WIRTW #229 (the “turn the world on with her smile” edition)

I’ve never seen a full episode of The Mary Tyler Moore Show. Thus, I did not understand why Workforce ranked it as a number 1 seed in its 90th Anniversary Pop Culture Bracket. I’m a child of the 80s, and Cheers (under-seeded as an 8, by the way) has always made more sense as a workplace comedy. That is, until last night. I walked into my in-laws house and this was on their TV:

Now it all makes sense. And I’m going to start catching up on this lost gem on Hulu.

Here’s the rest of what I read this week (and last week):

Discrimination

• “Discrimination lawsuits double as definition of ‘disability’ expands” — from Walter Olson’s Overlawyered
• TSA Screener May Wear Religious Bracelet While on Duty — from Joe’s HR and Benefits Blog
• Be Careful What You Wish For: Walmart Faces Thousands of Lawsuits as Result of Class Action Victory — from Chris McKinney’s Texas Employment Law Blog
• After partial victory, plaintiff seeks cert in 5th Circuit same-sex harassment case — from Mike Maslanka’s Work Matters
• Customer Created Hostile Work Environments as told through a Homer (Simpson) Like Epic of Naked Golf, Butt Skills & Club House Beatings — from Jason Shinn’s Michigan Employment Law Advisor
• Association Is Not A Protected Category or Is It? — from Mike Haberman’s Omega HR Solutions
• EEOC brews up case — from BostonHerald.com

Social Media & Workplace Technology

• The Social Media Guide for Lawyers v. 2.0 — from Ethan Wall’s Social Media Law & Order
• Employers, Are Your Employees Minding Their Own Business? — from Molly DiBianca’s Delaware Employment Law Blog
• US Social Media by the Numbers – May 2012 — from Jessica Miller-Merrell’s Blogging4Jobs 
• Uses of Social Media for Corporate Counsel - Investigating & Defending Claims — from From the Sidebar
• 7 Essentials of a Social Media Policy That’s Actually Useful — from Radian6
• Is Your Workplace BYOD? Know the Risks! — from Stephanie Thomas’s The Proactive Employer Blog
• BYOD wave sparks big security concerns — from TheAppleBlog

HR & Employee Relations

• Do Noncompetes Kill Creativity? — from Phil Miles’s Lawffice Space
• Valid Arguments on Both Sides Re: Use of Credit Reports for Employment Screening — from Nick Fishman’s employeescreenIQ Blog
• No flush, but two of a kind win in a workplace toilet dispute — from Eric Meyer’s The Employer Handbook Blog
• Office love contract policy: What does this mean to you? — from Employment Law Bits
• Should couples work for the same company? — from Suzanne Lucas (Evil HR Lady) at CBS Money Watch
• You’re Damned if You Fire an Employee At Will for No Reason — from damnedif
• Some Hiring Managers Rate the Attractiveness of Your Spouse… — from The HR Capitalist, Kris Dunn
• Mastering the Finer Points of American Slang — from Alina Dizik at The Wall Street Journal

Wage & Hour

• How Is 2012 Like 1947? — from Wage and Hour Laws Blog
• Myles v. Prosperity Mortgage: Dukes Inapplicable to FLSA Certification — from Impact Litigation Journal
• Can Your Boss Fire You For Taking Vacation? — from by Donna Ballman’s Screw You Guys, I’m Going Home

Labor Relations

• Guest Post: NLRB Acting General Counsel Addresses At-Will Disclaimers and More at CBA Annual Meeting — from Dan Schwartz’s Connecticut Employment Law Blog
• The NLRB Acting General Counsel’s third memo on social media: Not so fast — from John Holmquist’s Michigan Employment Law Connection
• Workers Win Facebook Fight Against Huge Supermarket Chain — from Workplace Fairness
• Who Can It Be Now: Employers Told to Know Who Their Supervisors Are — from Employment Essentials
• NLRB Returns for Round Two in Fight for “Ambush” Elections — from LaborPains.org
• Are Unions Necessary? Great Post from The Atlantic — from Labor Relations Institute
• Duke Study Suggests That “Unions Are Better For Your Health” — from TLNT

25 million reasons to tell a good story

Trying an employment case to a jury is an art. You are limited by a jury’s attention span (which, by the way, is getting worse as a result of 1,000 channel cable systems and 140 character tweets) to convey your message as quickly and as simply as possible. Complex legal arguments are out; creative storytelling built around a unified theme is in.

The allegations of racial harassment in Turley v. ISG Lackawanna Inc. are horrible. They involve graffiti about King Kong and the KKK, a toy monkey with a noose around its neck tied to the plaintiff’s car, and death threats. For the full flavor, I recommend reading the court’s opinion denying (in part) the employer’s motion for summary judgment.

Yesterday, the jury returned a $25 million verdict in favor of Mr. Turley on his claims of racial harassment and intentional infliction of emotional distress. According to the Buffalo News, one of the employer’s themes at trial was that “much of what happened at the steel plant is the kind of ‘trash-talking’ that’s common in manufacturing facilities.”

I once handled a case with similarly egregious allegations of racial harassment (KKK graffiti, liberal n-bombs, threats to drag the plaintiff tied to a truck, and a fistfight with his allegedly racist supervisor). The case settled on the eve of trial for several decimal points less than $25 million.

At trial, I was not planning on debasing the plaintiff’s allegations by challenging their veracity (there were too many witnesses that would verify most of them), or by portraying the events as something they were not—such as horseplay or trash-talking. Instead, I built my case around the fact that the plaintiff had resigned in the face of these allegations and voluntarily chose to return to the same workplace a few months later. He only sued (I would argue) out of embarrassment after losing a fight. In other words, I was planning to try the case by challenging the plaintiff’s perception of the workplace and the harm it caused him, not the racial motivation of his co-workers.

I know nothing about Turley v. ISG Lackawanna other than what I’ve read in the above-linked opinion and news story. But, it strikes me that likening KKK graffiti and a toy monkey with a noose around its neck as common “trash talking” is a recipe for a disaster, even if $25 million strikes me as excessive.

Vague complaint dooms employee’s retaliation lawsuit

Susanne Pintagro worked for Sagamore Hills Township as an administrative assistant. When a newly hired intern made her feel “uncomfortable and concerned for [her] safety” she took her concerns to the township’s trustees. The trustees determined that because Ms. Pintagro and the intern had to work the same schedule, and gave her the choice of resignation or termination. After Ms. Pintagro resigned, she sued, claiming, among other things, that the township retaliated against her for reporting the intern’s workplace harassment.

In Pintagro v. Sagamore Hills Twp. (Ohio Ct. App. 5/23/12), the court of appeals affirmed the dismissal of her retaliation claim. It concluded that Ms. Pintagro had not engaged in protected activity sufficient to raise the protections of Ohio’s anti-retaliation statute:

It was Ms. Pintagro’s burden … to establish that she engaged in a protected activity, that is, to demonstrate that she “opposed an unlawful discriminatory practice” such as harassment because of her “race, color, religion, sex, military status, national origin, disability, age, or ancestry.” …

Ms. Pintagro also has not presented any authority for her argument that a court should infer discriminatory intent when an employer fails to investigate a claim of workplace harassment…. Even assuming that [the] actions constituted harassment, it is as likely that his conduct was motivated by a personality conflict or other non-discriminatory reasons as it is that it was motivated by prejudice.

In other words, because Ms. Pintagro could not prove that she complained about unlawful harassment, her retaliation claim failed.

Repeat after me:

We will not do what Sagamore Hills Township did in this case.

When an employee comes to you with a complaint about a co-worker, do not ignore it, do not fail to investigate it, and do not fire the employee (or force her to resign). Yes, you might successfully defend a subsequent retaliation lawsuit based on the vagueness of the complaint. But, you might also step in a huge pile. This court refused to interpret a woman’s complaint than a man made her “uncomfortable and concerned for [her] safety” as a complaint about sexual harassment. Another court, however, could just as easily conclude that a jury should have the final say in interpreting that complaint.

Constructive discharges cannot exist in a vacuum of illegality

A constructive discharge occurs when an employer’s actions make an employee’s working conditions so intolerable that a reasonable person under the circumstances would feel compelled to resign. Usually, a constructive discharge arises in the context of a discrimination lawsuit, satisfying the “adverse action” necessary to support the claim.

What happens, though, when there is no connection between the resignation and the law alleged to have been violated. Can an employee claim that a constructive discharge occurred in this vacuum? Kemper v. Springfield Twp. (Ohio Ct. App. 6/6/12), says no.

Patrick Kemper worked as a patrolman for the Springfield Township police department. The department had a formal policy requiring employees to submit a written request, and receive written permission, before engaging in outside work. Kemper planned to start a side security business. He discussed the idea with his supervisor, Chief David Heimpold, who told him that there would have to be precautions to prevent any conflict with police business. A few months later, Kemper submitted a letter to the department misstating that Heimpold had given permission to operate the business. When the township administrator, Michael Hinnenkamp, confronted Kemper with his lie, and with the prospect of an internal investigation, likely termination, and the loss of his pension and benefits, he resigned.

Kemper sued, claiming a constructive discharge related to an FMLA leave he was taking at the time. The jury awarded Kemper $491,000. The court of appeals agreed that the township had constructively discharged Kemper:

Hinnenkamp let it be known that any disciplinary proceeding would in all likelihood end in termination and that Kemper would lose his pension and other benefits…. Kemper had reasonably believed termination to be a foregone conclusion….

The court concluded, however, that the constructive discharge was lawful: 

But our inquiry does not end with the conclusion that Kemper produced sufficient evidence with respect to the alleged constructive discharge. A plaintiff must also establish a connection between the exercise of FMLA rights and the adverse employment action…. All of the evidence demonstrated that Kemper’s acknowledged dishonesty was the basis for the challenged discharge. There was no threat of discipline prior to the letter submitted to Heimpold and no indication in the record that Kemper's absences—or the conditions that led to those absences—bore any relationship to the adverse employment action.

Employees resign all the time, sometimes for reasons related to poor treatment by their employers. As this case makes clear, unless that poor treatment is connected to protections provided by the law, the resignation cannot form the basis for a lawsuit.

Know when to fish, and when to cut bait

I spent last week on Hilton Head Island, South Carolina. If you’ve never been there, do yourself a favor a take a trip. It's about as perfect of a vacation spot you can find in the continental 48 (see sunset below).

On the last day of our vacation, my family took a dolphin cruise through the Calibogue Sound. It was a hands-on trip for the kids. They got to cast a fishing net, pull up a crab pot, and fish for shark. The ship’s captain told us that they usually catch a lot of shark. For example, the day earlier they had reeled in 19, including two baby hammerheads. So, it was with much excitement that my daughter cast her line into the sound. After about 5 minutes (an eternity for a 6-year-old) she started asking when she would catch her shark. My wife explained that fishing is more about patience and relaxation than actually catching fish. As you would imagine, that did not go over so well with my newly minted 1st grader, although she did stick with it and enjoyed the experience. We, however, were not the only ones having issues. The captain moved the boat to what he hoped would be more fertile water. It wasn’t. She moved again, hoping the third time would be the charm. It wasn’t, and she had to call it a day. Indeed, on our cruise, only one lone shark was reeled in (by the boy next to us, much to my daughter’s chagrin).

As I am wont to do when I am not blogging, I began to think about what this tale could teach you, my readers. Much like fishing, in dealing with marginally performing workers, employers must know when to fish and when to call it a day. And, much like our ship’s captain, you usually don’t quit at the 1st sign of failure.

Employees are investments—of time, training, salary, and benefits. Unless an employee commits an egregious violation of the rules that cannot be tolerated, most deserve multiple chances to prove themselves worthy. Performance problems are not terminable offenses; they are teaching opportunities. Use them to hone your employees, and only terminate when an employee proves himself or herself un-teachable. You will be surprised how many employees you can rehabilitate (and investments you can save) merely by resisting the urge to cut bait too early on your marginal performers.

I’ll miss experiencing the sunsets at Harbour Town, but I’m happy to be home, and, believe it or not, happy to be back at work.

(If you’re interested in reading more about our vacation—and who wouldn’t be—you can jump over to my wife’s blog).

Best of: Despite what some think, employers do not set out to discriminate

Despite what some think, employers do not set out to discriminate:

http://www.ohioemployerlawblog.com/2012/03/despite-what-some-think-employers-do.html

Best of: 10 thoughts for your mobile device policy

10 thoughts for your mobile device policy:

http://www.ohioemployerlawblog.com/2012/02/10-thoughts-for-your-mobile-device.html