Yesterday four members of the Supreme Court had to recuse themselves from a case, and as a result, no decision could be made. Apparently the Justices have not heard of the “rule of necessity.” That rule of thumb says, in essence, that if a court is unable to decide a case because the justices have conflicts, it is more equitable to have a judge with a conflict rule on the case, rather than leaving it undecided. A Supreme Court Justice should be able to render an objective decision even though he or she has some stock in one of the litigants. While not the optimum situation, that is far preferable to saying to the adversaries that the lower court decision is unreviewable.
Restaurants and hospitality organizations, beware--news of another seven-figure EEOC settlement with casual-dining franchise, Razoo's Cajun Cafe restaurants.
The EEOC announced on May 7, 2008 that it had settled a class-wide discrimination case filed against Razzoo's, a chain of Cajun restaurants, with 11 locations in the Dallas/Ft. Worth and Houston areas.
According to the EEOC, Razzoo's had a policy favoring women for bartender positions. The EEOC alleged that the restaurant sent managers a plan calling for an 80-20 ratio of women versus men bartenders. The Commission also cited an informal policy that did not allow male bartenders were to work "girls-only" events.
Razzoo's agreed to split $775,000 among a class of affected male servers, bartenders and applicants, and to spend the other $225,000 either to hire a human resources consultant or to set up an in-house human resources department.
Delaware employers are immune from being sued for providing (honest) information to a reference request. The State law gives employers extra incentive to actually respond to such checks with more than name, rank, and serial number. And that's a good thing.
Reference checks are an essential hiring tool for most employers. Hiring managers often complain about the lack of disclosure they receive in response to their reference requests. And it's estimated that up to one-third of all resumes contain inaccurate information. One British organization has found their own solution to often-restricted access to information about job applicants.
In Britain, an employer association has taken some creative steps to address what most be some serious headaches in the reference-check system. The organization is creating a National Staff Dismissal Register that will consist of an encrypted list of high-risk employees, identifying employees who were discharged for dishonesty or for damaging their employer's property, for example.
Member companies will be able to search the list by name, address, birth date, previous employer and national insurance number. The list is expected to be usable by the end of the month.
Employee and human rights organization advocates worry that employees may find themselves unable to obtain work because, unbeknownst to them, they are on the list because of false accusations or errors, with no way to be certain and no appeal. Employers, on the other hand, look forward to the possibility of reducing losses due to employee theft and negligence.
If they were in Delaware, of course, they might find that such extremes are unnecessary. The full text of the Delaware statute (19 Del. C. Sec. 709) is available on the State of Delaware's website.
[H/T: Workplace Prof Blog]
More at BBC News
Racial discrimination comes in many forms and, following a recent opinion from the Second Circuit, discrimination due to an employee's interracial relationship is one of them.
Employment discrimination laws prohibit employers from making decisions based on race, gender, religion, disability, and certain other characteristics. Since the passage of the Civil Rights Act of 1964, these laws have addressed discrimination based on the characteristic of the employee. But lately there has been an increase in cases of "associational discrimination."
Associational Discrimination 101
In this new genre of discrimination law, the focus is not on the characteristic of the employee, but on a person or persons with whom the employee associates. In other words, let's say that your parents were Jewish and all of their friends were Jewish but you had converted to were Christianity in college.
And let's say that your employer fired you--not because he thought you were Jewish, but because of your association with your Jewish friends and family. That is an example of associational discrimination. The discrimination stemmed not from your religion but from the religion of the people with whom you associate.
A recent case from the Second Circuit--the first of its kind--held that associational violation occurs when an employee is fired for his interracial marriage.
Holcomb v. Iona College (2nd Cir.)
Facts of the Case
The case is Holcomb v. Iona College, decided on April 1. Holcomb was a basketball coach at Iona College in New York. He claimed that a college official, Brennan, tried to prevent Holcom's wife, who was Black, from attending public alumni functions , and that Brennan had made racially derogatory comments about some of the Black players.
Another college official, Petriccone, also made offensive racial comments about Black players in the basketball program. As the Second Circuit put it, "Colleagues at Iona testified to Petriccione’s record of what might, charitably, be called racial insensitivity. Egregiously in this respect, Petriccione is said to have referred to a Nigerian employee at the Alumni Giving Office as a 'jungle bunny' and an 'African princess.' When that member of staff applied to his office for the position of Assistant Director of Annual Giving, he remarked: '[W]hat does she think she is coming from a hut in Africa and thinking she could apply for this job?'”
In addition, when Petriccione found out that Holcomb was marrying an African-American woman, he allegedly made a comment so offensive comments that it won't be posted here.
Iona College eventually fired Holcomb, explaining that his termination had to do with his poor job performance. After the district court granted summary judgment to the college,the Second Circuit remanded on appeal.
The Court's Decision
The court's discussion set forth the associational-discrimination analysis. Here is the play-by-play:
- Protected Class. The Court held that Holcomb was a member of a "protected class" under Title VII. Although Holcomb was not Black, his wife was, and there was evidence that his interracial marriage was the reason for his termination.
- Interracial Association. The Court reasoned that, "where an employee is subjected to an adverse action because an employer disapproves of interracial association, the employee suffers discrimination because of the employee’s own race." All the district judges in this circuit to consider the question, including the district court in this case, have reached that conclusion."
- Pretext Evidence. As noted above, there was plenty of evidence from which the Court could conclude that the reasons given for Holcomb's termination were a mere pretext for race-based discrimination. Another piece of evidence to support Holcomb's claim was that O'Driscoll, the white staff member who replaced Holcomb, was the only white member of the staff without a Black girlfriend or wife.
This decision from the Second Circuit does not necessarily address a novel issue of law. Associational discrimination had previously been addressed by district courts within the Circuit. But the clarity of the Court's opinion in Holcomb very clearly sets the groundwork for similar future claims.
Some recent reports about law firms trying to persuade associates to dress better, and even hiring coaches for them, are a reminder that the pendulum seems to have swung back from the days when even old timers were "dressing down" to try and "connect" with the wealthy young techie entrepreneurs.
I, for one, am pleased to see a move toward more moderate dress.
There has been silliness on both sides of the continuum. Some years ago, the Delaware Supreme Court, in its infinite wisdom, issued an edict that lawyers appearing before it had to wear white shirts. So much for sartorial creativity.
But if I were seeing a lawyer, I'd feel more confident if he or she were wearing a white shirt than jeans or running pants. While I don't think we need to force associates to pore over "Dress For Success," I think that dressing up a bit is a step in the right direction, both for the lawyer's self-image and the clients' confidence in the attorney. Maybe ties can be optional, especially in the summer, but there's nothing like a suit or at least a sport jacket to establish a tone of authority (deserved or not).
Teen job applicants are coming to a workplace near you. As the school year winds down, here is a refresher on the legal limits Delaware employers should understand when hiring youths. Delaware employers must abide by both state and federal child labor laws. In addition, unlike most civil rights statutes, almost all employers, regardless of size, must comply with these laws - even family businesses, with some limited exceptions.
Limitations on scope of work performed
Federal and state laws and regulations operate together to impose a complex set of limitations on employing minors (children under 18 years of age). There are prohibitions on the type of work minors may perform as well as the number of permissible hours they may work. Permissible work for employees between the ages of 14 and 18 encompasses work in retail, food service, and gasoline stations (as long as they don't have a significant repair facility).
Hours of work
Minors under the age of 16 cannot work more than 4hours per day when school is in session, 8 hours per day when school is not in session, 18 hours per week when school is in session for a full week, or six days per week.
In addition, they cannot work before 7 a.m. or after 7 p.m., with the exception that they may work until 9 p.m. from June 1 to Labor Day. Minors under the age of 18 must have at least 8 consecutive hours of nonwork time per day and cannot spend more than 12 hours in a combination of school and work hours per day.
No minor may work more than 5 hours continuously without a half-hour break.
Every employee under the age of 18 must have an employment certificate. The certificates are issued by the Delaware Department of Labor (DDOL) and the superintendent or authorized designee of each school district. You must keep such certificates on file and make them accessible to the DDOL on request. The DDOL offers a sample certificate
Workers' compensation may not protect you
It's also worth noting that illegally employed minors who are injured on the job are not necessarily limited to their workers' compensation remedies. A minor or his or her estate may elect to sue under a theory of negligence and/or wrongful death in the event of a serious or fatal injury rather than pursue workers' compensation remedies. Accordingly, the risk of employing a minor illegally lies not only in incurring civil penalties and damage to reputation, but also in significant increases for potential personal injury liability.
Don't Get Schooled
Many employers find out about child labor laws the hard way: They get sued for thousands of dollars in civil fines. Don't be one of them. Conduct your own child labor audit and contact the DDOL or your legal counsel if you have any questions about compliance.
Summer means an influx of teen workers for many employers. Teen employees bring with them a unique set of legal issues of which businesses should be aware. Here are some ways to get ready for this year's youth initiative.
Department of Labor
The U.S. Department of Labor (DOL) has published a web page that's loaded with information and suggestions to help employers keep their teen-aged workers safe and to keep themselves in compliance with child labor laws this summer. Not all employers are aware of state and federal restrictions on the activities in which teens are permitted to engage at work. Alert employers will want to review this page, click on the links, and plan the steps they will take to decrease the risk that their teen employees will be injured at work.
The Delaware Department of Labor (DDOL) also has information about state child labor laws available in booklet form. A brief summary is available on the DDOL's website.
Sexual Harassment Awareness
Sexual Harassment Awareness
Employers should also take steps to address the special vulnerability of teen workers to sexual harassment. As an item on this blog noted a few weeks ago, an ABA Journal story reported that the number of teen-aged workers filing sexual harassment charges is on the rise. Teen workers are often part-time or seasonal, and may be in the workplace for the first time. They tend to fall between the cracks when it comes to training. Many restaurants, movie theaters and retail stores have teen-age supervisors and managers as well as workers. Teens tend not to realize that the standard of conduct at work is different from what's permissible in a social setting.
To minimize their risks, employers who hire teen-agers must make a strong effort to educate them (and their supervisors) about harassment, retaliation and workplace safety in a meaningful and understandable way.
Interviews are the usual starting line for pregnancy-discrimination suits and, more recently, FRD claims. I often get questions from clients or seminar attendees about the perils of interview questions. A common theme is why is it that they shouldn't ask candidates about their family, i.e., spouse, kids, etc.
It seems natural. "Oh, I see you volunteer at the North East community center. My kids take swimming lessons there. Do your kids take any classes there?" Heck, I can give you a real-life example that happened to me last week.
I was at the local greeting-card store. As I was checking out, the [female] employee looks up and says enthusiastically, "Do you have any little ones at home?"
I nearly choked on my Lifesaver. I kid you not. (No pun intended, really). I stood there, mouth open, speechless.
She turned around and grabbed a toy Schnauzer from a counter lined with little stuffed animals. "You get one of these for free for a purchase of $20 or more." I lifted my chin off the ground and nodded while she stuffed the toy toy (ok, pun intended) into my shopping bag.
The employee was probably all of 23 years old. She had no intention of forming opinions of me based on my answer to to her question. She was just trying to give me the free toy. But the question caught me off my guard.
I can almost guarantee that if you went back to the store and asked her about it, she would have positively no idea who I was--one of many customers she'd seen that night. She certainly would not recall what she'd said to me.
It's that easy. Despite best intentions, it is so easy for an interviewer to ask a question that leads to a lawsuit.
Pregnancy Discrimination, Maternal Profiling, Family Responsibilities Discrimination (FRD), and Mother's Day. A natural combination. You can add one more to that list. Off-limit interview questions.
When I teach seminars about best hiring practices, I usually get at least a few dirty looks when I talk about interview questions that should be avoided. Employers and HR professionals often comment that interviews should be conversational to put the candidate at ease so the interviewer can get to know the "real" candidate. Not a good idea.
- Every candidate that you interview except one is going to be rejected. Remember that. Every candidate except one goes home a loser.
- No one thinks they're a loser. No candidate who made it as far as the interview thinks that they shouldn't get the job. Of course they should get the job!
- When rejected, blame-shifting is inevitable. Do the logic. If they were sure they were hiring-material but they don't get hired, what can be the explanation? Someone else made a mistake. (Namely, you, The Employer).
- The interview becomes the target. Well, what else is there? The candidate had only one face-to-face interaction with The Employer--the interview. Every word, every gesture, every question is analyzed to try to find what went wrong.
Sure, nobody likes a story with a sad ending. But "it's for your own good," ok?
Interviewers (often untrained in employment discrimination) are just trying to make the candidate feel natural and at ease. They want to know whether the interviewee will be a good fit, whether they have the technical skills needed, whether they understand the job's requirements, etc. They aren't angling for prohibited information.
But when a candidate doesn't get hired, every question becomes suspect and the potential starter for a discrimination lawsuit.
For those of you who want to know how to solve this problem, the best way to find out is to attend one of our seminars, especially those on lawful interviewing. For now, I'll say this: Every interviewer at every interview for every candidate should (no, must) use a script of pre-prepared questions. And that script should be the same one used by every other interviewer for every other interview (at least for the same position).
Autonomy in interviewing is a bad idea.
The HRhero.com website says this about the quiz:
Pregnant employees and those returning from maternity leave have rights regarding their employment. Check your knowledge of these rights by deciding how you would handle certain scenarios and then choosing the best answer.
Last month, Adria presented an audio conference on pregnancy discrimination, Pregnancy in the Workplace: Managing FMLA, ADA, and PDA Issues. Adria also co-presented with Bill Bowser another terrific audio conference on pregnancy discrimination, Managing Pregnant Employees. For more information about the conferences, see http://www.hrhero.com/audio/pregnancy/
Maternal Profiling (a subset of Family Responsibilities Discrimination, "FRD"), is employment discrimination against a woman who has, or will have, children. Firing a newly pregnant employee. Interview questions designed to elicit details about child-care arrangements. Just in time for Mother's Day, here are some key points for employers about this type of workplace discrimination.
Profiles of Maternal Profiling
In late April 2008, ABC News aired a piece on World News With Charles Gibson about Maternal Profiling. As a follow-up to the piece, the ABCNews website posted an article called, Are You a Victim of Maternal Profiling, featuring women from Pennsylvania who had personally experienced this type of discrimination.
One woman believed that she was having trouble landing a new job because she was the mother of three. She indicated that interviewers would often ask her outright whether she had any children. She said that one employer told her that it would cost too much in health care.
Can He Ask That?
Can employers ask candidates whether they have children, or whether they have adequate child-care arrangements? The answer is "yes," much to the surprise of many, including many of my HR clients. Some states do have laws that prohibit these questions from being asked during job interviews. But neither Delaware nor Pennsylvania are included among them. So the short answer is, Yes, employers may lawfully ask job candidates about their "family status," including questions about whether or not the applicant has children, is married, etc.
Like Mom Always Said, "Just because your friends jump off a cliff doesn't mean you have to!"
We teach a lot of seminars. We counsel a lot of employers. We answer a lot of questions. And I can say with great certainty that we would never, ever, ever, advise our clients to ask something as foolish as "Are you planning to have children?" to anyone, and certainly not to a potential or current employee!
Just because it's legal doesn't mean it's smart, right? No good can come of these questions. So don't ask them. Just don't do it.
Employers need to plan for the aging workforce—the "gray-haired demographic" is here to stay.
Aging Workforce News (AWN) talks about a newly introduced piece of legislation, the "Incentives for Older Workers Act." The proposed bill is designed to provide incentives and eliminate barriers for older Americans wishing to stay in the workforce longer, and encourage employers to recruit and retain older workers. AWN explains some of the bill's highlights:
The proposed legislation (S. 2933, text not yet available) would, among other things:
Given the statistics on Baby Boomers in the workplace, this law could help employers deal with what Forbes.com calls the "Gray-Haired Workforce." By 2010, the number of workers aged 35 to 44--or those typically moving into upper management--will decline by 19%; the number of workers aged 45 to 54 will increase 21%; and the number of workers aged 55 to 64 will increase 52%. These statistic show that the workforce will include more and more employees aged 45 and over for several years to come. And they're not going anywhere—AARP reports that 79% of baby boomers say they have no plans to retire any time soon.
A preventative workplace violence strategy can be an important best practice. As we've previously discussed in a post about what employers can learn when violence hits close to home, employers also should have a real strategy for the "during" and "after" of a workplace violence incident. One common prevention tool popular among employers today is the Employee-Assistance Provider (EAP). Considered by many to be an effective way to intervene before little troubles become big problems, EAPs have enjoyed increased popularity over the past several years.
The recent settlement by an EAP in a case involving a fatal workplace shooting may shine new light on just how much influence this type of service may have over your employees and how much risk you incur if you don't set clear policies with your EAP. It should put employers on high alert about your EAPs policies on how they address and communicate referrals where violence is an issue.
The shooting in 2003 killed six employees in a Lockheed Martin plant in Meridian, Mississippi. The suit was filed by Erica Willis, the daughter of one of the six victims. The shooter worked at the Lockheed facility for 20 years before the shooting, in which he also took his own life. Willis filed suit not against Lockheed, the shooter's employer, but against Lockheed's EAP, NEAS, Inc.
The suit alleged that some of the employees who worked alongside the shooter had been complaining for months that their coworker had threatened them and used racial slurs in the presence of Black employees. And, a year before the shootings, Lockheed told him that his continued employment would be contingent on completing a counseling program through NEAS.
NEAS referred him to an affiliate, which cleared him to return to work after just three counseling sessions. Later that year, he was attending a mandatory diversity training program when he walked out of the class without explanation. He returned with a shotgun and a rifle.
The suit claims that NEAS, Inc. (the settling party), failed to provide its affiliate with a full background for the referral. Instead, NEAS is alleged to have stated only that the employee had "boundary/communication issues."
This case raises several interesting issues relating to violence at work.
For one, the recent legislation signed into law in Florida, takes on new meaning in this context. The State of Florida has a new law that prohibits employers from banning guns from their property. Cautious employers have clear policies on the presence of weapons on company property, including employees' cars in the company's parking lot. The Florida law that makes such a policy unlawful seems to be an invitation for disaster.
It is also an unusual example in that the employer did not get sued--the EAP and its affiliates were the named defendants. (The affiliate was dismissed early in the case). Usually we counsel clients about workplace violence prevention in the context of suits for negligent hiring, retention, and training, property liability, and even the General Duty Clause of OSHA. But this story evidences a whole new basis for liability if the employer fails to communicate how its EAP addresses employees with a proclivity for violence. It's not so far-fetched to imagine the EAP disclaiming all responsibility on the ground that it was simply following orders and pointing the proverbial finger at the employer who hired it.
And yes, it can happen to you.
Perhaps the single biggest error employers make when it comes to workplace violence is the mistaken belief that it "can't happen to them." Workplace violence is, and has been, in every type of workplace in cities and states across the country. Fatal and non-fatal incidents occur everywhere and can occur at any time. On average, 1.7 million workers are injured each year, and more than 800 die as a result of workplace violence. There are no second chances when it comes to employee safety, so take the initiative to implement preventative practices before it's too late.
Racial discrimination is still a grim reality. Just ask Conective Energy, which has settled a suit filed by the EEOC for $1.65 million. Even in our super-modernized, uber-fast, and always-accessible culture, race-based discrimination has managed to stand its ground despite the changed landscape around it. The Conectiv case is a discouraging testament to this often invisible fact.
The Equal Employment Opportunity Commission (EEOC) filed the suit on behalf of four African-American workers against Conectiv and three subcontractors. The claimants worked at the now-defunct Bethlehem Steel site in Bethlehem, Pennsylvania. Connective was the contractor building a gas-fired power plant at the site.
The claims of race discrimination are disturbing. The workers alleged that they were subjected to racially derogatory comments such as "black men can't read or write" and "I think everyone should own one." But the harassment didn't stop with workplace commentary. There was graffiti on the site that included "I love the Ku Klux Klan" and "if u not white u not right." And, in the ultimate display of racial animus, a noose, made of heavy rope, was hung from a beam above on the of the men's work area. The noose was not removed for at least 10 days, according to the Complaint.
Conectiv will carry the heaviest payment in the settlement. It is charged with a $750,000 tab, while the other three defendant-subcontractors, will pay $450,000, $250,000, and $200,000 each. As is standard (and non-negotiable) in settling with the EEOC, the defendants must Revise and edit their anti-discrimination policies, provide anti-discrimination training, and post a notice at all job sites setting forth the basis for the suit and subsequent settlement. The consent decree also provides that it does not constitute an admission of any wrongdoing by any defendant.
Racial harassment cases at the EEOC have surged since the early 1990s from 3,075 in Fiscal Year 1991 to nearly 7,000 in FY 2007. In addition to investigating and voluntarily resolving tens of thousands of race discrimination cases out of court, the EEOC has sued more than three dozen employers this decade in racial harassment cases involving nooses.
Terrence Cook served as the Supervising Trial Attorney and Mary M. Tiernan as Program Analyst on behalf of the EEOC.
EEOC's Press Release, May 5, 2008
As usual, Mark Toth, at the Manpower Employment Blog is on top of the latest headlines.
Workplace Theft requires employers to respond quickly and effectively. Of course, the best tool is prevention. Employers should implement be aware of the best practices for preventing theft in their organization. But, if a theft should occur or a complaint of theft is reported, employers must be prepared to react using predetermined standards and guidelines to ensure consistency and avoid liability.
The Delaware News-Journal is reporting the arrest of a manager of a local Wendy’s restaurant for allegedly taking $1,800 from the till.
Employee theft has been and will probably always be a problem. Recent estimates indicating that it costs U.S. employers anywhere from $4 billion to $40 billion per year.
So what's an employer to do? How do you prevent — or at least control — employee theft? Our friend, John Philips, at The Word on Employment Law Blog, suggests the following:
- 1. Watch for telltale signs like an unexplained rise in an employee's living standards.
- 2. Hire people you can trust through the use of good background checks.
- 3. Make it hard to steal by careful supervision, the use of commonsense procedures and controls, and routine auditing.
- 4. Partner with employees to create an environment in which reporting theft is a job responsibility.
- 5. Give alternatives to stealing by providing employees with assistance when they get in a real bind with heavy medical expenses and the like.
- 6. Establish clear written policies on ethical behavior to be signed by each employee and to be enforced consistently, no matter the employee's position.
Once theft is suspected, John suggests the following to avoid a defamation action by the accused employee:
• Thoroughly consider the source and validity of any information that alerts you to potential theft.
• Obtain as much information or evidence as you can find about the alleged theft before you take action.
• Review all policies that govern this kind of situation to make sure you're following them.
• Don't speculate about what the facts could be; find out what they are.
• Consider what you have done with employees in similar situations to be sure that consistency is being applied.
• Consult legal counsel to make sure you're on solid legal footing before taking action.