What else I'm reading this week #24

One story that has received a lot of press this week, but that I have not touched, is the $100 million tip pooling judgment received by Starbucks lead employees. This claim seems to be unique to California wage and hour laws, which requires all employees, even supervisors, to receive their fair share of tips. Kris Dunn, The HR Capitalist, has what is probably the best take I've read on this case.

Mark Toth over the Manpower Employment Blawg, however, has the post of the week. Click on over to read about a grievance filed by the Teamsters complaining that a school had violated its collective bargaining agreement by using goats instead of union workers to clear brush.

Dan Schwartz at the Connecticut Employment Law Blog writes about the "ministerial exception" to Title VII and a case in the 2nd Circuit which held that it is unconstitutional to apply Title VII to certain religious institutions.

Rush Nigut's Rush on Business asks whether it is a good idea for employers to permit employees to start side businesses.

The Washington Labor, Employment, and Employee Benefits Law Blog reports on criminal charges brought against an employee who took company documents. In a bizarre twist, the employee is actually blogging about his own criminal trial. Keep in mind that civil liability also exists under the Computer Fraud and Abuse Act for employees who intentionally damage computer records.

Suits in the Workplace illustrates the dangers of ignoring a litigation hold in discovery.

Finally, the Labor and Employment Law Blog has a piece on how to use corporate wellness programs not only to reduce health care costs, but also limit potential liability.

Wall Street Journal on the surge of pregnancy discrimination claims

This morning's Wall Street Journal has a piece on the growth of EEOC pregnancy discrimination charges. According to the Journal:

Pregnancy-bias complaints recorded by the Equal Employment Opportunity Commission surged 14% last year to 5,587, up 40% from a decade ago and the biggest annual increase in 13 years.... The groundswell reflects both changing demographics and a new activism among mothers. It also shows that even now, 30 years after passage of the federal Pregnancy Discrimination Act, there is still confusion about what protections it provides. "I thought we were protected," said an advertising executive during a recent gathering of 100 working mothers. "Then I find out we can be fired while we're pregnant, employers can refuse to hire us -- what exactly are our rights?"

While employers can indeed fire, lay off or refuse to hire pregnant women, they can't single them out for worse treatment -- and they must be able to prove they held men to the same standards or asked male job candidates comparable questions.... Many women who bring complaints are surprised to learn that they don't have special protection from adverse treatment. One manager for a publishing company thought she was being discriminated against when her employer fired her for poor performance while pregnant, says Kimberlie Ryan, a Denver employment attorney. In fact, the manager couldn't prove her bosses knew she was pregnant when they decided to fire her, says Ms. Ryan. To succeed in a claim, a woman generally must be able to prove an adverse action was motivated by her pregnancy or her status as a mother.

Let me suggest that if you decide to fire an employee for poor performance while that employee is on maternity leave, you have a well-documented paper trail of issues, and that the first the employee will be hearing about these issues is not during the termination. Otherwise, it will be difficult to overcome a claim that the performance problems were invented as a pretext to terminate a pregnant employee.

Wal-Mart lawsuit for reimbursement of medical costs illustrates important HR issue

Wal-Mart is at the center of a huge public relationship mess after it has asked a former employee to reimburse most of the $470,000 its health plan paid for medical costs following a traffic accident. CNN.com has the details:

[Debbie] Shank suffered severe brain damage after a traffic accident nearly eight years ago that robbed her of much of her short-term memory and left her in a wheelchair and living in a nursing home.

It was the beginning of a series of battles -- both personal and legal -- that loomed for Shank and her family. One of their biggest was with Wal-Mart's health plan.

Eight years ago, Shank was stocking shelves for the retail giant and signed up for Wal-Mart's health and benefits plan.

Two years after the accident, Shank and her husband, Jim, were awarded about $1 million in a lawsuit against the trucking company involved in the crash. After legal fees were paid, $417,000 was placed in a trust to pay for Debbie Shank's long-term care.

Wal-Mart had paid out about $470,000 for Shank's medical expenses and later sued for the same amount. However, the court ruled it can only recoup what is left in the family's trust.

The Shanks didn't notice in the fine print of Wal-Mart's health plan policy that the company has the right to recoup medical expenses if an employee collects damages in a lawsuit.

Just because your company is legally entitled to do something does not mean that it should. Take the FMLA as an example. Section 104(c)(2) of the FMLA provides that if an employee fails to return from an FMLA leave of absence for less than 30 days, and for a reason other than the continuation, recurrence, or onset of a serious health condition or some other circumstance beyond the employee's control, the employer may recover any premiums that it paid to maintain group health coverage for the employee during the period of FMLA leave.

Is it a good idea to exercise this right? Consider the new mom who decides after her FMLA leave expires to stay at home with her newborn. That decision will absolutely leave the employer in the lurch. The employer might want to do something to send a message to other employees not to take advantage of the FMLA by taking the time off and then choosing not to return. But consider: 1) mechanically, how do you go about exercising this right; and 2) what negative message does it send if you go to court to collect this money? Keep in mind, even if you have written authorization from an employee to make certain paycheck deductions for sums owed, FMLA leave is unpaid. By the end of an employee's leave, there almost certainly will not be any pay left from which you will be able to make a deduction.

Take a look at some of the comments posted on CNN.com to its story:

Although this is a very stupid thing for a company that makes Billions to do, this doesn't surprise me really. Our society has migrated away from action based on morals and ethics to one that is only concerned about the letter of the law.

One of the most unconscionable things I have ever seen. Another reason to hate Wal-Mart and to never spend another cent there... I'd rather pay double somewhere else than help support a company capable of something like this.

Hey Wal-Mart why don't you just send your attorneys to the lady's house and dump her out of her wheelchair???

Before you decide to seek reimbursement from a former employee, think long and hard about the effect on your current employees, and whether it's good for your business to have them bringing these types of resentments against your business into the workplace.

An update on this story is available.

Plaintiff's history of homemade porn is not fair game in harassment suit

Whether or not a plaintiff was subjectively offended by an alleged hostile environment is a key element of proving any sexual harassment claim. One would think, then, that if a plaintiff is claiming that she was a offended by being subjected to porn in the workplace, it would be fair to cross examine her on her own history of home-made porn movies. No so, however, according to the Lorain County (Ohio) Court of Appeals, in Conti v. Spitzer Auto World Amherst, Inc.

Kristina Conti and two co-workers claimed that they were subjected to a sexually hostile work environment while employed at Spitzer Auto World. They claimed that two male sales managers subjected them to near-daily sexual harassment, including forcing them to view pornography on their computers, rubbing up against them from behind and touching their buttocks, and routinely questioning them about the color and type of their underwear, their private sex lives, and their interest in different sexual positions.

Spitzer's counsel engaged in following Q&A with Conti at trial, in an attempt to show that she could not have been personally offended by such conduct:

Q. Well, I hate to have to ask you this. But did viewing your videotape refresh your recollection as to whether you knew that adult film was being made? ...

A. You're asking how I felt about it?

Q. No ma'am. I'm asking you, isn't it true you knew it was being filmed?

A. I did not know it was being filmed.

Q. You would agree with me it was an adult film, correct?

A. Yes.

Q. And you would agree with me, you were in it, correct?

A. Yes....

Q. You would agree with me at the very end of the tape, Ms. Conti, you said, "Should I turn this thing off now," didn't you?

A. I don't know exactly, but my recollection of what I said was something along the lines that this thing better be off, or turn this thing off.

The court of appeals ruled that the trial court abused its discretion in allowing that line of questioning. The court found that the evidence should have been excluded because it was not relevant to the harassment. It reasoned that permitting cross examination of a plaintiff about a sex tape she made with her husband does not tend to prove that she welcomes the sight of pornography at work. It may prove that she likes privately to film her and her husband having sex, but it does not prove that she welcomes sexual advances from a coworker or viewing porn starring people other than her and her husband.

There is something viscerally appealing about cross examining a sexual harassment plaintiff concerning her home videos. Yet, I get the point that what one does in the privacy of one's home with one's spouse doesn't necessarily translate to the same level of comfort with one's coworkers. At the end of the day, I think the court in this case got it wrong. More so in sexual harassment cases than any other type of employment case, credibility is key. In a he said/she said scenario, the jury has to be able to evaluate which party is more likely to be stretching the truth. If a plaintiff makes home pornos, can't a jury conclude that she is less likely to find pictures of other people having sex offensive? Shouldn't the jury have the right to evaluate her credibility in light of her obvious lack of prudishness? Certainly the evidence is relevant to her subjective state of mind in her level of offense at the porn. The question is how relevant, and whether it is simply too prejudicial. The trial court felt that it was not too prejudicial and admitted it, and the appellate court went too far in overruling that evidentiary ruling.

I'm curious to see if this case get retried, and if it comes out differently with Ms. Conti's home movies no longer before the jury.

My thanks to Donna Seale

For those who have been following my discussion with Donna Seale at Human Rights in the Workplace, she has posted what will be the last of our back and forth on Internet addiction and disability discrimination. For those who have not been following it, you can catch up with these links:

• My initial post: Is Internet addiction a protected disability?
• Donna's 1st response: Internet addicts: the next wave in accommodation claims?
• My rebuttal: Dealing with Internet addiction under the ADA
• Donna's 2nd response: Internet addiction - part two
• My conclusion: More on internet addiction
• Donna's conclusion: Internet addiction: the discussion continues

There's nothing else to say other than thank you to Donna for taking part in what turned into a powerful demonstration of what blogging can accomplish.

Would you promote your poor performers?

Would you promote an employee who ranked a 2 out of 10 on his or her last performance review? That is exactly what the Democratic and Republican parties are asking us to do. The Presidential campaign is referred to as one long job interview. Yet, the 3 people who are applying for the job get low marks from the public. According to RealClearPolitics, only 21% of the country approves of the job Congress is doing. Yet, John McCain, Hillary Clinton, and Barack Obama are all sitting Senators and vying for this promotion.

More on internet addiction

Donna Seale at Human Rights in the Workplace is continuing our discussion on the differences between American and Canadian disability discrimination law and Internet addiction. Her latest is as follows:

As for Mr. Hyman's comments that even if an employer paused to consider accommodating an Internet addicted employee the employee would still have to perform the essential duties of the job, I completely agree. Where we part company is on the approach to the actual question of accommodation. While it may not be easy to think up possible ways an employer could accommodate an Internet addicted employee who needed to use the Internet and e-mail to do her job, the law in this country still requires an employer to engage in that process. Failure to actually engage a process to consider what could be done to accommodate is, in and of itself, sufficient to trigger liability under Canadian human rights law even if no accommodation could ultimately be provided. (Besides, aren't there blocking devices employers can use to block employee access to non-work related Internet sites? -- speaking from a real non-techie perspective -- but I digress). In any event, accommodation is an individualized process and would have to be considered from the perspective of what would need to be done to accommodate the specific employee in question in their specific job in question, which may require a lot of an employer or, perhaps, not.

Let me respond as follows:

1. It is entirely defensible to terminate an employee with a disability if you don't know the employee has a disability, and you cannot make an accommodation if you don't know that one is needed.
2. If an employee requests an accommodation, the employer must engage in an interactive process to determine if there is a reasonable accommodation available that will enable the employee to perform the essential functions of his or her job with or without reasonable accommodation. Any accommodation that is provided need not meet the employee's preference -- it just must be reasonable.
3. In all likelihood, this interactive process will result in a dead-end for an employee who claims an Internet addiction. While there is software and other techie solutions to block access to certain websites, those solutions are expensive, hard to implement, and will probably cause an undue hardship on the employer.

In sum, I agree with Donna's conclusion:

Tread lightly whenever an employee raises a potential disability issue connected to their inability to do their job because whatever actions you take after being advised of the potential disability (whether it is Internet addiction or something else) may be considered discriminatory. Forewarned is forearmed.

Companies should not turn a blind eye to potential accommodation issues. Indeed, doing that could result in liability where it does not otherwise exist. In the case of an addiction, however, employees should not be able to lean on the ADA as a crutch to save their jobs when they permit their addiction (whether it's the Internet, sex, drugs, or something else) to pervade the work environment.