Some guidance for dealing with office romances

Good Morning America this morning posed the question, "Office Romance: Is It Worth It?" GMA gives some tips for employees thinking about getting involved with a co-worker. I'm going to discuss several of them, from the employer's perspective:

1. Check the company policy. If your organization does not want co-workers dating each other, it is best to have a formal, written no-fraternization policy in place. Such policies can have a range of restrictions, depending on how strongly your company feels about intra-office relationships. The scenario that creates the greatest risk if a relationship goes south is a subordinate dating a manager or supervisor within the direct chain of command, or an executive. You should consider either prohibiting those relationships outright, or requiring full disclosure to HR with a signed writing by both parties stating that the relationship is consensual. For reasons that should be obvious, I prefer the former over the latter, but ultimately it is an organizational decision. Regardless, if you plan on disciplining or termination an employee for engaging in such a relationship, you best have a policy in place prohibiting the conduct that you can rely upon to support the decision. Any discipline, however, must be meted out fairly and equitably. The surest way to a discrimination lawsuit is to discipline one party to the relationship but not the other.
2. Keep e-mail clean. Employees generally should not have any expectation of privacy in corporate e-mails or internet usage. To be clear, it is best to have a formal written policy spelling out your company's expectations about appropriate computer usage. And again, it is largely an organizational decision. Some companies do not mind reasonable computer use for personal business at work, so long as employees are getting their work done and not abusing the privilege. Others want 8 hours of work every day, with no distractions. Regardless, computer usage must always be appropriate, and inappropriate usage (dirty e-mails, pornography, etc.) must be dealt with quickly.
3. Consider your colleagues and keep it professional. Courts are split as to whether employee favoritism as a result of a consensual relationship between two employees can create a sexual harassment cause of action for an uninvolved but negatively affected co-worker. For example, the California Supreme Court has recognized such a claim, while the Seventh Circuit has rejected it. This uncertainty in the law presents some risk for employers. The best risk management would be a blanket prohibition on all office romances, although some companies do not want to be that draconian. The next best practice is to put a policy in place that expresses your organization's protocol for office romances, uniformly apply that policy, and promptly investigate any complaints of harassment that stem from office romances or otherwise.

There is no such thing is a teflon employer. Employees can sue you at any time, and these days for just about any reason. The best you can do is have policies that match your organizational style, uniformly and neutrally apply those policies, and make the best business decisions that you can in the given circumstances. While these steps cannot prevent against a lawsuit, they will put you in the best position to defend against one if it is filed.

A little self promotion

I encourage everyone to check out this week's Carnival of HR hosted by The HR Capitalist, one of the truly excellent HR blogs. Kris has graciously linked to my post from a few weeks ago on Abdulnour v. Campbell Soup Supply Company and the importance of documenting performance issues.

If you want to stay on top of these posts, the best way to do it is by subscribing to my feed. I've made it easy for you by giving you two ways to have my musings delivered -- either in a reader (I'm partial to Google Reader), or by e-mail delivered to your inbox every time I post. I also encourage everyone to check out all of the links in my blogroll. The employment law and HR blogging community is flourishing, and all of the blogs listed have something worthwhile to read almost every day.

GO TRIBE

(with insincere apologies to any readers I may have in Boston)

Happy Boss's Day

Today is National Boss's Day. I was planning on writing a long post detailing the history of this important holiday, noting that it was first celebrated in 1958 by Patricia Bays Haroski, a State Farm employee who chose October 16 because it was the birthday of her boss, who also happened to be her father. I was going to remind everyone that the best bosses follow the golden rule -- treat your employees as you would want to be treated, or you would want your spouse, or child, or parent to be treated -- and that if more bosses followed this rule, 90% of employment lawsuits would never get filed.

Instead, let's all commemorate this day with the world's greatest boss, Dunder Mifflin's Michael Scott. Happy Boss's Day everyone.

6th Circuit affirms importance of an objective plan to support a reduction in force

It is always so refreshing when a court provides a nice, neat summary to explain its decision in a case. So, when you read the following introductory paragraph from today's 6th Circuit decision in Blair v. Henry Filters, Inc., you might be inclined to think there is no need to read any further:

When a fifty-seven-year-old's direct supervisor taunts him as "the old man on the sales force," removes him from a profitable account because he is "too old," and tells another employee he "needs to set up a younger sales force" before terminating the employee, can the employee's age-discrimination claim survive summary judgment? We believe it can.

The key facts in Blair are few. Blair, 57 years old at the time of his termination in August 2003, worked for Henry Filters, an industrial manufacturer, in 1986. In 2000, John Tsolis became Henry Filter's VP of Sales and Blair's immediate supervisor. Tsolis called himself as "The Terminator," a self-referential nod to his love of firing employees. Blair claimed that in the years leading up to his termination, Tsolis made ageist remarks about him, such as calling him "the old man."

The company, after suffering some financial hardship, between 2001 and 2003, reduced its workforce by terminating 67 employees, out of which 24 were not replaced. That reduction in force lacked a clear plan for its execution. The Court described it as "chaotic, occurring in fits and starts." In August 2003, without explanation, Tsolis notified Blair that his employment was terminated. At the same time, Henry Filters also terminated the employment of a 37-year-old salesperson and a 39-year-old secretary. A few months prior, Tsolis was overheard saying that he needed to set up a younger sales force, although he had no referred to anyone by name. After Blair's departure, a 42-year-old current employee assume his responsibilities for about four months, after which it hired a man in his twenties for a sales position, although there was no evidence of whether than person took over any of Blair's former sales territories. The Court first concluded that the district court correctly concluded that Blair had not presented any direct evidence of age discrimination. The ageist comments he attributed to Tsolis were either not related to the termination decision, or lacked a connection between Tsolis's desire for a younger workforce and Blair's termination.

Notwithstanding the lack of direct evidence of age discrimination, the Court found that the trial court erred in dismissing the age claim. Even though the alleged ageist comments were attenuated in time from the termination decision and not directly tied to the decision to terminate Blair, the Court found that they nevertheless were sufficient circumstantial evidence the Henry Filter singled out Blair for discharge because of his age. The Court also relied heavily on the lack of an objective plan for the reduction in force, noting that "a lack of evidence regarding a company's objective plan to carry out a reduction in force is a factor that might indicate that an alleged reduction in force is pretextual."

There are two key issues worth some discussion. First, there is no reconciliation by the Court of ageism, on the one hand, versus the inclusion of a 37-year-old comparable in the RIF. Secondly, the Court seems to blur of the required showing for a prima facie case and pretext in a reduction in force context. The Court relies on the same exact evidence to conclude that a genuine issue of material fact exists for the 4th element of Blair's prima facie case (i.e., whether there is additional evidence tending to indicate that the employer singled out the plaintiff for discharge for an impermissible reason) and pretext. It appears that if a genuine issue of material fact exists on the 4th prima facie element, the same will hold true for the issue of pretext. Thus, in RIF cases, the Court seems to have eliminated the pretext analysis, putting it all up front in the prima facie showing. At the end of the day, it may not make a difference, since in a RIF case the employer's legitimate non-discriminatory reason (the RIF itself) is self-justifying, and it is always the employee's burden to overcome that reason and prove that it was a discriminatory reason that motivated the discharge. In other words, the battle front is whether the plaintiff was legitimately included in the RIF, and it doesn't much matter through which hoop one makes the plaintiff jump in meeting that burden.

The Blair decision also importantly highlights the need for written objective criteria in carrying out a bona fide reduction in force. Ideally a RIF should be carried out with severance payments in exchange for signed releases, but that is not always the case. Economic or other realities sometimes make severance payments impractical, and some employees would rather take their chances in court than sign a release. All RIFs should be designed and implemented with the understanding that the selection criteria may have to be defended in court. As Blair illustrates, that defense is more difficult without objective criteria as to who stays and who is RIFed. As always, these programs are best designed, or at a minimum reviewed, by employment counsel.

Mandatory maternity leave does not qualify flight attendant for unemployment

Unemployment cases do not usually grab my attention. Continental Airlines v. Peters, however, did. April Peters was a flight attendant for Continental Airlines, a union employer. Continental's collective bargaining agreement has a provision under which a pregnant flight attendant is placed on mandatory maternity leave at the end of her 27th week of pregnancy. Apparently, that provision is consistent with FAA regulations forbidding flight attendants from flying past their 27th week of pregnancy. During that maternity leave, the flight attendant accrues all seniority, is eligible to use accumulated sick leave. The contract also permits the flight attendant to elect a one-time 12-month maternity leave following the birth. Peters became pregnant, and Continental, consistent with the collective bargaining agreement, placed her on maternity leave at the end of her 27th week of pregnancy. Once on the mandatory leave, Peters filed a claim for unemployment compensation benefits. Along with her application she submitted a doctor's note stating that she was able to work full-time and that she had not been advised to quit her job.

The unemployment commission awarded Peters benefits. The court of appeals, however, affirmed the trial court's reversal of that decision. The issue before the appellate court was whether Peters was "involuntarily" unemployed and whether she could waiver her right to unemployment benefits through the collective bargaining agreement. Peters argued that she was involuntarily unemployed because she was willing and able to continue her job beyond the 27th week and that she could have performed some other task for the remainder of her pregnancy. Continental, on the other hand, argued that Peters' union membership voluntarily subjected her to the terms of the collective bargaining agreement, including the maternity leave policy.

The court was unpersuaded by Peters' argument that her willingness and ability to work rendered her separation involuntary:

Peters' physical ability to continue working after her 27th week of pregnancy is immaterial to the question of whether she waived the right to unemployment benefits by virtue of a collective bargaining agreement. The terms of the maternity leave policy are clear.... Although Peters might have been physically capable of performing, and willing to perform, her duties as a flight attendant after the 27th week of pregnancy, her voluntary agreement, via the collective bargaining agreement, to the terms of the maternity leave policy makes these facts irrelevant.

Instead, the court believed that Peters', through her union, waiver her right to unemployment benefits:

As a union represented worker, Peters is a party to the collective bargaining agreement. As such, she agreed to stop flying after the 27th week of pregnancy in exchange for the accrual of seniority while on maternity leave, continued coverage under Continental's health insurance plan for the duration of the leave, the option of using sick time during the maternity leave, and full reinstatement at the end of the maternity leave..... These contract terms were reached as a result of arms-length negotiations between Continental and Peters' union, so Peters validly waived the right to unemployment compensation benefits.

The court distinguished between an arms-length, bargained for collective bargaining agreement and a unilaterally imposed policy, such as a retirement plan. The latter, the court reasoned, might render the separation involuntary.

What I find most interesting in the opinion, however, is the following throwaway line by the majority: "While is is not an issue in this case, we share the dissent's concern that there may be legal questions relating to the interplay of the collective bargaining agreement and the Pregnancy Discrimination Act ... and other potentially applicable federal or state laws." While I appreciate the court's concern that a paternalistic maternity leave policy might violate the pregnancy discrimination laws, the issue has long been settled that employers can implement leave of absence policies for legitimate safety reasons. Moreover, it does not appear that the airline harbored any discriminatory intent -- it allowed the accrual of seniority during maternity leave, provided continued health insurance coverage, gave an option for the use of sick time, guaranteed full reinstatement, and offered a 12-month postpartum leave of absence. Any claim for pregnancy discrimination would have to test the veracity of the airline's lack of available light duty. Provided, though, that there genuinely was no light duty available for Peters, I do not see any viable discrimination claim based on the mandatory, bargained-for leave of absence.

What else I'm reading this week #1

Several worthwhile links to pass along to everyone on this Friday.

The HR Capitalist has an interesting post on the 27 hospital employees suspended for one month without pay for looking at George Clooney's medical records. He comments (and I concur) that companies gather a lot of medical information on employees, all of which is governed by HIPAA and the ADA. While everyone is doing that wage and hour audit I've been suggesting over the past couple of weeks, you might as well audit personnel and medical files to ensure that no medical information is contained in personnel files and that access to medical files is limited to a strict need to know basis.

The Pennsylvania Employment Law Blog has an informative post on the 5 things every HR generalist should know about the National Labor Relations Act.

Finally, on a topic near and dear to my heart, the Connecticut Employment Law Blog advises on appropriate blogging policies for your employees. If you are unaware of all of the ways your employees can have an on-line presence writing about your company, check out A Trial Lawyer's Guide To Social Networking Sites on the Deliberations Blog. It's a great introduction to blogging, social networking, and microblogging. The best way to control (to the best you can) your employees' off-work on-line activities is to have a clearly defined policy that outlines your business's expectations for on-line speech.

And Go Tribe!