Have we reached the end of civility?

A recent column in the New York Times had an interesting take about the decreased level of civility in our society and its effect on the workplace. The author’s thesis is that technology has caused a decline in civility over the last 10 years, which has impacted the workplace:

[A]s we’re all aware, the 21st century has brought with it new variations on rudeness. Answering texts during a luncheon. Tapping on BlackBerrys instead of listening to a speaker—or a child’s recital. Shooting off hostile e-mail anonymously. But is this decline in manners real? And when considering this, should we separate the outward symbols of politeness from general civility? It’s a complicated but important issue that has a surprising economic impact. Christine Pearson, a professor of management at Thunderbird School of Global Management in Arizona, said her research over the last decade had shown that many workers left jobs because of continuing incivility but rarely reported that as the reason.

Professor Pearson researched 9,000 managers and workers for her book, The Cost of Bad Behavior: How Incivility Is Damaging Your Business and What to Do About It. She concluded that incivility is rampant on the job. She cited examples such as rudeness, ignoring requests for help, ignoring a colleague passing in the hall, gossiping behind colleagues’ backs, and borrowing supplies without asking.

I’ve written about courtesy and civility before, and will leave you with two additional thoughts:

1. Whether this is a real workplace problem or not, it cannot hurt to try to be a little nicer to each other. Behavior models start at the top. If an organization is run by intimidation and scare tactics, then it should come as no surprise when managers and supervisors think they need to motivate their teams by yelling, harassing, sniping, and snubbing. It should also come as no surprise when employees respond with the incivility of litigation.

2. Social media has downgraded the level of discourse in our society. If recent statistics cited by Mashable are to be believed, 1 out of every 4 U.S. Internet pageviews occurs on Facebook. It is not a stretch to concluded that this increased connectedness and familiarity with each other has led to more informality and less civility. The ability communicate in 140 character bursts does not require truncated discourse. (You can find me on twitter @jonhyman).

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Do you know? EEOC reports record charge filings for 2010

The EEOC recently published its fiscal year 2010 FY 2010 Performance and Accountability Report. Given the state of the economy, its findings are not all that surprising. The EEOC reported a record number of discrimination charge filings, 99,922, its highest total in the agency’s 45-year history. What is surprising, however, is what the EEOC is doing with all these charges—it’s closing files.

Despite the record number of filings, the EEOC resolved 104,999 charges, leaving it with an inventory of 86,338 at the end of its fiscal year. While that number seems high, it’s less than a 1% increase from the end of FY 2009. By way of contrast, the EEOC’s pending inventory increased nearly 16% from FY 2008 to FY 2009. In other words, the EEOC is resolving cases—whether by mediation and settlement, litigation, or dismissals and right to sue letters.

Here’s what the EEOC has to say about the cause of this record number of filings:

This surge in charge receipts is due in part to the expanded statutory authorities that EEOC has been given with the ADA Amendments Act (ADAAA) of 2008; the Genetic Information Nondiscrimination Act (GINA) of 2008; and the Lilly Ledbetter Fair Pay Act of 2009 (the Ledbetter Act). We also attribute the rise in charge receipts to EEOC becoming more accessible, making charge filing easier and providing better, more responsive customer service. Our internal Intake Information Group expanded the agency’s availability by phone and e-mail. Additionally, in the last four years, the EEOC has concentrated on revamping its charge intake services, expanding walk-in hours, and issuing a plain language brochure to assist potential charging parties in understanding their rights and the EEOC charge process. Individuals can now contact the agency by phone, by mail, by e-mail, by going to the EEOC website, or by visiting EEOC field offices.

These record filings have resulted in record recoveries. In FY 2010, the EEOC secured more than $319.3 million for more than 18,898 people through administrative enforcement activities—mediation, settlements, conciliations, and withdrawals with benefits. This figure represents the highest level of monetary relief ever obtained by the Commission, and a $25.2 million increase from FY 2009. Of this record recovery, $85 million came from the resolution of 285 lawsuits brought by the EEOC.

What does all this mean for employers? The EEOC is no longer an agency where charges go to die. Employers can expect more thorough investigations, quicker resolutions, and more aggressive enforcement. If you are charged with discrimination with the EEOC, you should take it seriously; the EEOC is.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Announcing the ABA Blawg 100 – and a shameless request for your vote

Today, the ABA Journal announced that it has selected the Ohio Employer’s Law Blog as one of the top 100 legal blogs for 2010. I am truly humbled. The ABA’s blog directory has more than 3,000 registered blogs. To have been selected as one of the 100 “best and brightest law bloggers” by the American Bar Association leaves me speechless.

Here’s my Oscar moment. It really is an honor just to have been nominated. You can, however, navigate over to the ABA’s website and vote for me as the top Labor & Employment blog of 2010. You need to be registered at abajournal.com to vote. Congratulations to the other 99 honorees, and especially the other four selected in the “In Labor” category, all of whom are deserving.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

7 tips for a safe workplace holiday party

I spent my collegiate summers earning money working in a warehouse in Philadelphia. It was an employment lawyer’s dream. One employee thought the best way to motivate his black co-workers was to hide buckets of fried chicken around the warehouse. Another, upset that he did not get a big enough raise, hanged our boss in effigy in front of a mural of a swastika that read, “Die Cheap Jew.” And, there was an infamous holiday party during which an intoxicated employee attempted to sexually assault the boss’s wife on the dance floor.

According to an Kay Spector, writing in the Cleveland Plain Dealer over the weekend, 21% of companies are planning not to have a holiday party this year, the lowest number in 30 years. I am not one of the employment lawyers who think that holiday parties pose too large of a risk to be held. In fact, I believe that year-end parties are an excellent source of workplace morale, provided that employers and employees use some common sense in planning and attending. Here’s 7 tips for employers and employees to consider as we enter the workplace holiday party season:

• Normal work rules and standards apply to holiday parties. As a subtle reminder, consider holding an anti-harassment refresher in anticipation of the party.
• Review your insurance policies for alcohol-related exclusions. 
• When scheduling your party, consider that employees are less likely to indulge on a work night than a Friday or Saturday. 
• Remind employees to drink responsibly and plan ahead for safe transportation. Help employees by limiting consumption via drink tickets, offering plenty of non-alcoholic options, and providing designated drivers, cab vouchers, or hotel rooms for those unfit to drive home.
• Have trained and experienced bartenders, and emphasize that they should not over-pour drinks, or serve guests who appear intoxicated or underage.
• Designate one or more managers or supervisors to refrain from drinking and monitor the party for over-consumption.
• Close the bar an hour or more before the party ends.

Cheers!

WIRTW #154 (the thankful edition)

In her preschool class last week, my daughter had to share what she was thankful for. Her classmates gave the standard responses—parents, grandparents, siblings, maybe a pet or two. Her answer—Peter Pan. Good to know where my wife and I stand in her corner of the universe.

Here’s what I’m thankful for (at least as my blog is concerned):

• I’m thankful for the nearly 600 subscribers who think enough of what I have to say on a daily basis to have my thoughts delivered to their feedreaders or inboxes.

• I’m thankful for the more than 8,000 different visitors each month who find me via a Google search, a link, Twitter, or some other way, who stop by to read my thoughts and musings.

• I’m thankful for all of my blogging and tweeting colleagues—many of whom I now consider friends—with whom I have shared ideas and links, and engaged in interesting debates.

• I’m thankful for all of the reporters who have used me a source (and spelled my name correctly).

• I’m thankful for my partners, who, when they were the partners, provided me the freedom to start what at the time was a novel project.

• Finally, I’m thankful for my wife, who often puts up with my late-night typing because I have a thought I want to finish for the next morning.

Have a great Thanksgiving and long holiday weekend. I’ll see everyone back on Monday, when we start the stretch run to my annual list of the year’s top 10 labor and employment law stories.

Here’s the rest of what I read this week:

Discrimination

• “Legal” Drugs and the ADA, Part III – from Workplace Prof Blog

• EEOC Granted Wide Latitude in Age Subpoena Enforcement – from Workplace Class Action Litigation

• How to Survive the ADAAA: Seven Best Practices for Employers – from Employment and Labor Insider

• Followup and Resources from Where We Live’s Discussion on Gender Wage Gap – from Daniel Schwartz’s Connecticut Employment Law Blog

• “Good parenting” in an age of work-family imbalance – from Work and Family Blog

• Paycheck Fairness Act: Good Riddance – from the Evil HR Lady (writing at BNET)

• Answer to Question of the Week: Body Art – from Mark Toth’s Manpower Employment Blawg

• If you provide public accommodations, beware discriminating against people with disabilities – from Employment Law Bits

• In Defense of the EEOC? No, Just a Reminder About Pancakes – from Michael Fox’s Jottings By An Employer’s Lawyer

Wage & Hour

• What Are YOU Doing About Wage and Hour Compliance? – from Stephanie Thomas at Compensation Cafe

• Baltimore Workers File Class-Action Suit Over ESPN Zone Closure – from Workplace Fairness

• Labor Department Partners With ABA in Lawyer Referral Program – from ABA Journal Daily News

• Care In Drafting Pay Documents Is Essential – from Wage and Hour Laws Blog

Social Networking & Technology

• Nearly Half of CIOs Plan to Restrict Cyber Holiday Shopping from Joe’s HR and Benefits Blog

• CIOs See Smartphones as Data Breach Time Bombs from Ride The Lightning

• Mining Facebook Pages of Police-Officers-To-Be – from Molly DiBianca at the Delaware Employment Law Blog

• Facebook Accounts for 25% of All U.S. Pageviews – from Mashable

• Computer Fraud & Abuse Act: Court Rejects Argument That Employer’s Corporate Policies Can Make Employee Access “Unauthorized” Under the CFAA – from Trade Secrets & Non-Compete Blog

Non-Competition Agreements

• Honoring a competitor’s non-compete? – from Rob Radcliff’s Smooth Transitions

• “Head-Start” Rule Applies to Damages, As Well As Injunctions – from Kenneth Vanko’s Legal Developments In Non-Competition Agreements

Miscellaneous

• NLRB Seeks Briefs in Case Alleging Discriminatory Denial of Union Access to Employer Property – from Seth Borden’s Labor Relations Today

• Are You Working Over the Thanksgiving Holiday? – from Harvard Business Review

• The Importance of Small Businesses – from Michael Haberman’s HR Observations

• How to make an open-door policy a reality – from Work Matters

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Do you know? The voluntariness of release agreements

The facts that led to the severance agreement in Gascho v. Scheurer Hosp. (6th Cir. 11/19/10) [pdf] are what make employment law an interesting way to make a living. The legal issues surrounding the enforceability of a severance agreement, however, are what make this post worth reading.

Mary Ann Gascho, the plaintiff, was a 35-year employee of Scheurer Hospital. For the last 18 years of her employment, she was also married to the hospital’s President and CEO, Dwight Gascho. Dwight, it turns out, was having an affair with one of the hospital’s Vice Presidents. Around the time Mary Ann began to suspect her husband’s infidelities, he began physically abusing her. After Dwight admitted the affair and demanded a divorce, Mary Ann confronted the VP, calling her, among other things, “the whore next door.” That confrontation led to Dwight firing his wife. Cooler heads prevailed, however, when the hospital’s HR Director, Greg Foy, converted the termination into a three-day suspension. That suspension dovetailed into an FMLA leave.

Following the leave, the hospital offered Mary Ann a separation package. Foy presented her the agreement, explained and summarizing its key provisions, recommended that she hire a labor-law attorney to review the document, and told her that she would have 21 days to sign the agreement and seven days to change her mind if she did sign it. There was no physical harm or threats of physical harm between the day she was fired and the day she signed the agreement. Her husband, though, did use various methods of persuasion to try to convince her to sign, including lashing out and yelling at her. After consulting with her children, Mary Ann ultimately signed the agreement.

When she sued the hospital a year later for discrimination, the district court dismissed her claims as barred by the separation agreement. The 6th Circuit agreed, examining the following five factors to determine whether the release was “knowing and voluntary”:

1. Plaintiff’s experience, background, and education.
2. The amount of time the plaintiff had to consider whether to sign the waiver, including whether the employee had an opportunity to consult with a lawyer.
3. Clarity.
4. Consideration.
5. The totality of the circumstances.

1. Mary Ann’s experience, background and education. The court concluded that a nurse—with more than three decades of experience and who rose to a management position—could comprehend the meaning and effect of a settlement agreement.

2. Time to consider the waiver and opportunity to consult an attorney. The hospital gave Mary Ann 21 days to review the agreement and seven days to change her mind after signing it. While Title VII does not have a statutory requirement for waivers, the 21 days mirrors the OWBPA’s requirements for waivers of federal age discrimination claims. “This congressional policy in a related civil rights statute bolsters the conclusion that a 21-day consideration period and a seven-day reconsideration period suffices to establish a legitimate waiver.” That timeline gave Mary Ann ample opportunity to consider the agreement and consult with an attorney.

3. The clarity of the waiver. The waiver “releases and forever discharges [Scheurer] Hospital … from any and all claims of any nature … based on any fact, circumstance or event occurring or existing at or before [Mary Ann’s] execution of this Agreement. [It] includes all claims whatsoever … including … claims under …Title VII of the Civil Rights Act of 1964.” According to the Court, “One does not need a law degree to grasp the import of these terms.”

4. Consideration for the waiver. In exchange for the waiver, the hospital offered Mary Ann a year’s salary plus other benefits, which was more than sufficient consideration.

5. Other relevant circumstances. Mary Ann claimed that she was under duress to sign the agreement. The court disagreed:

All bargaining, whether to buy a house, to take a job or to settle a dispute, comes with implicit economic and psychological pressures—that if the one party does not take the offer, it may go to someone else…. The better the offer, indeed, the greater the implied fiscal threat, creating the possibility that a claim of duress grows stronger the more generous the offer. 

That Gascho worried about having to file a lawsuit (and winning it) if she opted not to accept the settlement offer is precisely the kind of pressure anyone (not independently wealthy) would face in this context…. “No legal system can accept an assertion that ‘this contract was signed under duress because my only alternative was a lawsuit.’ That would eliminate settlement—and to a substantial degree the institution of contract itself.” …

Over one month had passed since the last act of physical violence…. Gascho had plenty of time to consider the agreement, plenty of time to rescind the agreement after signature and plenty of time to consult a labor attorney, as one hospital executive (Greg Foy) recommended she do. She spoke with several people before she signed the agreement, including friends and trusted family members (e.g., her children), and none of them advised her not to sign it. It is difficult to square these circumstances with the notion that Gascho’s husband coerced her to sign the agreement.

Like Mary Ann Gascho, anyone is free to challenge the knowing and voluntary nature of a release. As this case shows, however, it is very hard for employees to win these challenges.Courts treat settlement agreements as sacrosanct. If you resolve a case with an employee and obtain a signed agreement with a release that meets these criteria, you can ordinarily rest comfortably that you are free from future lawsuits brought by that employee.

EEOC poised to explore plight of older workers in current economy

Last Wednesday, the EEOC heard testimony that age discrimination is causing older workers to have a difficult time maintaining and finding new employment. The EEOC believes that the current economic climate is exacerbating this problem. At a minimum, it is increasing the number of employees who claim to be victims of age discrimination. Last year, the EEOC received 22,778 charges of age discrimination, which represented 24.4% of all charges filed, up from 16,548 charges and 21.8% in 2006.

The EEOC heard the following testimony:

• William E. Spriggs, Ph.D., Assistant Secretary for Policy, U.S. Department of Labor: “[D]uring a deep and long recession, the lengths of time that people remain unemployed increases. Older workers have been overwhelmed in this current recession and their numbers are high among the worst indicators. They are the slowest to be reintegrated from unemployment to employment, which indicates that their job search is longer and more challenging. This comes at the cost of human capital depreciation for older workers.”

• Mary Anne Sedey, plaintiff-side employment lawyer: She claimed that older workers rarely litigate discriminatory hiring claims, and urged the EEOC to investigate age discrimination in hiring. She cited three reasons: applicants lack information about why they were turned down, they are reluctant to file a claim based on a hunch, and they cannot find lawyers willing to take their claims.

• Michael Foreman, Director, Civil Rights Appellate Clinic, Pennsylvania State University Dickinson School of Law: He discussed the impact of Gross v. FBL Financial Services, Inc., which held that the ADEA requires a plaintiff to show that his or her age was the “but-for” cause of the employment decision. He argued that Gross applies an unreasonably high burden for plaintiffs in age cases, “preventing potentially legitimate claims of discrimination from ever reaching a jury.”

• Deborah Russell, Director of Workforce Issues in AARP’s Education and Outreach Department: She discussed some proactive steps employers in the healthcare industry have taken to meet the needs of the over-50 demographic.

• Cornelia Gamlem, Society for Human Resource Management: She discussed some suggested best practices for recruiting, retaining, and managing mature workers, including workplace flexibility, retention programs, targeted recruitment, and reductions in force management.

EEOC Commissioner Stuart J. Ishimaru said, “The treatment of older workers is a matter of grave concern for the Commission. We must be vigilant that employers do not use the current economy as an excuse for discrimination against older workers.” Going forward, it is clear that the EEOC will target age discrimination as an enforcement priority. Any company that is either reducing ranks via layoffs, or hiring to re-staff as the economy rebounds, should pay extra attention to age discrimination issues in light of this administrative enforcement.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.