Employment lessons from The Office

NBC's The Office should be required viewing for any HR professional or employment lawyer. In honor of its return tomorrow night, US News & World Report brings us 7 Career Lessons From The Office. I'll share with everyone #2 - "Boss" shouldn't be confused with "friend":

When Michael said he wants his employees to think of him as "a friend first and a boss second, and probably an entertainer third," these were not the musings of a great manager. It sounds nice but it doesn't work -- try firing a friend or telling your friends that you've slashed their employment benefits. Yes, Michael has had a few heart-to-hearts that may have temporarily helped his employees, but it's unlikely to have increased their performance or their loyalty to the company.

So there are no doubts, I bring you the original boss of The Office, David Brent, and his philosophy on management:

Indiana Supreme Court permits expert testimony on "workplace bullying"

In what could be considered the first major judicial opinion on workplace bullying, the Indiana Supreme Court, in Raess v. Doescher, permits an expert witness to opine on "workplace bullying."

Joseph Doescher, a hospital operating room perfusionist (the person who operates the heart/lung machine during open heart surgeries), sued Dr. Daniel Raess, a cardiovascular surgeon, for an alleged assault in the operating room. The testimony at trial was that Dr. Raess was angry at Doescher about reports to the hospital administration over the doctor's treatment of other perfusionists. Dr. Raess aggressively and rapidly came at Doescher "with clenched fists, piercing eyes, beet-red face, popping veins, and screaming and swearing at him." Doescher backed up against a wall to defend himself, believing that Dr. Raess "was going to smack the s**t out of" him. Dr. Raess then suddenly stopped, turned, and stormed out of room yelling to Doescher, "you're finished, you're history." For this conduct, a jury awarded Doescher $325,000.

Among the testimony that the jury heard what that of Doescher's expert witness, Dr. Gary Namie, one of the co-founders of the Workplace Bullying Institute. The Workplace Bullying Institute is the organization that is on the forefront of trying to get anti-bullying legislation passed. Dr. Namie testified as to the nature of Dr. Raess's behavior:

In my opinion it's an episode of workplace bullying.... I concluded that based on what I heard and what I read that [the defendant] is a workplace abuser, a person who subjected [the plaintiff] to an abusive work environment. It was a horrific day, it was [a] particularly aggregous [sic], outrageous ... episode.

The Indiana Supreme Court found no error in the trial court's ruling that allowed Dr. Namie's "expert" testimony. According to the court, the term "workplace bullying" can be used because the phrase is "like other general terms used to characterize a person's behavior...." It also found that the trial court did not err in refusing to instruct the jury that workplace bullying, in and of itself, is not illegal.

It should be frightening to any business owner that a court has legitimized Dr. Namie's theory of workplace bullying as some great societal wrong that needs to be fixed. My fear is that this opinion will embolden the workplace bullying movement, a movement that readers of this blog know I feel should die a quick death.

New Jersey to adopt paid sick leave - is Ohio next?

While the Ohio Healthy Families Act stalls in the legislature, and Sick Days Ohio, the group lobbying for this bill, gathers signatures to place in on November's ballot, New Jersey will join California and Washington to become the 3rd state (plus the District of Columbia and San Francisco) to require paid sick leave for employees. The New Jersey plan, however, differs from Ohio's Healthy Families Act in three key regards:

1. New Jersey's employees will partially fund their own paid leave through a payroll deduction. According to today's Philadelphia Inquirer, each worker will pay about $33 per year, while each is entitled to collect up to two-thirds of their salary, capped at $524 per week.
2. Employers will be able to require their employees to use accrued vacation days and other paid time off before using their allotment of statutory paid sick leave.
3. Businesses with fewer than 50 employees would not be required to keep jobs open to workers who take the leave.

These differences are a step in the right direction of protecting the interests of small business owners. A payroll deduction and benefit cap will alleviate some of the concerns over cost, although I doubt that $33 per year per employee will be enough to fully cover all employees. Requiring employees to use other paid leave before the statutory leave will prevent potential abuses by employees. Finally, not guaranteeing continued employment for employees of small businesses will allow those businesses to meet their staffing needs without fear of a retaliation lawsuit.

The OHFA has other deficiencies that still need to be addressed, particularly its anti-retaliation provision: "No employer shall discharge or in any manner discriminate against any employee for opposing any practice made unlawful by this Act, including ... using paid sick leave taken pursuant to this Act as a negative factor in an employment action, such as hiring, promotion, or a disciplinary action." "Negative factor" is much too forgiving of a standard, and likely will hamstring employers from taking action against any employee who is out for even a day with an illness.

The Ohio legislature should consider the OHFA, if only to keep it from appearing on the November ballot in its current form. Such debate should include consideration of these provisions from the New Jersey law, each of which addresses an important concern to Ohio's small business owners.

Court reminds us that harassment must be because of a protected class to be actionable

Williams v. Spitzer Auto World, Inc., decided this week by the Lorain County, Ohio, Court of Appeals, is a great illustration of the dangers the will befall corporate America if workplace bullying legislation becomes the law.

Michael Williams, an African-American, quit his job at Spitzer (it's been a busy couple of weeks for Spitzer) and alleged, among other things, racial discrimination, racial harassment, and constructive discharge. The jury found in favor of Spitzer on the harassment claim, but nevertheless awarded Williams damages on his constructive discharge claim. A constructive discharge is where "the employer's actions made working conditions so intolerable that a reasonable person under the circumstances would have felt compelled to resign." The intolerable working conditions, however, must be tied to some unlawful conduct by the employer for an employee to claim a constructive discharge. Because Williams had not proved his harassment claim, the appellate court ruled that his constructive discharge claim must therefore also fail.

This case is a perfect illustration of what's wrong with the anti-bullying movement. If groups like the Workplace Bullying Institute get their way and generalized workplace bullying becomes illegal, every employee who quits a job because of an alleged abusive boss will have a colorable constructive discharge claim. The violation of the anti-bullying law would provide the unlawful conduct necessary to support the constructive discharge claim. It is for this very reason that anti-bullying legislation would spell the end of employment at-will, as every employee who resigns because they don't like their boss would be able to claim a constructive discharge.

10 reasons why I love my job

The National Law Journal has published its 15th annual list of bizarre employment law cases. My favorite is actually number 10: "Maternity Wear, Pregnancy Suit":

Philadelphia-based maternity clothes retailer Mothers Work Inc. agreed to pay $375,000 to settle a suit alleging that it refused to hire qualified female applicants because they were pregnant. LaShonda Burns alleged the company would not hire applicants for sales positions who were "visibly pregnant" or who it learned were pregnant through interviews. Company president Rebecca Matthias denied any discrimination, but said the settlement was reached to avoid "huge" costs and "distractions" of protracted litigation. She added, "It's important to make sure our culture and policy are lived at every one of our stores."

What's next, the NAACP being sued for race discrimination?

What else I'm reading this week #25

It's a constant struggle to decide which is the hotter topic in employment law -- wage and hour lawsuits or retaliation claims. I've been focusing a lot of attention lately to the latter, so let's start this week's review with a pair of articles on the former. BLR's Daily HR Advisor asks the question, FLSA Class Action Overtime Suits—Are You Next? To help answer that question, Law.com gives everyone a lesson in Overtime 101. Workplace Horizons provides a timely update on an attempt to revitalize new regulations for SSA No-Match letters. For an explanation of what these new rules would mean, see New rules require termination of illegal immigrants

Mark Toth at the Manpower Employment Blawg asks if obesity discrimination is more prevalent than even race discrimination. I gave my thoughts on this issue last June: Supersized lawsuits - obesity-related claims expected to rise

The Workplace Prof Blog gives an academic perspective on a case in which Wal-Mart fired a manager for engaging in an improper affair with a coworker after it hired an investigator to follow the couple down to Central America to catch them in the act.

Monster.com's HR Guru gives some pointers on dealing with workplace violence.

Finally, my friend Donna Seale at Human Rights in the Workplace gives us a Canadian perspective on employers' responsibility for harassment by non-employees.

Failure to hire "because of litigation" may constitute retaliation

Another day, another retaliation case out of the 6th Circuit. In Cline v. BWXT Y-12, LLC, the company declined to hire Cline, a former employee, for an open position because the company was "in litigation with Mr. Cline and that he may not be the best person ... because of the litigation factor." That litigation involved a claim of age discrimination. The decision makers testified that while they knew of the litigation, they did not know that it involved allegations of age discrimination. The district court threw out the retaliation claim on summary judgment, finding that because the decision makers did not have "any knowledge of the substance of Cline's present suit," they could not have known that he had engaged in protected activity.

The appellate court disagreed, and found that because the decision makers "knew that Cline was involved in litigation with the company ... the evidence permits the inference that the decision makers were unwilling to hire someone in litigation with the company." That inference "creates a triable issue of fact over whether the decision makers knew of Cline's protected activity."

"Wait a second," you might say, "There can be all kinds of litigation Cline could have been involved in. Just because he sued the company doesn't mean that he was engaged in statutorily protected activity. And, even if he was, can't a company have a neutral policy against hiring anyone who has sued the company, regardless of the cause." The Court hears your protests:

Something more is required, the company says, because Cline’s evidence still does not show that the decision makers knew that the litigation involved an age-discrimination claim.... In one sense the company has a point. Cline’s evidence permits the inference that Mack and Zava would not hire someone—anyone—“in litigation” with the company, and that view might suggest unbiased neutrality. It thus might have made no difference to Mack and Zava whether the litigation involved age discrimination if they preferred not to hire anyone in litigation with the company without regard to the subject matter of the lawsuit—whether it was a tort action, a contract dispute or a civil rights complaint. But such an across-the-board explanation—that any litigation with the company precludes any individual from being hired (or for that matter being retained as a current employee)—would necessarily sweep up protected civil rights claims and non-protected claims. And if such an explanation suffices for one hiring decision, why couldn’t an employer adopt a company-wide policy against hiring or retaining anyone in litigation with the company? As long as the policy were consistently followed, the employer would rarely have reason to obtain knowledge about the substance of the litigation, and at any rate it could always fairly say that it was the ruthlessly neutral policy, not the protected activity, that caused the adverse action.

Thus, to prove his retaliation claim, Cline will have to prove two facts:

1. That the company knew about the content of his claim; and
2. That the company did not have a policy against hiring (or retaining) individuals with litigation against the company.

This case poses the age-old question, "What does 'because of' mean in an employment lawsuit?" The answer, as with most things, is, "It depends." Cline presents a rational and common sense understanding that not all employment decisions that look retaliatory are retaliatory. I would never counsel someone to provide "engaged in litigation" as a reason for termination, because of the negative inferences that one can draw. But, if the decision maker does not know of the reason for the litigation, and the company can prove that it has a policy (written or unwritten) against hiring (or for firing) anyone who is in litigation against it, then the company genuinely has not engaged in retaliation.