And the marquee event of this year’s Shark Week was Olympic swimmer Michael Phelps “racing” a great white shark. I say “racing” because Phelps did not race an actual shark. Instead, he swam against a CGI shark based on a previously recorded shark.
To create the CGI, the show had to record a shark swimming in a straight line for a pre-determined distance. And, since great white sharks are not known for their trainability, the job to lure the straight-line swim fell to this guy.
Yes, that is a man, paddling a pontoon bicycle, a few feet in front of a pursuing great white shark, wearing absolutely zero protection. #worstjobever
OSHA has thousands of standards that cover many of the specific safety issues that could arise in the workplace. While these standards dig into the minutia of the American workplace, I can guarantee that OSHA lacks one for “shark-race bait.”
OSHA, however, does not solely regulate of the safety of the American worker via its specific standards. It also has a General Duty Clause, which provides, “Each employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.” For example, OSHA used this general duty clause to cite Sea World of Florida following a trainer’s death from a killer-whale attack. If the general duty clause can reach Sea World, it can certainly reach Shark Week.
Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. To comment, email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.
It was clear from the 2017 SaaStr conference in San Francisco that technology has not lost its luster. In only its third year, the three-day conference was a huge hit with around 10,000 post-revenue software as a service founders, executives and investors. But at the same time it had identified some disparities, such as clear underrepresentation of female founders and CEOs.
While rare at 22 percent attendance, the female executives were still remarkably more visible than an almost extinct cohort: the over-50 tech executives. These “dinosaurs” appeared to be so rare that no one even dared (or cared) to take the statistical analysis of their presence (or lack thereof).
The only anecdotal knowledge of their existence was my own experience observing the busy hallways and energy-filled sessions and looking for my own kind. An occasional nod from a like species as a sign of mutual affection and understanding was accompanied by a sheer sign of strength, confidence and pure enjoyment, as if we already knew the end of the movie and all other participants were just watching the trailer.
Do Unicorns Need Dinosaurs?
Unicorns are startup companies valued at over $1 billion. By the latest analysis, there are 197 private tech companies valued at $1 billion or more (including whisper valuations). According to Fortune, at least a dozen of those would have a chance of making it to the S&P 500 list; an impressive feat.
It is well known (and celebrated) that 14 out of the top 100 wealthiest tech CEOs are under 40 years old. At the same time, the median age of a U.S. worker is 42. In Silicon Valley, that number drops to 31, according to Bloomberg. Even more remarkable, and to put things in perspective, less than 10 executives under the age of 40 are heads of non-tech Standard & Poor’s 500 companies, according to Spencer Stuart, while the average age of all CEOs at S&P 500 companies is 53, according to The Conference Board.
Is there an executive age bias in Silicon Valley? It is not due to age discrimination. A vast majority of tech firms are socially and culturally very liberal and pride themselves on diversity.
The best way to understand it is to look at how most tech firms get started and by whom.
In most cases, there is an identified, unfulfilled need that is subject to a “disruption of an existing solution” and it triggers a professional cognitive “juice flow” by either a young marketer, or (in most cases) a young programmer who believes they are placed on this Earth to solve that problem.
Those individuals are rarely busy running large organizations and are frequently either students, or employed by other young marketers or programmers whom they want to emulate or even one-up. Once the idea is born, they have the time and passion to drag their friends out of their jobs (or dormitories) and convince them to resort back to the college all-nighters in order to produce a prototype or launch the app so the initial capital can be raised and get the company started. Very few, if any, existing mid to large-company CEOs are going to do that (unless already retired from a previous financial windfall).
In most cases, the founder(s) end up not including a more experienced business executive in their early ranks, either as an adviser or, even rarer, as their boss. Here are the most common reasons as to why this practice is so rare:
Twenty- to 30-year-old tech wizards are very self-assured and believe that their tech prowess or expertise in marketing to like cohorts will create products and market demand for the company to succeed on its own and within their own leadership.
The technology evolves so rapidly that there is a common belief that if an executive is over 40, their ability to recognize, apply and leverage the most advanced techniques and tools is outdated and therefore rendered immaterial.
Since most young founders have rarely held more than midlevel jobs at more established companies, there is a significant lack of mentoring and familiarity created between the two (sometimes three) generations of leaders.
The Case for Dinosaurs
So, are the young founders missing out? Why should they reach out to gray-haired elder statesmen and women? Here are three reasons:
Experience. Older executives have seen the market cycles, funding fads and corresponding investor mood swings. They have, in most cases, already made operational errors in burn rates and know when to step on the gas and when to brake.
Patience. As Rome was not built in a day, neither is a successful company. The best outcome for a growth company is to combine youthful exuberance with cautious optimism.
Advice and confidentiality. Since few if any tech startups are created by a parent-child team, the next best thing is a synergistic, complimentary relationship of a visionary young founder and a mature executive whose personal interests for the partnership are diverse and business interests aligned.
Every aspiring Mark Zuckerberg and Nathan Blecharczyk ought to have a Warren Buffett or Sir Richard Branson in their executive suite. Because when they are planning to create that next unicorn, they may just need a dinosaur to sustain their dream.
Sasha Poljak is the executive chairman of Nimble Software Systems, creator of Ximble.com, a staff scheduling and time tracking app software platform deployed in more than 30 countries worldwide. Poljak is a seasoned entrepreneur and angel investor who has led strategy and market development in a number of successful tech ventures.
A Minnesota federal court has ruled that an employee’s request for a religious accommodation did not qualify as protected activity to support the employee’s retaliation claim. EEOC v. North Memorial Health Care (D. Minn. 7/6/17) involves a hospital that withdrew a conditional job offer to a nurse after she disclosed that she was a Seventh-day Adventist and could not work Friday nights because of her religion.
As an accommodation, the employee offered to find a substitute for Fridays on which she was scheduled, and that she would work if she could not find one. The hospital denied her request, and, ultimately, the EEOC filed suit on her behalf claiming that the hospital retaliated against her because of her religious accommodation request.
In dismissing the EEOC’s claim, the court applied strictly interpreted Title VII’s retaliation clause.
Under Title VII, an employee engages in protected activity when she either (1)”oppose[s] any practice made an unlawful employment practice by [Title VII]” or “ma[kes] a charge, testifie[s], assist[s], or participate[s] in any manner in an investigation, proceeding, or hearing under [Title VII]. 42 U.S.C. § 2000e-3(a). …
Applying the plain language of the statute, the court concludes that requesting a religious accommodation is not a protected activity. Under the opposition clause, a plaintiff must communicate her opposition to a practice that she believes, in good faith, is unlawful. … [M]erely requesting a religious accommodation is not the same as opposing the allegedly unlawful denial of a religious accommodation. …
Neither is [the employee]’s accommodation request protected activity under the participation clause. There is no evidence that [she] “made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing” prior to her termination.
While I applaud this court’s strict reading of the retaliation statute, employers should not view this lone district court case as a mandate empowering them to deny accommodation requests free from risk. The law on this issue is far from settled. Instead of using this case as a justification to deny an accommodation request, employers should view it as a reason to have an open dialogue with a religious employee requesting an accommodation.
How should this case have played out?
Employer: “Nurses must work every other Friday night.”
Employee: “My religion prevents me from working Friday nights.”
Employer: “Then you cannot work here.”
Employee: “What if I find a substitute for the Fridays that I am scheduled, and I’ll work any Friday night shifts for which I can’t find one.”
Employer: “Let’s give that a try.”
No harm to the employer; it has its Friday nights covered. And, if the employee fails to locate coverage and fails to show at work, it becomes an attendance issue, not an accommodation issue. At that point, the employer can then discipline or terminate without fear of retaliation liability for denying the accommodation request, no matter what the law says.
Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. To comment, email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.
This past school year I had the pleasure of assisting in my daughter’s fifth-grade class as a room parent.
For the uninitiated, room parent is a fancy title for a classroom aide. We assist the teachers with classroom events and facilitate communications between the homeroom teachers and the parents for volunteers, supplies, etc. As the school year wound down and the kids approached lower-school graduation, my room parent duties expanded with a request from the teachers in regards to an end-of-year party, allegedly in the planning stages by someone other than me.
The request, however, was not for my party-planning assistance, but instead to send a note to all parents asking that any such off-campus, private parties be inclusive of all, and that no children be excluded, as word had spread of this “invite only” party, and some of the excluded children were hurt.
Equal treatment for all? Sounds fair, right? But is anything about the workplace fair? What does fair even mean, and, more to the point, does the law require it at work?
Nothing in the law requires the workplace to be fair. It only requires that you treat similarly situated people of different protected groups similarly. Equality across protected classes, however, is not the same as fairness.
Yet if society expects fairness, then unfairness will cause lawsuits, and members of the same fairness-expecting society will comprise the judges and juries that will decide the legality of your terminations. As a result, some basis of fundamental fairness should ground each employment decision you make.
What does fundamental fairness in the workplace look like?
Don’t ambush your employees. They should understand why they are being fired via prior discussions, prior performance reviews and prior discipline.
The punishment must fit the crime. Do you really need to fire the employee who is late for work occasionally? Maybe, if he or she has been repeatedly warned. But the first time? If the punishment far exceeds the misconduct, the employee will look for a reason for the mistreatment and unfairness, such as race, sex, age or disability. Do not provide an impetus to look past the stated reason. Alternatively, a sufficiently serious offense (e.g., sexual harassment, theft, violence) may support a termination on the spot. Otherwise, however, employees should have an ample and bona fide opportunity to correct their misbehavior.
Have documentation to support your decision. Do you have a performance review, written warning or other contemporaneous notes in a personnel file to support your decision? If not, it’s best to wait until you do. And, no, this is not an excuse to create a paper trail after the fact. Documentation should be contemporaneous to the misconduct.
Be consistent. Do you handle similar disciplinary problems similarly and to the same degree? If not, those that suffer the worst will ask why, and they may do it via their attorney in a lawsuit.
To make this concept of workplace fairness even simpler, do unto your employees as you would have your employer do unto you. If you treat your employees as you would want to be treated (or as you would want your wife, kids, parents, etc. to be treated), most employment cases would never be filed, and most that are filed would end in the employer’s favor. Juries are comprised of many more employees than employers, and if jurors feel that the plaintiff was treated the same way the jurors would want to be treated (i.e., fairly), the jury will be much less likely to find in the employee’s favor.
As for the party-fairness issue in my daughter’s class, here was my response:
“I believe that a party host should have discretion whom to invite and not invite. No one should feel obligated to invite the entire grade if they don’t want a gradewide party at their private event. To go one step further, if they don’t want my daughter to attend, and only after-the-fact invite her out of a sense of obligation, then I don’t want her there and would strongly counsel her against attending (and I think she’d agree with me). As awesome as I know she is, I am not naive enough to think that she is on the ‘friend’ list of everyone in the 5th grade (nor is she).”
Sounds fair to me.
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.
[vc_row][vc_column] New York Magazine just published an interesting — and fairly critical — article called “How Wellness Became an Epidemic.”
I’ve been thinking about it for the past week. Now, I’ll note that this article focused on the wellness industry at large and not just corporate wellness, but I still think there were some solid takeaways for employers.
Here’s a paragraph that stuck out to me:
“It can be easy to be cynical about wellness, about the $66 jade eggs that Gwyneth Paltrow suggests inserting in your ‘yoni.’ There’s something grotesque about this industry’s emerging at the moment when the most basic health care is still being denied to so many in America and is at risk of being snatched away from millions more. But what’s perhaps most striking about wellness’s ascendancy is that it’s happening because, in our increasingly bifurcated world, even those who do have access to pretty good (and sometimes quite excellent, if quite expensive) traditional health care are left feeling, nonetheless, incredibly unwell.”
It hits the major beats of the article, mainly that A) it can seem like in this industry, wellness is something that can be bought, if only you have the wealth to buy it; and B) in today’s current health care environment, both the haves and the have-nots are feeling unwell in some way and looking for the cure, sometimes in very different places, whether that’s through alternative or traditional treatment.
It’s also worth noting that author Amy Larocca C) entertainingly has a huge problem with Gwyneth Paltrow’s Goop, a “modern lifestyle brand” launched in 2008. Larocca finds much of this advice silly. For example, Goop recommends a vitamin protocol called High School Genes for women who find it harder to lose weight as they age. As Larocca points out, “i.e., ALL WOMEN.” I would add: all people!
I have a few responses related to the employer market. First, do you think “feeling unwell” is an epidemic in the workforce? My perspective is probably skewed because of the articles I read and the people I talk to about wellness, whether it’s mental health, meditation or sleep.
A healthy breakfast is one workplace wellness offering worth having.
From this point of view, it would definitely appear that wellness is an epidemic. But as much as employers push wellness programs, utilization can be low. A lot of reasons might play into this, but there’s one I never hear about: employees who already feel well enough and/or deal with various stresses on their own.
They might not be interested. They might take care of themselves in their own way and not rely on their employer. They may independently track their steps or their mood but feel no need to share that on an app with all their co-workers. They’re doing all right on their own.
Obviously, even these people have stresses in their life. Which brings me to my second point.
Haven’t people always been stressed, only now there’s a whole industry focused on dealing with those stresses? Having highs and lows in any area of health or well-being, whether that’s physical, financial or mental, is the human experience.
On one hand, it’s great that the wellness movement is aiming to help people through these lows. It’s better than the alternative, like not so long ago when even acknowledging mental health problems was taboo. On the other hand, to quote this New York Magazine article again, “It can be easy to be cynical about wellness” when companies try to sell you overpriced solutions you don’t need.
To put this in business-speak, yes, employer-sponsored wellness programs can help a lot of people who are struggling with some health issue. But relatively healthy employees who see these programs as a solution they just don’t need at this point in their lives? Just let them be.
Is it moral to push wellness programs on employees who feel well? Are there some cases where pushing a program on someone can cross the line from simple corporate communication to trying to force a solution on the disinterested? I’d hope corporate wellness doesn’t cross that line and try to create problems where there are none.
I’m optimistic that wellness programs can do a lot of good for companies and employees, otherwise I would not write this blog. I’ve spoken to many HR practitioners at companies who have done very impressive things with their wellness initiatives, whether that’s educating employees on drug prices, teaching about proper nutrition or offering healthy breakfasts in the morning. There’s a lot of excellence happening in this space.
But it’s worth being critical about an industry that has grown so quickly through some means that don’t seem quite kosher, at least in the commercial wellness space. Like convincing people they need things they don’t need.
Employees already have natural stresses in their life. They don’t need anything added to that unnecessarily.
Andie Burjek is aWorkforceassociate editor. Comment below or email editors@workforce.com. FollowWorkforceon Twitter at@workforcenews.
HR, I bet you’ve grown weary of people telling you how to do your job.
I’m not talking about your corporate executives, or IT geeks and their annoying heavy sighs or those eternally optimistic yet preachy internal communications people. No, I’m talking about the know-it-all thought leaders and consultants who have written the hundreds of books scattered around my office. You know, evolve or die, understanding EQ, and how much better off you’ll be building a team of teams (yeah, I don’t get that one either).
As I scroll through my 40,000-plus deleted emails there are strategies for networking success, tips on the “new” workplace-training model and dire warnings that your department will combust if you don’t beef up cybersecurity (OK, I made that up, sort of). If I had the patience to scroll past the first 5,000 or so I’d probably come across best practices in building better mousetraps.
And despite being a decade into it, there’s no shortage of millennial management tricks even though these generationally obsessed experts likely couldn’t get their own millennials to clean their bedrooms no matter how much they assure them they are more than just a cog in the housekeeping wheel. Chalk it up to the lack of a fun, employee-centric, team-like environment around the ol’ homestead.
You didn’t ask, HR; you seldom do. Nonetheless, there is more advice, assistance and admonishments available these days than you can shake a carrot and stick at.
So instead of badgering you with more truly meaningless generational cohort banter, let me offer one little sliver of perspective.
Be grateful you aren’t your boss.
Now I realize that bosses also are on the receiving end of a lot of unsolicited advice.
Unlike you in HR, who really must do it all, from stocking the supply room when Post-it notes run low to assessing the latest iteration of performance review forms (should 1 or 5 indicate strongly agree or strongly disagree?), bosses get an entirely different set of uninvited topics dished out for them.
It’s not only on them to change the workplace, bosses are being told that it’s their duty to reshape the world as well. That’s one heavy load to shoulder.
Take health care, for instance. I have no doubt the vast majority of bosses want to provide a plan that takes care of their workers and their families. It’s a big cost — possibly their largest expense, next to that constantly dwindling supply of Post-its. But we’re far enough down this well-traveled roller-coaster ride that is the government-sponsored health care debate to know that healthy employees make better workers.
And that’s precisely why your boss is being tabbed to enter the fray. Time was, health care was your domain. And in many ways it still is.
Oh boss … save our planet, too.
But consider that it’s the bosses, not you, who provide nearly 170 million people with their health care insurance. That’s half the U.S. population! And there are plenty of people harping on your boss to step up and dictate how health care is funded and delivered.
In addition to calls to fix racial tensions, widen organizational diversity and implement pay equality there’s also a groundswell of support for bosses to be the planet’s caretakers. In the wake of President Trump’s eye-rolling move to join such progressive-minded nations as Nicaragua and Syria in rebuffing the Paris Climate Accord, the chorus of “employers must protect the planet!” has escalated from a whisper to a lung-burning scream.
Your boss is no voice in the wilderness, either. Plenty of corporate captains are tackling that task already. Tesla’s Elon Musk, GE’s outgoing chief Jeff Immelt and Goldman Sachs CEO Lloyd Blankfein are committed to, as Apple’s Tim Cook wrote in a memo to his employees, “protect the environment.”
I mean, this is heady stuff. We’re not talking about disrupted supply chains and building organizational agility and resilience here. Solve the nation’s health care woes AND be the earth’s savior at the same time? That’ll have your boss pining for the days when busting unions and skirting ethics laws were their biggest challenges.
Look HR, I know you have a lot on your plate. But take it from someone who’s made a living out of telling people that “you should do fill-in-the-blank:” Go easy on your boss. There’s an ailing health care system to cure and a mighty messy environment that needs saving.
And if you want to hand off a less taxing responsibility, let them select whether 5 or 1 means strongly agree. The diversion will do them good.
Rick Bell is Workforce’s editorial director. Comment below or email him at rbell@workforce.com
Let’s talk about money. Every time I read an article or internet think-piece about how people are stressed about money, I have to actively stop the incoming eye roll. Of course people are stressed about money. Is that a surprise?
“You can’t just assume that everyone who doesn’t save isn’t educated, is making the wrong decision and is a mess. That’s very much not the case,” said Nathan Voris, managing director of business strategy at Schwab Retirement Plan Services.
CNN recently reported that half of Americans are spending their whole paycheck; they have no financial cushion. And although individual spending habits contribute to this to some degree, much more of this problem could be associated with the bigger picture. “People are spending a shockingly large amount of income on housing. They have to pay for transportation to get to a job. These costs are going up while their wages stay the same,” said Jennifer Tescher, president and CEO of Center for Financial Services Innovation, according to a CNN article. CFSI is the organization that released this study. Also a factor: irregular income, a problem that won’t go away as the gig economy becomes bigger.
Keeping this in mind, it’s no wonder that so many people aren’t contributing the maximum to health savings accounts and retirement funds. Does raising the HSA contribution ceiling or auto-enrollment/auto-escalation solve that problem? I recently heard that people should be contributing 20 percent to their 401(k) or Roth IRA, which is laughable even for people who don’t spend all of their paycheck. I can contribute 20 percent now because I’m saving money, paying off student loans and living with my parents, but for any self-supporting person out there with expenses for rent, food, utilities, child care, eldercare and health care, is that even possible? And is it possible to do that while also contributing a maximum amount to an HSA?
OK, end of rant. For all of these structural elements in place, of course at least some of these money management problems fall on the individual. And from the company’s point of view, of course individuals need to learn how to be responsible for their own finances. In my experience, money management isn’t something that’s taught in a formal/academic setting; people learn that from role models like their parents or don’t really think about it at all. It’s a positive thing to give people those tools once they enter the workforce.
What a fantastic idea. The two people mentioned in the article used their day off in different ways. One man found out his wife had a tumor that would take $100,000 worth of surgery to treat. The two of them used this day to go over their finances and figure out how they would pay for it. According to the article, the man made the decision to change his health insurance to be better protected, attended classes about financial health and learned how to communicate with his wife about money, which helped them sort through everything effectively.
Another man highlighted in this article didn’t use the day for his own financial health. He visited his father and aunt at their retirement community and helped go over their finances. They were all able to have this important conversation about living expenses and insurance.
Nathan Voris, managing director of business strategy at Schwab Retirement Plan Services
For more information on financial health strategies, I recently spoke with Nathan Voris, managing director of business strategy at Schwab Retirement Plan Services about financial health tips. Schwab recently released a survey of 300 executives that found that more and more, companies are considering financial wellness programs as a core part of a compensation package.
A few highlights of this conversation: Financial wellness has moved from something “fringe” to mainstream the past two years, said Voris. “It went very quickly from a concept to an expectation,” he added. “You don’t see that quick movement in the 401(k) world very often.”
He also mentioned the “convergence of health and wealth,” which I think is a really spot-on way to articulate how companies are treating fiscal stress as part of total well-being. It’s basically just another way to say “holistic well-being” or one of the other buzz phrases out there, but it’s solid. And it’s relatively new, in the context of the employer space and what companies are doing.
On the topic of employee engagement and usage of these solutions, engagement can be as low as 3 percent and as high as 40 percent, Voris said. It depends on the population, partly. Also, it depends on what you’re communicating about the plan. At Schwab, they tend to be data-driven and evidence-based, added Voris. They dig into the data, figure out the specific pain points of an individual and design things around those issues rather than have a “canned wellness strategy.”
This “personalization” approach isn’t anything new, but worth mentioning considering the stark differences between people’s individual financial situations.
I also asked him how companies can deal with different types of employees, like those who are simply bad with money versus those who are not in a financially secure situation because of some unavoidable, unexpected high cost things (like a major surgery, for example).
“What life stage you’re in has a lot of different factors,” said Voris. “You can’t just assume that everyone who doesn’t save isn’t educated, is making the wrong decision and is a mess. That’s very much not the case.” Again, his company tries to tackle that through data-driven solutions.
The message he tries to drive home for people not in a financially secure position is that small things do matter, even if it doesn’t seem like they do. “Don’t try to boil the ocean,” he said. “Scratch one little thing off the list at a time. Over time, over a few years, those little things turn into big things. That’s how we approach it, recognizing that everyone is a little bit different.”
Voris’ final piece of advice? “We need to stop the guilt trip,” he said. “This picture of a handsome, gray-haired man leaning up against the Corvette and looking out into the ocean … the reality is that’s not real for a lot of people. We need to teach people how to retire with dignity and own their situation.”
That’s a good trend we’re seeing in financial wellness, he added. The solutions are becoming more well-rounded to address the needs of people of different financial situations.
Andie Burjek is aWorkforceassociate editor. Comment below or email editors@workforce.com. FollowWorkforceon Twitter at@workforcenews.
It’s been six months since Ohio made it illegal for employers to prohibit employees (or anyone else for that matter) from storing a firearm in their vehicles on the employer’s property. This law, however, lacks any specific statutory teeth (sort of). If Ohio legislators get their way, this omission will soon change.
Am. Sub. H.B. 49 proposes to add the following language:
A business entity, property owner, or public or private employer … may be found liable in a civil action for injunctive relief brought by any individual injured by the violation. The court may award injunctive relief it finds appropriate.
I’m not in love with this statute authorizing injunctive relief (especially when I’ve heard multiple clients balk at the original law). Yet, it’s a whole lot better than the original amendment, which proposed an award of compensatory damages, costs, an attorneys’ fees for a violation.
While I remain convinced that a law permitting employees to store firearms in their vehicles parked at work is a horrendous idea, it is the law, and it is about to have some enforcement teeth behind it. So, instead of complaining about it and threatening non-compliance, now is the time to invest in implementing an Active Shooter / Emergency Action Plan, so that your business knows how to respond in the event this evil enters your workplace.
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.
Yesterday’s post discussing Arias v. Raimondo as the worst employment-law decision of 2017 was way more controversial than I imagined. To me, it’s a no-brainer.
It’s dangerous for courts to hold an employer’s lawyer liable for retaliation against the employees of the lawyer’s client. It will chill an attorney’s ability to give proper advice to one’s client, because anything that remotely could result in an employee suffering an adverse action could, under the logic of Arias, give rise to a retaliation claim. Then the comments rolled in:
As I said earlier, bad facts make bad law. Yes, the lawyer in this case blew the whistle to ICE and actively engaged with ICE agents to work a sting to detain and deport the plaintiff-employee. And that’s terrible if it was done, as it appears, for the purpose of gaining leverage in the wage/hour case.
But to hold the attorney liable for statutory retaliation against his non-employee establishes bad precedent. The Arias court does not rely on the degree of the attorney’s misconduct, or his active role in the ICE sting. The case hinges on its broad interpretation of the word “person” in the FLSA’s anti-retaliation provision.
To illustrate, let’s take this holding of Arias out of the context of its facts.
Suppose you’re outside employment-law counsel for a company. Your client calls you to request your help with an internal investigation. An employee has complained that her supervisor has been sexually harassing her. During that course of that investigation, you discover, through a review of the complaining employee’s corporate email, that she had not been performing her job. You report this malfeasance to your client, who fires the employee. She then sues for retaliation. Under the Arias holding, she can also sue the attorney. Before you tell me that Title VII defines retaliators differently than the FLSA, Ohio’s anti-retaliation provision in its employment discrimination law also defines its scope as “any person”. So while this result may be different under Title VII, under state laws like Ohio’s, Arias could work to hold an attorney liable.
Or, suppose you have an employee who takes FMLA leave for surgery. Let’s say during said FMLA leave, you discover that the employee is vacationing on a Caribbean island. And, further suppose that you discover this employee’s island vacay via his own public Facebook posts, which included photos of him on the beach, posing by a boat wreck, and in the ocean. As a result, you fire the employee for abusing and/or misusing FMLA leave by engaging in activities (verified by pictures posted on his Facebook page) that demonstrated his ability to return to work earlier than the end of the FMLA leave. Sound familiar? These are the exact facts of Jones v. Gulf Coast Health Care, which held the employer liable for FMLA retaliation. And, if that employer’s lawyer gives advice on the termination, under Arias, that lawyer could also be sued for retaliation.
I could go on, but you get the point. We attorneys need to be able to provide advice to our clients free from fear that our clients’ employees will sue us for retaliation when that advice results in termination, discipline, or some other adverse action.
We might win these cases more than we lose them, but we don’t want to be sued in these instances in the first place. Arias may have stepped over a line, but to use these facts to justify a broad rule makes it difficult for all management-side employment attorneys to do our jobs.
If you still disagree, the comment box is below.
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.
I’ll be vacationing in California with my family the first two weeks of July.
After reading the 9th Circuit Court’s decision in Arias v. Raimondo— holding an employer’s attorney liable for FLSA retaliation against his client’s employee because the employee sued his client for unpaid overtime — I’m thinking of adding the 9th Circuit to my list of tourist stops in San Francisco to see if courthouse resembles a Salvador Dali painting. Because this decision is flat-out bonkers.
The facts are fairly simple. After José Arias sued his employer, Angelo Dairy, for unpaid overtime under the FLSA, he alleges that Angelo’s attorney, Anthony Raimondo, reported him to Immigration and Custom Enforcement as an undocumented worker and put a plan in motion for ICE agents to detain him for deportation as his deposition in the FLSA lawsuit.
Arias claimed that Raimondo, acting as Angelo’s agent, retaliated against him in violation of FLSA for filing his overtime lawsuit. Raimondo did not deny his role in setting up the sting, and claimed instead that he could not be liable under the FLSA for retaliating against someone who was never his employee.
The 9th Circuit sided with the employee.
In our case, the difference in reach between FLSA’s substantive economic provisions and its anti-retaliation provision is unmistakable. The wage and hours provisions focus on de facto employers, but the anti-retaliation provision refers to “any person” who retaliates. In turn, section 203(d) extends this concept to “any person acting directly or indirectly in the interest of an employer in relation to an employee.” Thus, Congress clearly means to extend [the anti-retaliation section]’s reach beyond actual employers. Raimondo’s activity in this case on behalf of his clients illustrates the wisdom of this extension.
The FLSA is “remedial and humanitarian in purpose. We are not here dealing with mere chattels or articles of trade but with the rights of those who toil, of those who sacrifice a full measure of their freedom and talents to the use and profit of others. … Such a statute must not be interpreted or applied in a narrow, grudging manner.”
Wow. As one friend put it, “The 9th circuit has officially lost its mind … .” We, as attorneys, should be free to advise our clients without fear of retribution from, or liability to, opposing parties in our client’s litigation. But, they say bad facts make bad law, and the attorney’s conduct in this case would certainly qualify as bad facts.
If you are looking for an employment attorney to help set up an ICE sting at a deposition to detain and deport a plaintiff in the hopes of prematurely ending a lawsuit, then I’m not your guy. In fact, if you asked me about this strategy, I would advise you about the liberal standard for retaliation (adverse action = any act that would reasonably deter one from exercising their statutory rights), and suggest that contacting ICE would likely subject you to a retaliation claim. I would not aid or abet that strategy, but would have to defend it if you overrode my advice and blew the whistle to ICE.
While this attorney may have crossed the line in this case, I am very concerned about a legal standard that appears to open the liability door to attorneys for retaliation against their clients’ employees.
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.
Yes, that is a man, paddling a pontoon bicycle, a few feet in front of a pursuing great white shark, wearing absolutely zero protection. #worstjobever
