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by Jewel Bennett on Oct 5, 2009 at 11:26 AM

employment lawyer recommends proceeding with caution on management behaviorIn Anderson v. Family Dollar Stores of Arkansas, Inc., the Eighth Circuit Court of Appeals closely followed the US Supreme Court's direction that Title VII is not a "general civility code for the American workplace."   Employers can take comfort in the high standard courts have set regarding bad behavior in the workplace, but a company that wants to remain an employer of choice will hold their management team to a much higher standard.   Bottom line, if one of your managers is a jerk, you should demand a change in behavior or show him or her the door.

The plaintiff in Family Dollar Stores started work as a manager trainee for Family Dollar. She was fired after her first day. She complained to HR and met with the district manager. During her meeting, plaintiff claims that the district manager talked about very personal things, such as her hair, eyes, and marital status. Plaintiff was rehired and placed in a five-week training program. During the district manager's contact with plaintiff, which was once a week for approximately an hour, plaintiff claims that the district manager was physically inappropriate towards her and insinuated that he could control her future in the company.  

At the end of her training period, plaintiff was assigned to a store as manager. During the first week she made phone calls to the district manager for assistance. At one time, the district manager, who was in Florida at the time, told plaintiff that he felt she should be with him.  Another time, the plaintiff claims that the district manager called her "baby doll."

Several months after plaintiff was hired, the district manager came to the store and plaintiff addressed all of her problems with her employees. She also told him they needed to prepare the appropriate paperwork for her back pain because she was forced to unload the truck by herself.  The district manager's demeanor worsened and he grabbed plaintiff and told her he thought she was no longer willing to be a team player.  He then fired plaintiff.

Plaintiff did not report any of the harassment to HR and even though she wrote an email to HR after her termination, she did not include the sexual harassment. She first mentioned the sexual harassment in her EEOC complaint. The district court granted Family Dollar's summary judgment, finding that plaintiff's allegations were not so severe as to alter a term, condition, or privilege of her employment. The Court of Appeals agreed. The Court stated that although White's conduct was ungentlemanly and inappropriate, Title VII is not a "general civility code for the American workplace."

Sure, the district manager's conduct was not harassment under Title VII, but to create a more productive work environment, employers should not allow this type of conduct in their workplace.  It is much easier to be civil than sorry. 

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by M. McClure on Aug 20, 2009 at 4:09 PM
Filed in ADEA | Discrimination

Image of ticking clockHere's an employment lawyer's worst nightmare:  the CEO for your favorite client asks you to draft employment claim waivers for an upcoming reduction in force.  For some unexplained reason, you fail to include any reference to the Age Discrimination in Employment Act in the waiver.  The ADEA does not even cross your mind until the last signed waiver arrives on your desk.  AAAUGHH - you wake up in a cold sweat.

Fortunately, the courts and the EEOC have provided ample direction for attorneys drafting waivers of employment claims.  I will be speaking on reduction in force issues at the Arkansas SHRM Employment Law and Legislative Affairs Conference in October, and in preparation, I'm reviewing the DOL's recent guidelines for enforceable ADEA waivers.  Here are some highlights:

  • The waiver must be written in language that would be understood by the employee based on his or her education and business experience.
  • The waiver must refer to the Age Discrimination in Employment Act by name.
  • Employees must be advised in writing to consult with an attorney prior to signing the waiver.
  • For an individual layoff, an employee must be given 21 days to consider the waiver.
  • For a mass reduction, the employees must be given 45 days to consider the waiver.
  • All employees over 40 who sign a waiver can revoke their acceptance within 7 days of signing the agreement.
  • A waiver must be supported by consideration in addition to that which the employee is already entitled.
  • Here's the hard part:  where a group of employees is being released, the waiver must provide information to employees over 40 regarding the "decisional unit," which is the group of employees from which the employer chose the employees who would be discharged.  The employer must disclose the eligibility factors for the program, the time limits of the program, and the job titles and ages of all employees who are eligible and ineligible for the program. 
Remember that some rights can't be waived, including the right to file a charge with the EEOC, future claims, claims or benefits that arise under unemployment compensation, workers compensation, the Fair Labor Standards Act, health insurance claims under COBRA, and vested benefits under a retirement plan governed by ERISA. Nonetheless, an employer can significantly reduce legal risk by seeking waivers as part of a reduction in force.  And, waivers will help you sleep better. 

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by M. McClure on Jul 26, 2009 at 4:56 PM
heat heats up sexual harrassment complaints in ArkansasJuly in Arkansas is hot.  As the days get longer and ties get loosened, employers find themselves responding to more complaints of sexual harassment. The good news for business owners and HR professionals is that it is much easier to handle an harassment complaint then, say, a wage and hour class action.  

The law requires an employer who receives an harassment complaint to perform a prompt, thorough and impartial investigation and to stop the harassing behavior. Everything gets a little trickier if a supervisor is accused, but in many cases, an harassment complaint can be put to rest with an investigation and appropriate disciplinary action.  To help ease your summer workload, here's a round-up of solid investigation and harassment policy advice.  Take care of that complaint today, and get out to the lake!

EEOC's Enforcement Guidance on Harassment by Supervisors
. Check out section 1. e. regarding how to conduct an investigation.  

Workplace Investigations: Don't Forget to Communicate with the Complainant

Are Your Investigations Unbiased?

Remedial Action Must be Meaningful to Save Employer from Harassment Liability

Where There's Smoke, There's Not Always Fire

Suspended With Pay - A Call to Get the Investigation Done Quickly, Unless You Work for the Government....

Employee Handbooks: Anti-Harassment Tip Sheet

Text Message Harassment - No LOLing Matter

Text Harassment?

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by M. McClure on Jun 30, 2009 at 4:35 PM
The press is unusually interested in an employment law case the US Supreme Court released on June 29, 2009, Ricci v. DeStefano, et al.  While it's an important employment decision, the case received extra attention because Supreme Court nominee Sonia Sotomayor was part of the three-judge panel that was technically reversed by the Supreme Court. Linda Greenhouse of the New York Times does a good job of sorting out the political implications of the case, but aside from all the political heat generated by the case, can employers find any light?  

In a nutshell, Ricci is a case of a promotion exam gone bad. The City of New Haven Connecticut instituted an exam to determine who among its firefighters should be promoted. The City went to great lengths to ensure that the test was fair to all applicants, but the test results clearly favored white applicants.  Faced with the serious possibility of litigation from minority applicants, the City threw out the test results.  For its trouble, the City was sued by the white firefighters who wanted the test results to stand. The Supreme Court ruled in favor of the white firefighters, finding that the City threw out the exam "because of race," and that the threat of litigation from the minority firefighters did not meet the new "strong basis in evidence" test that the court established with this case.

So what does this mean for employers?   Daniel Schwartz of the Connecticut Employment Law Blog posted a thorough analysis of what the Ricci case means for employers.  The most worrisome prediction that Schwartz sets forth is his warning that employers should now proceed with caution when conducting a disparate impact analysis for reductions in force.  Employers routinely have legal counsel determine if a reduction in force will impact any protected group more than whole of the employee population.  After this review, employers often adjust their selections to avoid legal risk. Schwartz suggests that this practice may now be discriminatory under Title VII, and I think he's right. Cue the scary music....  

Bottom Line:  An employer contemplating a reduction in force should work very carefully in establishing the selection criteria for the reduction because once the criteria has been applied, Ricci may not allow an employer to change the results because one protected group is significantly impacted.  Using criteria that is based on objective performance measurements and clear business objectives is a good start.  The reduction of entire departments or functions would also allow an employer to reduce headcount without tripping on to new legal risk.

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