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Monthly Archives

April 2010

EXECUTIVES CAN BE THE GREATEST RISK

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Having the wrong executive in the wrong spot might create a legal problem, as well as a business headache. In the California appellate case Align Technology v. Bao Tran, Align sued a former employee, attorney Bao Tran, for stealing their patents and starting a competing law firm. The suit alleged that Tran used confidential information to assist a startup competitor and fund an unauthorized law practice on the side. According to the allegations, Tran used company funds to apply for patents in his own name and for his clients, ran his side business using the company’s phones and computer systems, and misappropriated company property by applying for patents in his own name. Align allegedly learned of Tran’s side business as the result of at least 13 phone calls from his clients, including one call in June 2005 from an individual who indicated that Tran had been his company’s intellectual and patent attorney for three years. Tran denied these allegations and accused Align of defaming him and attempting to undermine his new business.

Bottom line: Don’t assume that your executives aren’t a problem. Many companies focus on rank-and-file employees, even though executives can cause 10 times the damage.

To read the case, click here.

MIXED MOTIVES

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In an appeal from a Los Angeles County case, Wynona Harris alleged that the city of Santa Monica terminated her job as a bus driver because she was pregnant. The city submitted a wealth of evidence regarding the plaintiff’s poor performance on the job, including excessive absenteeism and tardiness. The legal issue involved is the “mixed motive”� defense. The trial court refused to give an instruction that would have allowed the city to argue that it couldn’t be held liable because even if there were discrimination, Harris would have been fired anyway. In reviewing the jury instruction, the appellate court reversed the trial court and stated that the following instructions should apply:

“If you find that the employer’s action, which is the subject of the plaintiff’s claim, was motivated by discriminatory and non-discriminatory reasons, the employer is not liable if the employer can establish by a preponderance of the evidence that its legitimate reason, standing alone, would induce it to make the same decision.”

The court sent the case back to trial using the revised jury instruction; it’s up to the jury to determine whether the alleged reason for the plaintiff’s termination was legitimate or, in fact, a pretext for actual discrimination.

To read the case, click here.

KEEPING COMPLAINTS CONFIDENTIAL

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In a Second Circuit case, Karen Duch sued the State of New York for sexual harassment. Duch, a court officer at the Manhattan Midtown Community Court, spoke with a manager who was also an EEO liaison about ongoing harassment. Duch told the manager, “I’m telling you as a friend;” when asked if she wanted the harassment reported, she responded “Absolutely not.” Because of this request and despite her EEO responsibilities, the manager did not report the harassment to anyone. In ruling against Duch, the court stated several conclusions that employers should consider:

  • When harassment comes from a co-worker, rather than a supervisor, the employer is held liable only if it fails to provide a reasonable avenue for complaint or to take appropriate remedial action about a problem they know of.
  • In this case, Duch had reasonable avenues of complaint, despite the fact the EEO liaison was poorly trained and failed to report her complaints to anyone. Duch acknowledged she could seek assistance from at least five different sources, in addition to the manager.
  • Also at issue was the question of whether her manager’s failure to react could be imputed to the company. The court reminded us this would be the case when: (a) the official is at a high enough level of management to qualify as a proxy for the company; (b) the official has a duty to act on the knowledge and stop the harassment; or (c) the official has a duty to inform the company of the harassment. The court held that in this case, the manager did not breach her duty to remedy the harassment because she honored an employee’s request to keep her complaint confidential. The court also ruled that the conduct had not reached the point that a manager simply cannot stand by, even if requested to do so by the employee.
  • Unfortunately for the employer, there was another higher-level executive, whose knowledge of the complaints was imputed to the employer. The court stated that when an employee’s complaint raises the specter of harassment, a supervisor’s purposeful ignorance of the nature of the problem would not shield an employer from liability under Title VII. This holds true even where the executive never learned about, and did not witness, the alleged harassment.
  • In light of their ruling that a jury could find that there was knowledge of the harassment when Duch requested a schedule change from another manager, a jury could also find that their response was unreasonable. A formal investigation of the complaint did not begin until three months later.

Lesson learned: Be very clear about what you want your managers to do when they suspect or know about wrongful conduct:

  • What should they do if they know about it but nobody complains?
  • What should they do if somebody complains to them, but asks them not to say anything?
  • What should they do when things gets so bad that they should say something despite the employee’s request?
  • How should they approach someone about what they might suspect is harassing conduct? Should they say something like, “Is Bob harassing you? Should I speak to the EEO about this? If you want me to keep it confidential I’m going to write this down to protect the company and myself. If you feel you need help, bear in mind that I’ll always report it to a proper superior or you can go directly to that person without involving me if you want to.”

As always, we recommend that all HR That Works members use the Employee Compliance Survey every six months. If the company had done so in this case, it could have avoided the second-guessing and engaged in appropriate conduct. To read the case, click here.

SEX STEREOTYPING

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Brenna Louis v. Harlan Inns, a Federal District court case in Iowa, involved a unique set of facts. To make a long story short: An admittedly “masculine looking,”� yet productive woman was not considered “front desk material”� for the Harlan Inn, according to one (female) manager who insisted on front desk clerks coming as close to the perfect “Midwest girl”� image as humanly possible.

The court, relying heavily on the U.S. Supreme Court case Oncale v. Sundowner (1988) stated that the plaintiff’s dismissal and harassment “was because of her sex.” According to the court, “The question is whether [the managers’] requirements that Louis be “pretty” and have the “Midwestern girl” look is because she is a woman.”

Interestingly, the chief judge dissented. He likened the hotel’s actions to declining to hire a female cheerleader because she isn’t pretty enough or a male fashion model because he isn’t handsome enough. The other justices disagreed, arguing that the employer is responsible for proving the affirmative defense that physical appearance is a bona fide occupational qualification (which they could not).

Editor’s comment: One can easily see the arguments on both sides. If I don’t like the way someone looks, I don’t have to work with them, whether I have one employee or 5,000. On the other hand, ther’s the argument that we’ve progressed past the place of permitting discrimination of any kind without a real business justification. Enforcing this level of tolerance or acceptance is always difficult at best. Of course, there’s a proper balancing point someplace. Here’s the case link.

The bottom line: If you’re aiming for a specific “look in employees,”� you might face a lawsuit. A well-known California case involved a manager saying that one of the L’Oreal cosmetic girls wasn’t pretty enough. The fact that she complained about this as a discriminatory remark eventually resulted in her filing a wrongful termination retaliation-based claim.

RUDE BOYS

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The Alabama Federal District Court case, Reeves v. CH Robinson Worldwide, offers a significant guide to sexual harassment workplace issues. Plaintiff Ingrid Reeves began working as a transportation sales rep in the company’s office. She was the only woman. Reeves alleged that sexually offensive language permeated her work environment every day (To read a complete collection of crude language, review the facts of the case). This rude behavior continued despite complaints to co-workers and management. What’s more, an offensive radio program played in the workplace every day.

Reeves resigned and filed a complaint alleging that the sexually offensive language and radio show created a hostile work environment that violated Title VII. The trial court entered a summary judgment for the company on the grounds that because men and women were subject to the same language, the harassment was not “based on” Reeves’ sex

She appealed, claiming that simply because she was not the target of the harassing language did not determine whether there was a hostile work environment. The appellate court agreed, ruling that “sex-specific profanity” is more degrading to women than men, and that a workplace permeated with discriminatory intimidation, ridicule, and insult satisfied the “based-on”� element required to support a sexual harassment hostile environment case. The court based this conclusion in part on parallels with race discrimination cases.

After analyzing the frequency and severity of the problem, the court held that the evidence provided could lead a reasonable jury to believe that the harassing conduct need not tangibly affect an employee’s job performance to be actionable. The court added that, “Ordinary tribulations of the workplace, such as the sporadic use of abusive language, gender-related jokes, and occasional teasing does not satisfy the severe or pervasive element required for a claim.”

Lesson learned: Beware of employees entering a traditionally male or female role at your company. Once this happens, the rules do in fact change!

To read the case, click here.

WORKPLACE VIOLATIONS IN LOW-WAGE LABOR MARKETS

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An extensive survey of more than 4,000 low-wage workers in Los Angeles, Chicago, and New York City by the National Employment Law Project (NELP) reached these conclusions:

  • More than one in four workers surveyed (26%) were paid less than minimum wage.
  • Among these workers, 16% were underpaid by more than one dollar per hour.
  • More than three in four (76%) workers who worked overtime were not paid for their time. The average worker had put in 11 hours that were either underpaid or not paid at all.
  • Women and foreign-born workers were victimized more than anyone else.
  • The average wage theft was 15% of earnings.

Additional violation categories included:

  • Off-the-clock
  • Meal breaks
  • Pay stubs
  • Illegal deductions
  • Tips
  • Illegal employer retaliation
  • Workers Compensation violations

It is hard to balance this economic suffering with the fact some executives are making tens of millions of dollars during a failing economy. You don’t have to be of any political persuasion to realize that something’s out of whack. Not only do these employers deprive good people of a fair day’s pay, they’re also at war with companies who strive to grow their business the right way; perhaps even going above the call and actually empowering their workers rather than oppressing them. If we can fight overseas to assure basic human rights, we should be able to do the same here.

For more information on the survey, click here.

PRESENTING FOR RESULTS

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Effective human resource or other executives must be able to communicate to an executive group, a prospective employee, or business partner. To make sure that you’re communicating effectively, follow these guidelines:

  • Tell a story. People love stories. Stories have a beginning, middle, and end.
  • Don’t engage in death by PowerPoint. Too many presenters overwhelm their audience with far too much information in their PowerPoint. It’s called PowerPoint, not PowerParagraph. Don’t have more than three bullet points on any slide. Don’t use entire sentences, just a snapshot of the point to be made. Even better, see how just one picture can express many words. An excellent book to consider is Presentation Zen by Garr Reynolds.
  • Begin logically and end emotionally. Move from the left side of the brain to the right side. Give people powerful information and the emotional why� for applying it.
  • Less is more. Sometimes it’s better to communicate from a single page of bullet points than from an extensive handout. You can always make more information available later on.
  • Ask powerful questions. What can you ask that would be thought provoking? What questions keep your audience up at night? What questions will develop a rapport with your audience immediately?
  • Get feedback regularly. Be sure that your audience understands your point. Do they agree with you? For example, after making a point, superstar presenter Tony Robbins will ask the audience to say “Ay”in unison to help reinforce the point just made.
  • Wrap it up with action items. Identify the actions that you and your audience should take next. Give them a form or checklist to apply the information shared in your presentation.

Follow these presentation essentials and you too will do a great job of communication.

To learn more about presentations, see our Form of the Month: Powerful Presentation Techniques.

AVOID HIRING DISCRIMINATION CLAIMS

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To help protect yourself against discrimination claims in the hiring process, we recommend that employers answer these questions developed by the California Case Analysis Manual:

Discrimination

Did the respondent fail to select the complainant because of the complainant’s protected status (race, sex, etc.)?

Relevant Questions:

  • Did the adverse action (failure to select) actually happen?
  • Is the respondent’s claim that the complainant is less qualified than the person selected accurate?
  • Is any other rebuttal asserted by the respondent valid?
    • Is the respondent’s reason for not selecting the complainant factually accurate?
    • How did the respondent treat others in a similar situation as the complainant?
  • Does the respondent’s application of its pre-selection procedures to similarly situated persons indicate that the failure to select occurred because of the complainant’s protected status?
  • Does the relevant statistical pattern indicate that the failure to select occurred because of the complainant’s protected status?
  • Is there any direct evidence to link the failure to select to the complainant’s protected status?
  • Is there any anecdotal evidence to link the failure to select to the complainant’s protected status?

EDITOR’S COLUMN: POSITIVE DISCIPLINE

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I recently finished the Positive Discipline for Parents course by Jane Nelsen. I would recommend this program to any parent. I’ve already raised two sons who are great young men at 29 and 31. Now I’m blessed with an eight year-old and I remain motivated to be a great parent.

Having “been there and done that” just isn’t good enough. Odds are, by listening to the discipline course and applying it, I’ll become that much better.

Much of the course centers on leadership and discipline. We’re instructed to be “kind, but firm,” to focus on encouragement and engagement rather than punishment or reward. Finally, we learn how to deal with poor behavior: How to react or more importantly, how not to react to create promises, mutual agendas, and consequences.

Here’s a fact: There’s no substitute for continually improving yourself as a parent, executive, manager, or employee!

I know every one of you is running 75 miles per hour. Trust me, I run pretty hard too, but I’ve learned that when I take care of myself and feed my body, mind, and spirit, I become a far more energetic, effective, and likeable person.

In the end, the greatest discipline must be to doing my best, all the time.