Philandering Pharmacist (thankfully not from Ohio), has already set a pretty high bar.
A: An employer must have one of these to avoid running afoul of discrimination laws when an employee is out on a medical leave of absence.
Q: What is an open-ended leave of absence policy?
Two employers recently learned this lesson the hard way, care of the Equal Employment Opportunity Commission.
Family HealthCare Network will pay $1.75 million to resolve disability and pregnancy discrimination claims stemming from its use of “rigid leave policies and practices to deny reasonable accommodations to its disabled and/or pregnant employees, refusing to accommodate them with additional leave and firing them when they were unable to return to work at the end of their leave.”
The Cato Corporation will pay $3.5 million, also to resolve claims that it “denied reasonable accommodations to certain pregnant employees or those with disabilities, made certain employees take unpaid leaves of absence, and/or terminated them because of their disabilities.”
Says Melissa Barrios, director of EEOC’s Fresno, California, Local Office, “The EEOC continues to see cases in which employers have a rigid leave policy that discriminates against individuals with disabilities or pregnant employees.”
These issues very much remain on the EEOC’s radar. Unless you want to risk being on the receiving end of an expensive enforcement lawsuit, take these lessons to heart and ensure that your leave of absence policies, both in writing and in practice, permit for extended unpaid leaves as reasonable accommodations for disabled and pregnant employees.
Meet Joyce Fogleman, the president, pharmacist and sole owner of J&S Professional Pharmacy, who is, along with her pharmacy, the defendant in a sexual harassment suit in Blades v. J&S Professional Pharmacy.
With tongue planted firmly in cheek, Judge J. Philip Gilbert of The United States District Court for the Southern District of Illinois describes the employer as “your typical pharmacy.”
Typical, that is, until you read the allegations levied by Wendy Blades and her co-workers:
Joyce Fogleman demanded kisses on her mouth by employees as a prerequisite to receive their paychecks.
Fogleman gave employee spankings as a form of discipline and sexual gratification in front of other employees and customers.
Fogleman went nude both in the workplace and at company-sponsored events.
Fogleman made comments about the physical attributes of employees in front of other employees and customers.
Two thoughts:
1. What the hell kind of pharmacy is this?
2. Employers, the bar for 2019 is set. How will you top it?
In my experience, self-improvement is a day-to-day task. It’s a culmination of hard work that over time is accomplished by small but constant steps.
With the new year comes a good number of people whose New Year’s resolution is to get healthy. Given that people spend a good amount of time at the workplace, I’ve spoken with workplace wellness experts and others about well-being tips employees should keep in mind on a day-to-day basis in 2019. Some of them have also explained the employer’s role is in accomplishing these basic tasks.
Keep track of your achievements: Sometimes we can get caught up in the fast pace at work, getting bogged down by problems and difficulties and failing to appreciate our successes along the way, said Rick Hughes, head of service at the University of Aberdeen’s Counseling Service and a co-author of the book “The Wellbeing Workout,” along with Andrew Kinder and Cary L. Cooper. This can lead to anxiety, tension and stress.
“Toward the end of each work day, list three ‘achievements’ of the day in your diary,” Hughes suggested, adding that they don’t need to be major accomplishments. They can be as simple as “I had a good meeting with my colleague” or “I got appreciation from a customer.”
“At the end of the week you’ll have 15 achievements,” he said. “Sit back, applaud yourself and look forward to building on this further the following week.”
“Believe it or not, being composed is a skill,” Young said. “When you’re composed you have more control, more optimism, you make better decisions, and those decisions you make, because they’re better, help you stay in balance.”
She suggested three ways in which people can hone this skill.
Connect with something personally meaningful. “If you stop every so often and say, what is meaningful to me? It resets the idea that I’m not just wandering here. There are things in my life that matter to me, and you basically are connecting with them. If we don’t connect and reflect, then these important points in our lives get away from us,” Young said. She added that if someone spends a couple minutes reflecting on what’s personally meaningful to them, the example might not be something positive. It could be something that’s causing negative thoughts or emotions. That’s still valuable, though, since it gives people a sense of centering and takes them away from the trivial things that can take up one’s day-to-day life.
Nap. Studies have shown that even a three-minute nap can be refreshing, Joyce said. Personally, she enjoys taking 20-minute naps many days. Short naps can help someone feel more refreshed and composed.
Connect with nature. This can help with something called “attention fatigue,” Joyce said. One’s sense of attention gets tired, much like a muscle, and experiencing nature can help restore that attention, for example by looking out the window at the office at the park across the street or keeping plants at the desk.
HR has a role in this, too. First, if decision makers in the HR community actually engage in the practices, they get the benefit of the practices, Young said. Also, if they engage in practices like this then it’s easier and more apparent to them what specific things they could do to help support their employees in similar endeavors.
Get fresh air: Expanding on Young’s “connect with nature” idea further, Tracy Hultgren, the creator of the blog Trail Tracing, advocates that people take a little time out of their day to get fresh air and take a walk. Hultgren spoke with Workforce earlier this year, and his ideas are worth revisiting.
For one, his notion to walk outside every day is simple and applicable to most geographies, from the middle of a city to a suburb close to local parks. Walking is a simple form of exercise that most people can do, Hultgren said. While many people have an “all-or-nothing” approach to working out — an attitude like, “If I’m not going to run a marathon, I’m not going to run at all” — allowing oneself a short, stress-free daily workout like walking lets them have a little time every day to take care of themselves in a low-key and not stressful way.
An employer’s role in this is simple. Basically, they just have to be open to allowing employees a short amount of time each day to leave their desk.
Scrap the resolutions: This one is coming from me. A while ago, a friend suggested that having a “goal” for the year was better than having the traditional resolution. So instead of telling yourself to go to yoga once a week, make a theme like “tranquility.”
It’s something more flexible, realistic and creative, because instead of doing one specific task every so often, you have a general vibe you’re striving for, and a lot of different activities fit in it. You might to yoga to calm down and feel more at peace, but you could also go on a long walk, spend a little time pampering yourself, or cook yourself a dinner that makes your apartment smell good.
This is also something realistic to fit in your everyday life, I believe.
Any other wellness tips you find valuable in your workplace? Comment below or reach out to me on Twitter @Andie_Burjek. I’ll add them to this list post-publication.
It’s one of the questions I get most often from clients.
So, let’s take a quick run through the rules of docking employee’s pay for exempt employees.
Generally speaking, it violates the Fair Labor Standards Act to dock (that is, take a deduction from) the salary of an exempt employee. Under the FLSA,an exempt employee earns their entire salary for a work week as soon as that employee works even one minute during that week.
The logic is simple. Once you start deducting from an exempt employee’s salary for minutes or hours not worked, you are not treating that employee as salaried, but as hourly. And, hourly employees are not exempt. Therefore, if you don’t pay an exempt employeetheir entire salary for every work week in which any work is performed, then you are treating them as hourly and they are not exempt.
There are, however, seven limited exceptions permitting deductions from an exempt employee’s weekly salary:
When the exempt employee is absent from work for one or more full days for personal reasons, other than sickness or disability.
For absences of one or more full days occasioned by sickness or disability (including work-related accidents) if the deduction is made in accordance with a bona fide plan, policy or practice of providing compensation for loss of salary occasioned by such sickness or disability.
While an employer cannot make deductions from pay for absences of an exempt employee for jury duty, attendance as a witness, or temporary military leave, an employer can offset any amounts received by an employee as jury fees, witness fees, or military pay for a particular week against the salary due for that particular week.
For penalties imposed in good faith for infractions of major safety rules.
For unpaid disciplinary suspensions of one or more full days imposed in good faith for infractions of workplace conduct rules imposed pursuant to a written policy applicable to all employees.
For any time not actually worked during the first or last week of employment.
For any time taken as unpaid FMLA leave.
It is critical for employers to understand these rules. A mistaken deduction could prove costly. Generally speaking, if an employer makes an improper deduction from an exempt employee’s salary, the exemption will be lost during the time period during which the improper deduction was made. Critically, the lost exemption does not only apply to the affected employees, but also to all employees in the same job classification working for the same managers responsible for the actual deduction.
Before you consider deductions from an exempt employee’s salary, consult with your employment counsel to make sure you have these rules covered and the deduction is proper.
Suppose one of your employees believes that she was discriminated against because of her protected class.
She files a charge of discrimination with the EEOC, and in support of the charge, provides the agency information from your confidential personnel files that she had copied. In response, you fire the employee for violating your confidentiality policy? She then files a new charge, alleging that her termination was in retaliation for her protected activity of gathering evidence in support of her discrimination claim.
Does her retaliation claim succeed?
Lawyer answer: it depends.
Most recent answer: The 4th Circuit Court of Appeals, in Netter v. Barnes.
Under the opposition clause, unauthorized disclosures of confidential information to third parties are generally unreasonable.…
However, the participation clause offers more capacious protection for conduct in connection with Title VII proceedings. Application of the participation clause must account for the evidentiary difficulties many plaintiffs face when pressing claims of workplace discrimination.…
That said, we cannot conclude that Netter’s unauthorized inspection and copying of the personnel files constituted protected participation activity for a straightforward reason. She violated a valid, generally-applicable state law [against the] “knowingly and willfully examin[ing]…, remov[ing,] or copy[ing] any portion of a confidential personnel file” without authorized access. “[I]llegal actions” do not constitute “protected activity under Title VII.”
We are loath “to provide employees an incentive to rifle through confidential files looking for evidence.”
In other words, because Title VII’s anti-retaliation provisions do not permit an employee to engage in illegal activities, and because this employee’s state law prohibits the copying of confidential personnel files, Title VII does not protect her copying in this case.
That said, your mileage on this issue will vary based on your jurisdiction and the nature of the how the employee gained the information.
Courts generally balance the following factors to determine whether the employee’s gathering of the documents was reasonable, and therefore protected:
How the documents were obtained
To whom the documents were produced
The content of the documents, both in terms of the need to keep the information confidential and its relevance to the employee’s claim of unlawful conduct
Why the documents were produced, including whether the production was in direct response to a discovery request
The scope of the employer’s privacy policy
The ability of the employee to preserve the evidence in a manner that does not violate the employer’s privacy policy.
For example, in Niswander v. Cincinnati Ins. Co., the 6th Circuit held that an employee who purposely rifles through confidential personnel records to locate evidence to support a discrimination claim cannot support a retaliation claim.
Yet, in Kempcke v. Monsanto Co., the 8th Circuit permitted the retaliation claim based on the fact that the employee had innocently stumbled across the evidence of potential discrimination in a computer that his employer had issued to him.
What does all of this mean for you?
First, review your company privacy policy to ensure that it sufficiently covers employee personnel files so that you can rely upon it if you have to terminate an employee for engaging in some self-help to support a discrimination claim.
Second, before you take any action, check in with your employment counsel to discuss the circumstances and the potential risks of stepping into a retaliation claim.
Ray Kelvin, CEO of UK fashion retailer Ted Baker, is a hugger.
According to an online petition seeking to end his practice, “he greets many people he meets with a hug, be it a shareholder, investor, supplier, partner, customer or colleague.”
And, it doesn’t stop with hugs. He asks young female employees “to sit on his knee, cuddle him, or let him massage their ears.” He strokes employees’ ears. He takes off his shirt in the workplace and talks about his sex life. Even worse, when employees go to HR to complain, they are told, “That’s just what Ray’s like.”
Well, they’ve had enough “of what Ray’s like.” More than 2,600 people, including over 300 current or former employees, have signed the online petition calling on Ted Baker to “scrap the forced ‘hugs’ and end harassment.”
Let’s deal with low-hanging fruit first. Stroking employees’ ears, talking about your sex life and walking around work shirtless are all creepy and wrong. Period. And, no, HR cannot pass it off as, “Well, you know Ray… 😉”
The employer has an absolute duty to investigate and take corrective action to ensure that the harassment stops. And the fact that the alleged harasser is the CEO is not a justification to do nothing. In fact, if #MeToo has taught us anything, it’s reason to do more, not less.
As for the hugs, they are a symptom of the larger problem. In a vacuum they might be innocuous, but in this case they are a symptom of a deeper culture of harassment.
Indeed, one person’s hug is another’s creepy gesture or, worse, inappropriate advance. Where is the workplace line?
There are some forms of physical contact which, although unwelcome and uncomfortable for the person touched, are relatively minor. Cumulatively or in conjunction with other harassment, such acts might become sufficiently pervasive to support a hostile environment claim, but if few and far between they typically will not be severe enough to be actionable in and of themselves. A hand on the shoulder, a brief hug, or a peck on the cheek lie at this end of the spectrum. Even more intimate or more crude physical acts—a hand on the thigh, a kiss on the lips, a pinch of the buttocks—may be considered insufficiently abusive to be described as “severe” when they occur in isolation.
On one extreme you have this case, in which an employee was sexually caressed and hugged, and even had fingers poked in his anus through his clothing. Yet, on the other extreme, you have this case, in which a manager hugged a subordinate to lift his spirits during a rough work day.
So, employers, what’s the answer? How about some good old-fashioned common sense. If you have a close enough relationship with someone to greet with a hug, then hug it out. If someone complains about your hugs, stop. It’s just that simple.
It’s not enough for business leaders to merely be “the man (or woman) behind the curtain” anymore.
In a world that’s rapidly becoming more technology driven, managers and executives must put in extra effort to create human relationships with their people — connections that are necessary for any organization to thrive in a complex and competitive marketplace.
The more your business is centered around artificial intelligence, robotics or other digital technologies, the more effort you have to make to be human and to create human relationships, to pry people away from their smartphones, to have face-to-face conversations, to appreciate people and to be honest.
Sure, digital awareness skills and abilities are important, but the more tech-focused we get, the more human leadership there has to be. Otherwise you’re just “behind the curtain.” Plenty of executives lead that way anyway, but in this environment you have to take greater steps to be more real — and effective — than the Wizard of Oz.
These are three behaviors that will help leaders make more meaningful connections with their people.
Be trustworthy and fair. Whether your people see you regularly in person or you stay “behind the curtain,” your team has to be able to trust that what you say is the truth. That doesn’t necessarily mean you always share everything you know, but everything you do say has to be true. If you can’t share an answer to a question or some other information for a legal or strategic reason, then be upfront about that. Don’t make something else up, dance around it or shade the truth. You could say something like: “Because of FCC rules, because of a board vote, because of competitive pressures, I can’t go into this right now, but rest assured we are working on it and at the appropriate time we’ll share everything you need to know and everything you want to know.” When you speak you should tell the truth, and if the truth changes you should go back to your people and explain why.
Be personal and approachable. The second vital behavior for leaders is that even if you stay “behind the curtain” and all anybody sees is the smoke and the floating face of the “wizard,” you still have to figure out how to be personable and approachable. Your people still need to feel that you’re a human being — and that they’re being treated as human beings. That means if you bump into each other in the hallway, you stop, look him or her in the eye and talk directly to that person. Don’t look down at your mobile device, mumble something and keep going. Don’t be that leader who’s going to the penthouse 40 floors up but doesn’t say anything in an elevator full of employees. If you struggle to make human connections with your team, consider holding office hours in the cafeteria two times a month for a few hours and announcing it to your team by offering to chat or answer questions. Maybe just two people will show up the first time. But the next time four people will attend, then eight. Before long you will have made real strides in changing the vibe in your organization.
Provide and acknowledge meaning. This can be a hard one for baby boomers, who, broadly speaking, are often happy just to have a job. But today’s reality is that there are younger generations in the workforce who, while certainly happy to have a job, care more about the values that they hold and the meaning they derive from their work than previous generations have. In this case, the CEO will rarely be the person who regularly acknowledges meaning for low-level employees, but they can still do it periodically. Managers, however, can absolutely help in this regard by building this behavior into their regular interactions with direct reports. These acknowledgments of meaning can take place in performance conversations, weekly catch-ups or conference calls. They could be as simple as saying “Here’s how the work that you’re doing ties to our mission. Here’s how the work that you are doing is enabling our customers to do X, Y and Z. Here’s how what you’re doing, Bob, is moving this project forward exponentially.” Everybody wants to know that what they’re doing is not only important and appreciated, but fits in with the values and the mission of the company.
Increasingly complex times demand dynamic leadership, which calls upon business leaders to step out from behind the curtain and connect with their people on a genuine human level.
The Hyman clan carried out our annual holiday tradition of watching “Elf.”
Since much of the story took place in and around various workplaces, this year I decided to watch with an eye toward shareable employment law lessons.
Early in the story, Buddy learns the harsh reality that he is not actually an elf but a human. He learns this lesson after falling 985 Etch A Sketches short of his production expectations and being transferred to Jack-in-the-Box testing (the job reserved for “special” elves).
Assuming that Buddy’s height is a disability in the North Pole (and if the ADA protects dwarfs down south, it’s safe to assume the North Pole’s disability discrimination laws would similarly protect Buddy’s heightened height up north), what ADA lessons does this parable teach us?
1. Reasonable production standards.
The ADA does not require an employer to lower production standards — whether qualitative or quantitative — that it applies uniformly to employees with and without disabilities. An employer may, however, have to provide reasonable accommodation to enable an employee with a disability to meet the production standard.
Thus, if Santa requires 1,000 Etch A Sketches per day, then Buddy is required to make 1,000 Etch A Sketches per day, disability or no disability. Santa may, however, have to offer Buddy a reasonable accommodation (if available) to meet that quota. Santa may also choose to lower or waive the production standard, but he is not required to do so. Keep in mind, however, that if one waives or lowers the requirement for one employee, it makes it difficult to argue for future employees that the production requirement is truly essential, or that altering it is not a reasonable accommodation.
2. Transfer as reasonable accommodation.
The ADA specifically lists “reassignment to a vacant position” as a form of reasonable accommodation. An employer must consider this type of reasonable accommodation for an employee who, because of a disability, can no longer perform the essential functions of their current position, with or without reasonable accommodation. Reassignment is the reasonable accommodation of last resort and is required only after it has been determined that: (1) there are no effective accommodations that will enable the employee to perform the essential functions of his/her current position, or (2) all other reasonable accommodations would impose an undue hardship.
There are, however, several caveats.
The employee must be “qualified” for the new position, both by satisfying the requisite skill, experience, education, and other job-related requirements of the position, and by being able to perform the essential functions of the new position, with or without reasonable accommodation. An employer is under no obligation to assist the employee is becoming qualified, such as by providing training to enable the employee to obtain necessary skills for the job.
“Vacant” means that the position is available when the employee asks for reasonable accommodation, or that the employer knows that it will become available within a reasonable amount of time.
The reassignment must be to a position equal in pay, status, or other relevant factors (such as benefits or geographical location). If there is no vacant equivalent position, the employer should reassign to a vacant lower level position for which the individual is qualified and which is closest to the employee’s current position in terms of pay, status, etc.
For Buddy, that position was Jack-in-the-Box tester, an open position for which he was qualified.
There you have it. ADA lessons from “Elf.” Happy holidays.
