A Hanukkah lesson for employers

The story of Hanukkah tells us that in 165 B.C., the Maccabees led a successful revolt against the Greeks, who had invaded Jerusalem and outlawed Judaism. When the Maccabees rededicated the Holy Temple after expelling the Greeks, they only located enough olive oil for the Temple’s menorah to burn for one night. That oil, however, burned for eight nights, the time needed to prepare a fresh supply—the miracle of Hanukkah.

I’ve been thinking of a way to tie this story to the workplace and impart a lesson to employers. The story of Hanukkah is one of perseverance, courage, and fighting for one’s beliefs. Employers are under assault from all fronts—lawsuits from disgruntled employees, overly zealous regulatory agencies and their overly burdensome regulations, and courts that can lack sufficient resources to address these issues properly. It’s easy for businesses throw in the towel, such as by relocating operations out of the country or by paying ransoms to settle meritless lawsuits. Perhaps the lesson here is to simply hold firm.

Happy Hanukkah.

Sometimes it’s not all about the Benjamins: reinstatement in lieu of front pay

James McKelvey, an Army veteran, lost his right hand and suffered other serious injuries trying to defuse a roadside bomb in Iraq. As if his physical injuries were not enough for him to endure, upon returning home to a civilian job in the Army, his co-workers subjected him to more than a year of disability-related harassment. For example, they repeatedly called him “lefty” and “cripple.” He resigned, believing the work environment was so hostile that he had no realistic option but to quit. He also sued for constructive discharge, for which a jury awarded him nearly $4.4 million in front pay.

In McKelvey v. Secretary of the United States Army (6th Cir. 12/14/11) [pdf], the court concluded that the trial judge was correct by taking the monetary verdict away, and instead ordering that McKelvey return to his Army job (albeit with improved working conditions and higher pay):

McKelvey can be reinstated to work at the armory quickly, without disrupting operations and without displacing another employee. In point of fact, the Army continues to offer him a position at the armory at a higher salary than he was earning before and under new supervisors. McKelvey’s relatively young age, 38, likewise suggests that front pay is not appropriate, since it requires highly speculative projections about his earning capacity and about employment decisions decades into the future.

In this case, reinstatement was the court’s decision, not the employer’s. Nevertheless, it raises an interesting point. If you’ve been sued, and you’re reasonably confident that your company was in the wrong, and you are comfortable reintegrating a litigant into your workplace, don’t fail to consider an offer to bring the employee back to work. It’s called an “unconditional offer of reinstatement,” and when used correctly (with the right employee and in the right case), it is an extremely powerful tool. The key word is “unconditional.” The offer must be to the same or equal position, with equal (or better) pay and benefits, and with full back pay and restoration of other lost benefits. The benefits are several. Such an offer cuts of the employee’s entitlement to back pay or front pay, in addition to severely hampering one’s ability to prove a right to punitive damages.

Consider adding the “unconditional offer of reinstatement” to your quiver of litigation tools. It just might rescue a good employee from the litigation scrapheap, and save you a few dollars too.

Everyone’s a little bit racist?

According to CNN, the Ohio Civil Rights Commission is reviewing the case of a Columbus landlord who has a little problem with African Americans swimming in her building’s pool. Worse, she expressed her opinion via this poolside sign, which reads, “White Only.”

In her defense, the landlord said that she has to “stick up” for her “white rights.” I’m not sure what other reaction I can have to this story other than this:

In all seriousness, there are some cases you just can’t do much about. People are who they are. I once had a racial harassment case in which the accused harasser dropped n-bombs like Braylon Edwards drops passes. Our job as management-side employment lawyers is to know when it's best to go for it and when it’s best to punt. It’s safe to say that I think this Columbus landlord made the wrong decision.

WIRTW #205 (the “11 x 17” edition)

Employers have a mere 6 weeks, until January 31, 2012, to post the National Labor Relations Board’s new employee rights poster. It applies to all employers under the NLRB’s jurisdiction, union and non-union alike. Copies are available for download, in English and Spanish, from the NLRB’s website. For more information, I recommend Dan Schwartz’s Connecticut Employment Law Blog, where Dan posted a nice summary earlier in the week.

(Don’t forget, we’re halfway through December, which means you only have two weeks left to vote for the ABA Journal’s Blawg 100. If you have not yet voted, click here to register, and here to vote. Thanks for your support.)

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

Discrimination

• EEOC sues construction company for not hiring applicant with epilepsy to run heavy equipment – from Walter Olson’s Overlawyered
• Obama EEOC Wipes Out Jobs By Making Hiring More Difficult – from Washington DC Examiner
• 10 reasons for employers to be jolly about the ADA (says the EEOC) – from Robin Shea’s Employment and Labor Insider
• The ADA May Invalidate a High School Diploma Requirement – from Mike Haberman Omega HR Solutions
• The New EEOC: Aggressive, Litigious and High Profile – from In House
• Fact or Fiction: Courts recognize retaliation against ex-employees – from Eric Meyer’s The Employer Handbook Blog
• Baird v. Gotbaum – from Paul Mollica’s Outten & Golden Employment Law Blog
• Plaintiff-Employee’s Case Dismissed for Giving Differing Reasons for Leaving Employment – from Russell Cawyer’s Texas Employment Law Update

Social Media & Workplace Technology

• The 40 Most Memorable Tweets Of 2011 – from BuzzFeed
• Jack and Tweets - A Bad Workplace Combination – from Phil Miles’s Lawffice Space
• A Social Sanity Manifesto for 2012 – from Harvard Business Review
• (Alleged) Rogue Employee of the Week – the Case of the Porn Star Teacher – from damnedif
• Should my employer pay for my cell phone? – from Ask a Manager
• New Study Highlights Warning Signs of Corporate Data Theft – from i-Sight Investigation Software Blog
• The Tablet Revolution and Why It Matters to Your Small Business Technology Plan – from COSE Mindspring
• Smartphone penetration skyrockets in 2011, iPhone becomes No.1 handset – from Boy Genius Report
• Court Denies Motion to Provide Access to Social Networking Sites in Civil Discovery – from The Volokh Conspiracy
• Louis C.K. sells his latest live show directly to fans, calls anti-DRM experiment a success – from The Verge

HR & Employee Relations

• Prof says “Rudolph The Red-Nosed Reindeer” promotes bullying – from David Yamada’s Minding the Workplace
• 9 Worst holiday gifts from bosses – from Evil HR Lady, Suzanne Lucas
• The Employee/Employer Relationship: Breaking the Barrier – from Jessica Miller-Merrell’s Blogging4Jobs
• The Inevitable End of Year Employment Move – from Rob Radcliff’s Smooth Transitions
• Is My Offer Letter a Contract? – from Donna Ballman’s Screw You Guys, I'm Going Home
• Your boss may be ruining your marriage – from Life Inc.

Wage & Hour

• Properly Accounting for Holidays in Calculating FMLA Leave – from Stephanie Thomas’s The Proactive Employer Blog
• A Holiday Wage and Hour Checklist: Are You Naughty or Nice? – from SmartHR
• DOL Pushes “Initiative”-Focused FLSA Enforcement – from Wage and Hour Laws Blog
• Southern District of New York Judge Holds that Fair Labor Standard Act Collective Action Waivers in Arbitration Agreements Are Unenforceable As a Matter of Law – from Employment Matters Blog

Labor Relations

• The NLRB: Now Extracting Ransom (for Unions) From An Employer Near You… – from The HR Capitalist, Kris Dunn
• Put the Brakes on Overregulation – from The ChamberPost
• New NLRB Nominations – from Workplace Prof Blog

Is spike in religious discrimination claims a reflection of our polarized society?

We are not a tolerant society. We like to think that we are, but in reality, not so much. Instead, we are a polarized society. More and more, we live on the fringes with little tolerance for those whose viewpoints differ from our own. For example, consider that Lowe’s pulled their ads from TLC’s new reality show, All American Muslim.

We should not be surprised then, that religious discrimination claims in the workplace are trending upward. From Marcia Pledger, writing in The Columbus Dispatch (hat tip: i-Sight Investigation Software Blog):

Equal Employment Opportunity Commission statistics show that religious discrimination complaints in workplace settings have more than doubled from a little over a decade ago, resulting in roughly $10 million in settlements. Last year, nearly 3,800 were filed.

“Religion has increasingly moved into the private sphere, so when it does pop up in the workplace, we’re less equipped to deal with it in a rational and evenhanded manner,” said John Gordon, chairman of the religion department at Baldwin-Wallace College in Ohio.

Our Founding Fathers had enough foresight to separate church and state. 220 years later, we should have enough experience to separate church from work.

Federal Court pilot program tries to simplify discovery in employment cases

No one enjoys paper discovery. Any practitioner who tells you otherwise is either insane or lying. It’s time-consuming and expensive to gather and review information to produce, and it’s painful to squabble with opposing counsel over information withheld.

In an attempt to address and alleviate some of these concerns, the Federal Judicial Center has published its Pilot Initial Discovery Protocols for Employment Cases Alleging Adverse Action [pdf]. These protocols set forth the documents and categories of information that the plaintiff and defendant must turn over during the initial disclosure process, voluntarily and without a formal request, and no later than 30 days after the employer files its answer or responsive pleading. Molly DiBianca’s Delaware Employment Law Blog provides an excellent summary.

These disclosures are comprehensive, and cover many of the documents that will be exchanged in most garden-variety discrimination lawsuits. Of all of these disclosures, I want to point out one curiosity. Employers are not required to disclose the entire employee handbook, but only its table of contents and index. The only policies that employers are required to initially turn over are those “relevant to the adverse action in effect at the time of the adverse action,” such as discipline or EEO policies. 

In light of these protocols, maybe we need to reconsider the rote production of entire employee handbooks in discrimination cases. Maybe we also need to reconsider the inclusion of tables of contents and indices in handbooks, to limit their discoverability at the outset litigation in federal court.

Bullying and at-will employment

David Yamada is a law professor and the director of the New Workplace Institute at Boston’s Suffolk University Law School. He is also the author of the Healthy Workplace Bill, draft model legislation that, if ever passed, would impose liability on employers for employees who are bullied in the workplace, regardless of any protected status.

Yesterday, on his blog (Minding the Workplace), Professor Yamada made the following argument in favor of generalized anti-bullying legislation:

In the U.S., the combination of at-will employment and the lack of protections against workplace bullying make for a brutal combo punch that often leaves mistreated workers legally powerless…. In America—in contrast to many other nations—at-will is the presumptive employment relationship. This leaves workers especially vulnerable when they are subjected to severe workplace bullying by a supervisor, enabled by the employer. Because most bullying falls outside the protections of current employment law, workers have scant legal recourse, and employers have little incentive (at least from a liability standpoint) to act preventively and responsively.

In other words, Professor Yamada argues that states need to pass the Healthy Workplace Bill because at-will employees can be fired for any (not otherwise unlawful) reason. This argument validates a point I made all the way back in May 2007: the passage of anti-bullying laws will destroy employment at-will.

To quote another point I made just last year:

Employers who turn a blind eye to bullying … are doing their businesses and their employees a disservice. But, the issue is not whether bullying impacts its victims. We can all agree that it does. The issue is whether we need legislation that has the probability of turning every petty slight and annoyance in the workplace into a lawsuit…. Indeterminate bullying … should be self-regulating, and not a tort that has the likelihood of obliterating at-will employment by hamstringing supervisors and managers from supervising and managing.

Businesses need to have the discretion to manage their workforces. Anti-bullying laws will eviscerate that discretion. Just because generalized bullying is not illegal does not mean that employers lack “incentive to act preventively and responsively,” as Professor Yamada argues. To the contrary, the marketplace creates the incentive to treat employees well. Bad bosses beget revolving-door workforces, doomed to failure. Good bosses create loyalty and retain good employees, which breeds success. Imposing liability merely for being subjected to a bad boss sets a dangerous precedent that will eliminate the “at will” from all employment relationships.