When office romances go bad

I've previously given some guidance for companies on dealing with office romances. This week's Business Week Magazine covers the same topic from a cautinary perspective. Business Week cautions, "If you're thinking about hooking up at work, you're looking for love in all the wrong places." The article explains:

The odds against an office romance succeeding are just slightly better than what you'd find at the worst casino in Las Vegas. When you lose at roulette or keno, though, you're out only a couple of bucks (if you're smart), and that's the end of it. When you lose the game of love at the office, you still have to face the other person day after day. That constant reminder of a relationship that didn't work out is a painful burden to bear, and it can affect how well you are able to do your job, which is the main, if not sole, reason we're employed in the first place.

On this Valentine's Day, I thought I'd pick up the theme from the Business Week article and take a look at an example, courtesy of the 7th Circuit's decision in Benders v. Bellows & Bellows, of some of the problems a company might face when an office romance goes south.

Bellows & Bellows is a Chicago law firm that concentrates in, of all things, employment law. The two Bellows, Joel and Laurel, are husband and wife. In 1996, B&B hired Evelyn Benders, an African-American women then in her 40s, as a legal secretary; she was promoted to office manager the following year. Shortly after she started with the firm, Benders started a five-year relationship with Mr. Bellows. Benders remained employed after the relationship ended.

Approximately two years after the break-up, in May 2003, Mr. Bellows privately informs Benders that his wife and another partner were "campaigning to get [her] out" and that she should begin to look for another job. A few weeks later, B&B hired a white woman 10 years Benders' junior who began to take over some her of responsibilities. In February 2004, Benders filed an age and race discrimination charge with the EEOC relating to the new hire and her loss of responsibilities. Attached to her charge were e-mails authored by her former lover referring to Benders as "Seabiscuit" who "should have been put down" long ago, and stating that other African-American members of the office staff were making Benders' employment situation "a racial thing."

After Benders filed the charge, she claims that Mr. Bellows became increasingly hostile towards her and made her working conditions difficult. According to B&B, however, it was Benders who caused problems by becoming disruptive and insubordinate, not actively seeking other employment, and not performing certain job duties. Three days after B&B filed its position statement with the EEOC, Benders alleges that Mr. Bellows told her that because she had filed an "awful EEOC charge" he would not consider paying her any severance.

Five days later B&B finally terminated Benders' employment. According to B&B, Benders was asked to leave because a day earlier she had become hostile with Mrs. Bellows, who subsequently told her husband that she would not come to the office until Benders was fired. Benders' retaliation claim followed shortly thereafter.

Ultimately, the appellate court reversed the trial court's dismissal of Benders' retaliation claim on summary judgment. Specifically, the Court found that Mr. Bellow's comment about her "awful EEOC charge" coupled with her termination five days later created a factual issue on the issue of causation, whether there was a nexus between her EEOC charge and the termination. Also, the Court found enough of a factual dispute on whether Benders was actually under-performing and acting insubordinately.

While the opinion is not clear, it's pretty apparent that Mrs. Bellows knew about her husband's dalliance with Benders and wanted to rid her business of her husband's former lover. Can anyone really doubt that the broken relationship had something to do with Benders' demotion and subsequent termination? This case paints a picture of some of the dangers associated with office romances. The problems in this case were exacerbated by the fact that it involved an executive and a staff member. Relationships between co-workers are less tricky, but still pose their own problems. Because it is not illegal for co-workers to be romantically involved, how a company handles these issues is organizational. But, if a company is going to permit intra-office romances, it is best that it does so with eyes wide open, in tune to the various legal issues that can arise if a romance goes bad, as the Benders case points out.

EEOC targets use of arrest and conviction records

Last year, the EEOC launched it E-RACE Initiative. E-RACE stands for Eradicating Racism And Colorism from Employment. According to the EEOC:

The E-RACE Initiative is designed to improve EEOC's efforts to ensure workplaces are free of race and color discrimination. Specifically, the EEOC will identify issues, criteria and barriers that contribute to race and color discrimination, explore strategies to improve the administrative processing and the litigation of race and color discrimination claims, and enhance public awareness of race and color discrimination in employment.

One barrier that the EEOC identifies as contributing to race and color discrimination is employers' use of arrest and conviction records in hiring decisions. To remove or limit this barrier, the EEOC has set a 3 year goal to "develop and implement investigative and litigation strategies to address selection criteria and methods that may foster discrimination based on race and other prohibited bases, such as ... arrest and conviction records." In other words, the EEOC intends to litigate charges based on arrest or conviction records.

This EEOC initiative sets a dangerous precedent. I've always understood that using arrest records could cause a disparate impact, but that conviction records are fair game in employment decisions. E-RACE signals that use of the latter without a business necessity or job relatedness could also violate Title VII. This policy begs the question of what convictions are related to what job. Certain jobs are no-brainers. Anything with children will automatically disqualify a felon, for example. What about a warehouse worker, though? What is an employer's liability if a violent felon recidivates in the workplace? What about non-violent felons? Do you want a check kiter manning your cash register? These are difficult questions without easy answers. I'd like to give the EEOC the benefit of the doubt on this issue, but when it makes litigation a key cog in this initiative, it makes me nervous for companies that rely on criminal histories in employment decisions. For now, the safest course of action would be to tailor the use of specific convictions to related jobs. Practically, however, I doubt the feasibility of such limits, given the liability issues that swirl around the edges of such hires.

[Hat tip: Human Resource Executive Online]

Penny-wise, pound-foolish employment practices

Rush Nigut of Rush on Business shares some words on wisdom for businesses on doing things right on the front end versus paying a lot more to fix them on the back end. His advice is tailored to general business issues, and it got me thinking about what employers can do proactively in their workplaces to avoid the headaches of litigation and its high costs. It may cost some legal fees up front to have an attorney bring your workplace into compliance, but that cost pales in comparison to what it would cost in legal fees to defend a bad policy or practice in litigation.

1. Review and update handbooks, policy manuals, and forms (such as applications, FMLA forms, background check authorizations, etc.). While the Internet provides a wealth of business resources, using canned materials can be dangerous. One does not know who prepared the materials, if a lawyer reviewed them, and if they were reviewed, under which state's law the review was conducted. Laws change almost daily; it's dangerous to assume that free forms on the web are reviewed and updated that frequently.
2. In this era of electronic discovery, a document retention and destruction program is a must. If documents are destroyed during litigation, even accidentally, it is virtually impossible to explain that destruction to a judge if you don't have a retention policy and a workable litigation hold in place. Lawyers need to be involved early in this process to advise how long to keep documents outside of litigation, and what documents need to be kept when litigation becomes reasonably anticipated.
3. Implement a harassment training program, which includes a basic review of policies for new hires, and comprehensive training for all employees at least once every two years. A quick trip back through my archives will reveal how companies get tripped up by not providing this essential training. In my experience, employees tend to take this issue much more seriously when a lawyer is presenting as opposed to a co-worker.
4. Audit job descriptions and employee classifications for wage and hour compliance. Again, my archives are filled with wage and hour nightmares. Wage and hour litigation has become the hot employment claim for 2007 and beyond. It's naive to think that at some point your company will not have a wage and hour issue to deal with. Better to get your hands around it now than when a class action or the Department of Labor forces your hand.
5. Make sure that all managers and supervisors properly document all performance problems. This point should be self-evident, but it always amazes me how many issues I have with empty personnel files for so-called problem employees. A quick call to counsel to confirm whether an employee can be terminated would save a lot of heartache in having to defend a poorly documented firing.

Rush Nigut, citing to Chris Moander of the Wisconsin Business Law and Litigation Blog, sums up this idea by reminding businesses that they can pay for it now, or pay a lot more for it later: "Many business people sadly lump legal services into the 'too costly' or 'unnecessary' categories when it comes to starting or running a business. And while good legal services are not cheap it may actually save you in the long run.... It costs a lot more to repair ... than to do it right in the first place." I could not have said it better myself (which is why I didn't).

DOL publishes proposed new FMLA regulations

Weighing in at an astounding 477 pages, the Department of Labor has published its proposed new FMLA regulations. According to the DOL, these regulations will "preserve[] workers' family and medical leave rights while improving the administration of FMLA by fostering better communication in the workplace." They seem to be an improvement over the current regime, although they are far from perfect. These regulations are not final, and will be subject to at least a 60-day comment period.

If you don't have the time or the willpower to sift through 477 pages to figure out the impact these regulations will have on your FMLA responsibilities, here are some of the high points:

• Except in emergency situations, employees will be required to follow the employer's policy for notification of FMLA leave, eliminating employees' ability under the old regulations to take up to 2 days after an absence begins to notify their employer that they intend to take FMLA leave. This change will greatly improve employers' ability to plan and schedule around employees' medical leaves.
• Employers will be able to directly contact employees' doctors when employers have questions about FMLA medical certification forms that the doctors have filled out. Employers will no longer have to go through the employee as an intermediary, or retain their own doctor to contact the employee's doctor. While this change may have some effect on employee privacy, it will greatly improve the flow of information and streamline the ability of employers to make proper decisions based on full and complete medical information. This rule will also eliminate the expense and burden of companies having to retain their own doctors simply to ensure that a form is properly filled out.
• To employers' dismay, the regulations do not change the time increments in which employees can take intermittent leave, but do require that an employee using intermittent leave use the employer's regular call in procedure except in emergencies. Thus, employees will still be able to take intermittent leave in very short increments, continuing for employers the administrative nightmare of intermittent leave, albeit with some additional notice.
• Employers will be entitled to require employees to obtain certification of FMLA-eligible medical conditions twice a year instead of annually.
• Currently, the clock under which employees accrue their 12 months of service for eligibility has no time limit, even after multiple breaks of service. Thus, if I work for 6 months for a company, and return 10 years later, I am eligible for FMLA leave after another 6 months. The new regulations place a 5-year cap on years of service for calculating eligibility, except for military or childrearing leaves, or where rehiring is covered by a collective bargaining agreement.

The DOL is also soliciting input on how it should handle the recent FMLA expansion for military-related leaves of absence. For the adventurous, the complete proposed regulations are available for download here.

[Hat tip: Jottings by an Employer's Lawyer].

Retaliation decision underscores importance of termination discussions

A couple of weeks ago, the 6th Circuit held that where an adverse employment action occurs very close in time after an employer learns of a protected activity, such temporal proximity between events is significant enough to constitute evidence of a causal connection for the purposes of satisfying a prima facie case of retaliation (see 6th Circuit holds that temporaral proximity alone is sufficient to show a causal nexus in retaliation cases). Today, that same court, in Imwalle v. Reliance Medical Products, illustrates the converse of Mickey v. Zeidler Tool & Die, what additional evidence will prove a nexus when temporal proximity alone is not enough. It also highlights the importance of carefully watching one's words in termination meetings, and how saying the wrong thing can come back to haunt you.

Imwalle concerns a corporate president who was terminated from his long-tenured position 3 months after he filed an age and national origin discrimination charge with the EEOC. During the termination meeting, the COO told Imwalle: "I know that you know that Haag-Streit (HS) never committed discrimination in the past, at present, and will not in the future. I therefore canot [sic] understand why you raise such a claim. We are not discriminatory, just not."

The Court relied heavily on that statement in affirming the jury's verdict in Imwalle's favor on his retaliation claim:

[T]he fact that Ott made this statement about Imwalle's discrimination complaints at such a critical moment raises questions about Haag-Streit's true motivation for firing Imwalle.

On the one hand, the statement can be taken at face value, made solely for the purpose of assuring Imwalle that his firing had nothing to do with the alleged discrimination on the part of Haag-Streit because such discrimination purportedly did not exist. But another plausible explanation for Ott's statement is that Imwalle's discrimination claim had caused both frustration and resentment on the part of Haag-Streit, and that Ott's statement was designed to mislead Imwalle and discourage him from suing. Ott obviously felt strongly enough about the accusations of discrimination to prepare a written statement and read it as the first order of business at the meeting he called to let Imwalle go.

Furthermore, the timing of the statement, literally moments before Imwalle was notified that he was no longer President of Reliance or of HSH US and that his employment agreement was being terminated, clearly shows that Imwalle’s complaint of discrimination was at the forefront of Ott's mind.

While it's difficult to know what the COO's true motivation was, it's easy to understand how a jury could interpret the phrase, "I cannot understand why you raise such a claim," uttered while terminating Imwalle, as retaliatory. If the COO's intent was retaliation, then he did an awful job of hiding it. If, however, his intent was innocent, he should have chosen his words much more carefully. Use his mistake as a valuable lesson -- be careful what you say in a termination meeting, and even more careful what is written down. The words can, and will, be used, twisted, and construed against you.

What else I'm reading this week #17

I'm coming out this week smokin' -- or at least with a pair of posts about smoking. John Phillips' Word on Employment Law discusses some of the potential legal implications of smoking in the workplace. Should you think that you needn't worry about this issue since it is illegal to smoke in just about every workplace in Ohio, Representing Management gives us a tale of a lawsuit permitted to proceed under ERISA brought by an employee whose employment was terminated after he tested positive for smoking in violation of his employer's wellness program.

The Pennsylvania Employment Law Blog reminds us that in guarding against potential lawsuits, how you terminate an employee is often as important, if not more so, than the reason for the termination.

The Labor and Employment Law Blog gives us Part 2 of its series on how to avoid a whistleblower claim.

Workplace Privacy Counsel brings us information on whether dead employees' medical records are entitled to protection under HIPAA (short answer, yes).

Finally, Electronic Discovery Navigator provides helpful information on implementing record retention policies.

Blawgosphere criticizes workplace bullying laws

Since I blogged last week on workplace bullying (see Bullying boss justifies unemployment award), there has been a flurry of activity in the blawgosphere on this issue. This month's ABA Journal has an article discussing both sides of the anti-bullying movement, while Overlawyered and the Laconic Law Blog, like me, are critical of this initiative.

The Tennessee appellate decision cited in the ABA Journal article frames this issue best:

It is necessary to distinguish between harassment and discriminatory harassment to insure that discrimination laws do not become a general civility code…. If there is harassment in the work place, the burden is on the plaintiff to establish that such harassment is based upon one's age, race, sex or other protected class characteristic that is prohibited by the civil rights statutes. The fact that a supervisor is mean, hard to get along with, overbearing, belligerent or otherwise hostile and abusive, does not violate civil rights statutes…. Nothing in the record established that Ms. Doyle treated age-protected employees any differently than non-protected employees, rather, the testimony clearly showed that Ms. Doyle was an equal opportunity oppressor, using her intense, dominant, abrupt, rude, and hard-nosed management style on all St. Thomas employees. Disagreement with a management style alone, without evidence of a discriminatory intent or motive, no matter how disagreeable that style may be, is simply insufficient to warrant protection…. The Sixth Circuit has recognized that, "personal conflict does not equate with discriminatory animus," … and it has further emphasized that "it is important to distinguish between harassment and discriminatory harassment in order to ensure that Title VII does not become a general civility code."