In the long run the pessimist may be proved right, but the optimist has a better time on the trip.
─Daniel L. Reardon

To Your Resounding Success in 2010

After receiving a huge response to the following email, I decided to share it with everyone here on the site as well.

The Abusive Boss Who Got Sued For “Negligent Infliction of Emotional Distress”

Have you felt emotional distress at work because of the abusive way your boss treats you? Many of the people who contact me for help in dealing with a bully boss feel this way, and they want to sue their boss in court for all the workplace abuse he or she has inflicted.

When someone like this tells me they want to sue, the first thing they say is that their boss caused “a hostile work environment.” (If you still think you can sue for a hostile work environment, you need to sign up for my 7 Free Work Law Secrets Email Course). The second thing people want to sue for is “intentional infliction of emotional distress.” This also rarely works, and I don’t advise pursuing it, but…

…but a women named Gina Strong in Washington State recently has some success suing her boss for negligent infliction of emotional distress. Because she also sued her boss for intentional infliction of emotional distress (and lost on that one), her story is a great example of what legal claims can work if you want to sue your boss and which legal claims don’t (usually) work. Having a boss who did more than just call her names is where Gina’s story starts.

Gina Strong’s Emotional Distress

Gina Strong worked in a school district print shop, where Jim Terrell supervised her. Terrell screamed at Gina every day. Terrell criticized her work in a sarcastic unprofessional manner. Terrell told blond jokes in Gina’s presence, and yes Gina was blond. Terrell even ridiculed Gina’s personal life: he made fun of her new house; he mocked her husband’s job; and he told her that her son would soon realize that she was a “bum” mother.

How did Gina respond to Terrell’s workplace harassment? She responded the in the same way as many of the people who are reading this article have have responded to their own abusive work environments: she vomited, she experienced anxiety attacks, she suffer from depression, and she even began to have a heart arrhythmia.

Gina went to the school district office and filed a harassment complaint against Terrell. A district office employee, Nichollet Koch “investigated” the allegations and found (like every other in-house investigation) that nothing Terrell did to Gina “rose to the level of illegal harassment.” In other words, the organization knew that Terrell was an abusive asshole, but it wasn’t illegal abuse. So, the school district didn’t punish Terrell. It “recommended” that Terrell take some classes to improve his “management style.” Gina was not satisfied.

After the district closed it’s file on the matter, something made the investigator, Koch, look further into Terrell’s behavior. Soon after the district office recommended that Terrell be terminated. Terrell resigned before that happened.

Three months after Terrell had resigned Gina filed a lawsuit against the district officer and Terrell as individuals (not as agents of the school district). Both defendants filed motions for summary judgment – which asks the judge to throw the case out before trial. The court did throw out the case, but Gina was not satisfied. She filed an appeal.

The Appeals Court considered whether Gina could sue her boss for Constitutional violations (the court said no), whether she could sue her boss for “intentional infliction of emotional distress” (the court said no again) and whether she could sue her boss for “negligent infliction of emotional distress” (the court said yes).

The Appeals Court noted that Gina did not allege that Terrell sexually harassed her, or that his conduct created a “hostile work environment based on sex”. Instead the court observed that “the majority of her claims related to Terrell’s method and style of supervision.”

Court Acts on Gina’s “Intentional Infliction of Emotional Distress Claim”

The legal claim of “intentional infliction of emotional distress” is a “tort” (which is not a dessert in this context). A “tort” is a civil wrong – as opposed to a criminal wrong. Torts come from the history of judges writing written decisions about why the judge decided in favor of one side and against the other side.

In the state of Washington, for you to prevail against your boss on the tort claim of “intentional infliction of emotional distress” (IIED for short) you must prove that:

1. Your boss engaged in extreme and outrageous conduct;

2. Your boss intentionally or recklessly inflicted emotional distress on you; and

3. Your boss’s outrageous conduct actually caused you to feel severe emotional distress.

The Washington State Supreme Court adopted these elements from a publication called the Restatement (Second) of Torts sec. 46 (1965). I’ll explain the Restatement more fully in another article, but for our immediate purposes all you need to know is that most states follow the Restatement; so most States, including your state, use the same three elements above for their tort of IIED.

Most people read the elements of IIED and think “Perfect! This is how I’m going to sue my boss!!” The elements seem to fit what their boss does to them. It just sounds right. Their boss purposefully puts them through hell, and they can’t sleep, feel depressed, suffer from anxiety, and begin getting ulcers.

The problem is, most of what your boss does to put you “through hell” does not meet the very high threshold of what it takes to qualify as “outrageous.” In Gina’s appeal the court decided that the first element of IIED, outrageous behavior, must be “so outrageous in character and extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.”

IIED, said the court “does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.” The court claimed to be sympathetic to Gina’s plight, but said that what her boss did was more in the vein of “insults” and “indignities” and did not cross the boundary into something “beyond all possible bounds of decency” and “atrocious”.

Victory! The Court Allows Gina’s Claim of Negligent Infliction of Emotional Distress

After dismissing her IIED claim, the court turned to Gina’s legal claim against Terrell for the tort of Negligent Infliction of Emotional Distress (NIED). This time, the Appeals Court decided that what Terrell did could possibly rise to the level of NIED, and therefore allowed Gina to take Terrell to trial on the NIED claim.

NIED is more often recognized in the workplace setting when “it does not result from an employer’s disciplinary acts or its response to a workplace personality dispute.” The elements of this claim are:

1. Boss had a duty to refrain from conduct that would foreseeably harm you;

2. Boss breached the duty of #1, and did engage in conduct that would cause you forseeable harm;

3. The boss’s conduct in #2 directly caused you harm

4. You actually were harmed (you are not exceptionally tough, and didn’t manage to shrug it off);

5. You have objective medical evidence that you experienced emotional distress (such as your doctor had to prescribe anti-depressants, sleeping pills, or high blood pressure medication).

In Gina’s case against Terrell, she claimed that he did the following things (#2) and had a duty not to (#1) which directly caused (#3) her actual harm (#4), and she also had seen a doctor who could verify her “emotional distress” harm. So, here are the acts that made up element #2, what the boss Terrell should NOT have done:

• He continuously made demeaning comments and jokes about her blond hair until she dyed it brown

• He mocked the house she purchased

• He mocked her husband’s job

• He called her a “bum mother”

• He spit in her face as he screamed at her for using the wrong bulletin board for union information

• He stood so close to her while screaming in her face that she feared he would strike her and felt his spit hitting her face

• He disconnected the telephone during the night shift so she could not call out of the print shop

Terrell tried to argue that these actions could not possibly amount to NIED, because they were all “workplace personality disputes” or were related to discipline in the workplace. The court didn’t buy that argument for a second.

The court pointed out that spitting in someone’s face can equal fourth degree assault. Making someone believe you are going to hit them can equal battery. Neither of these two things are a “mere workplace personality dispute.”

The court also pointed out that there was no way the boss, Terrell, could convince them that his comments were all work related. Terrell’s mocking of Gina’s personal life and taunts about her hair color were “rude, boorish, and mean-spirited and were not done in furtherance of legitimate work-related topics… Terrell’s conduct regarding [Gina's] personal life was not a workplace dispute, although it occurred in the workplace.”

The court then reversed the lower court, and ordered that Gina be allowed to go to trial in front of a jury on the NIED claim.

Undercover Lawyer’s Take Away Tips:

1. Don’t believe that you can sue a jackass boss for acting like a jackass by using “intentional infliction of emotional distress;” your best bet is, and always will be, to get yourself in a protected class.

2. You might be able to sue your boss for negligent infliction of emotional distress, but only if your state recognizes this tort and your boss is attacking you as a person and not as an employee.

3. Keep a journal, take notes, write everything down. It bears repeating that you need to keep dated quotes of what your boss says and does. To pursue an negligent infliction claim you will need to show that he or she lashed out at you in ways that are completely unrelated to workplace issues.

If you want to download the full case to read for yourself, or to highlight the NIED portion and hand to your HR Department when you turn in your own boss, you can view and print it here:

Does your boss attack you as a person, and not your work as an employee? Tell us about it in the comments section below.

Can Your Abusive Boss’s Unattainable Goals for You Actually be Discrimination Against You?

A performance improvement plan (or “PIP”) is not discriminatory by itself.  But scores of employees who have bought “Work Laws Exposed” and utilized their free phone consultation with me have described feeling like their boss was trying to “get back at them” by setting astronomically high goals at the employees next appraisal or in a PIP.

• One female employee told me how she used FMLA leave to take her autistic son to a series of therapy sessions; soon after returning to work her boss placed her on a PIP and assigned her completely unattainable goals that she had to meet “or face termination”;
• One older male employee told me how he noticed that his boss, a first time supervisor, was driving out all the employees who were also older and more experienced; when the employee told HR that the supervisor was targeting older workers and pushing them out of their jobs, HR told the supervisor, and the supervisor immediately place the employee on a PIP that included goals no one could possibly satisfy.

Although these are but a couple of examples of how a bully boss can create a hostile work environment by setting unfair goals for employees, the truth is that I hear examples of this happening each and every week.  The bad news angle of this: bosses probably won’t stop doing this anytime soon.  The good news angle?  Now there is something more you can do to fight back against your bully boss.

Why Does This Happen So Much?

What your boss is doing is trying to get back at you, punish you, or drive you out of your job by “focusing on performance.”  That’s what HR and defense lawyers (which I am one, if you recall) tell bosses to do.  “Don’t call employees names or taunt them, because that discriminatory.  Instead, focus on performance.”  Of course what lawyers and HR people mean is to focus on the employee’s actual performance — to hold that person accountable to the same standards that every other employee is held to.

But is that what actually happens?  You know the answer if you are reading this.  The boss doesn’t merely hold the employee to the same standards as others.  The boss is an angry bully who is determined to get rid of the employee, so the boss creates crazy “work plans” and PIP’s that Superman could not satisfy.  And here’s the key — this is the part you need to identify in your own workplace — the “extra” part of a work plan or PIP, the part that goes beyond what other employees have to achieve and is solely imposed on you so that you will be “set up to fail”, THAT is what makes it discriminatory.  And by discriminatory, I mean illegal.

You can complaint to the EEOC or your state’s Dept of Labor and they will punish your company and your boss.  Does that sound too good to be true?  Well, here is an example of just such an employee who recently took his boss and company to court for this very thing.

Recent Real Life Case

In Willnerd v. First National Nebraska,(http://www.ca8.uscourts.gov/opndir/09/03/073316P.pdf) Jeff Willnerd sued his bank-employer for violating the Americans with Disabilities Act (“ADA”).  What the bank really did, however, was run Jeff out of his job by telling him that he had to meet crazy-high loan production goals or be fired.  Other employees with Jeff’s same job did not have to meet these same goals.  No one at that branch of the bank had ever been assigned such high production goals, nor has any employee since.  Since Jeff was being treated so differently than he other employees, he needed to ask himself, how am I different?  Why single me out and not the others?

The bank claimed that Jeff was terminated as part of an economically motivated reduction in force — and that Jeff specifically was selected because of his poor performance.

Jeff believed that reason he was singled out was because of his voice.

Jeff Willnerd began working at the bank in Beatrice, Nebraska in 1982.  He ultimately worked there for 20 years, but in 1999 his voice started to cut out on him.  His condition “baffled his doctors” and “it took considerable exertion for [him] to speak.”  By 2001 his mysterious medical condition had reduced his voice to a mere whisper.  Even then, however, his numerical production numbers and performance reviews were comparable to other employees at the branch.

Despite his solid performance one of the corporate supervisors, Christopher Kisicki, expressed concerns about Jeff’s voice to other employees, asked customers about their perception of Jeff’s voice, and was present when Jeff’s co-workers made fun of his voice.

In 2001 bank headquarters in Omaha began consolidating branch functions at the corporate office.  In February of 2002 Kisicki and another corporate supervisor, Ulferts, met with employees at Jeff’s Beatrice branch about cross-selling services and increasing sales.  Later Kisicki and Ulferts testified that they were mainly concerned with the under performance of two personal bankers at the time.

Despite that, only Jeff received a production quota after the meeting.  Jeff characterized the quota “as an impossible to meet goal established to guarantee his failure.”  Kisicki and Ulferts told Jeff to double his production volume from $2 million to $4 million, or he would be fired.  The court noted that this goal required Jeff to “single handily outperform the entire branch’s mortgage-lending voume at a level the branch ultimately failed to achieve at any time prior of following his termination.”

In May of 2003 Ulferts met with Jeff and told him that he had 90 days to improve his “overall proactive sales effort” or he would be fired.  No other employee at the Beatrice branch of the bank received such an ultimatum.  Although Jeff’s sales production did increase, he did not meet his production quota.  Ulferts described Jeff’s improvement as “a good effort.” Nevertheless, in September of 2003 Ulferts terminated Jeff from the bank where he had worked for 20 years.

Jeff Willnerd Sues First National Bank

Jeff filed suit in court, alleging that the bank fired him from his job in violation of the Americans with Disabilities Act.  Specifically, he said he was discriminated against when the Ulferts and Kisicki assigned him unattainable quotas, then terminated him for failing to meet the un-meetable quotas.

The bank tried to argue that it was solely concerned with Jeff’s performance numbers, that Jeff had been warned that he would be fired if he didn’t “meet his numbers” and that when he didn’t meet them he was fired.

Court’s Holding About Unattainable Goals

The court found for Jeff, finding that the bank’s “strictly performance” argument for terminating Jeff was a mere subterfuge for it’s desire to get ride of him because of his voice condition.  The court made the following statement, which is worth copying and keeping on hand at your desk:

The impossible to meet goals, together with Kisicki and Ulmer’s comments and inquiries about Jeff’s voice, made the bank’s “strictly performance” reason for firing Jeff unbelievable.

The Undercover Lawyer’s Take-Away Tips:

1. Ask Yourself if Your Performance Goals are Realistic: You should not have to live under the pressure and threat of having to meet an astronomical performance goal or face termination from your job.  A court will be willing to at least evaluation whether your PIP or appraisal was truly meant to increase performance, or was actually a screen for a discriminatory desires to terminate you.

2. Compare your performance goals to others: If you DO feel that your bully boss is assigning you impossible to meet goals in a PIP or appraisal, double-check yourself by comparing your performance goals to the goals assigned to employees who are at your same level.  This was a big part of why the court sided with Jeff in the case above; no other employees had any performance quotas, let alone quotas as difficult to satisfy as Jeff’s.

3. Listen and Document What You Hear. Your case becomes many times stronger when you document discriminatory sounding remarks made by management.  Jeff found employees who testified that management allowed people to make fun of Jeff’s voice, and management actually talked to customers about Jeff’s voice.  It’s this evidence combined with the impossible quotas that together put Jeff’s case over the top.  Write down everything you hear that might even possibly be interpreted as discriminatory and you’ll give your case a huge boost.

Your Boss Ever Retaliated Against You in Your Appraisal or ‘PIP”?

If you have experienced this or seen it at your own work, tell us about it in the comments section below or in the forum at http://www.undercoverlawyer.com/forum/

If you want more practical insider secrets to taking back your workplace from a bully boss or harassing supervisor, check out the store page at http://www.undercoverlawyer.com/store-page

Faking Disability? And, Lawsuit Caused by Abusive Boss

You decide if this police chief was faking his disability:

Former police chief for city was no longer disabled, and thus, he was not entitled to continue receiving not-on-duty disability pension. While former chief could not work as ordinary police officer because of injury to left knee, his disability did not prevent him from functioning as a supervising law enforcement officer in an administrative position within the police department. A videotape of the former chief performing as rodeo clown showed him running, jumping, climbing fences, dancing, running from bulls, leaping on top of and off barrels, climbing into and carrying barrels,and being rammed by bull while crouched inside a barrel.
Rhoads v. Board of Trustees of City of Calumet City Policemen’s Pension Fund, 810 N.E.2d 573 (2004)

Nordstrom Agrees To Pay $292,000 to Settle Harassment Lawsuit Caused by Abusive Boss

Employees complained that an Alterations Department Manager made harassing remarks to Hispanic and black employees.  Despite the employees’ complaints, the harassment did not stop.  Nordstrom recites that it investigated the matter, but found “no evidence of harassment.”  One employee, Gloria Pimental, filed a formal complaint with the EEOC in 2006.  A a year later, in 2007, the EEOC filed a case against Nordstrom.

As a result of this settlement Nordstrom will make payments to 10 different employees and agreed that its managers will undergo harassment training twice per year, instead of every two years.

Curt’s Take: I think I know why Nordstrom said it couldn’t find evidence of harassment and discrimination… it’s because it was looking for proof that the Alternations Dept Manager called the Hispanic and Black employees racial names.  It truth, I’m near certain that she was a bullying jerk to everyone in the department.  She was a boss who made her employees feel harassed, stressed, and scared for their jobs.

When Nordstrom looked into it, however, they just saw a mean jerk.  Nordstrom didn’t see a person who used racial epithets or told racials jokes.  What the company was missing, however, is that the target of SOME of the bully-manager’s ire DID belong to protected classes.  Those people stepped forward and said “Hey EEOC!  Over here! We’re Hispanic and black and we’re being harassed by our boss.”  That’s when the EEOC stepped in.  Nordstrom could have avoided this huge verdict by making sure its managers don’t harass and abuse employees who genuinely try hard and want to do a good job.

To learn more about all the techniques that can save you from a Bully Boss or Hostile Work Environment, click HERE.

Meeting “Efficiencies”

One reader of Undercover Lawyer contributed the following piece based on his own experiences at a large employer in Southern California.  Our guest writer, Brian, followed the advice in “Work Laws Exposed” and filed claims with California ‘s DFEH.  He has now retained a California attorney to further fight back against the Hostile Work Environment he had to live through.  Here are Brian’s insights:

MEETING “EFFICIENCIES”

Every now and then a company needs to “meet efficiencies”, which also means to get rid of employees for whatever reason; (over budget, employee complains, don’t like, asks for training, wants a raise, etc).

How the game works:

A manager is usually asked to lunch by his/her supervisor. During lunch the supervisor will inform the manager that the company has a problem and needs their help. The manager is then told that employee/s need to go for whatever reason.  FYI – This is also a test to see the manager’s loyalty towards the company. Companies are very selective when playing this game. Think of it more like a baseball manager needing a relief pitcher. Before he calls down to the bull pen he usually has a certain pitcher already in mind. That’s the way some companies treat this game. The need to “meet efficiencies” - which manager should we use?

Manager pool the Company Pulls From:

1. Brand new manager

2. A manager who is a single parent

3. One that has pulled this off successfully before

Who’s at Risk:

Usually companies target high earners or whoever they feel is weak. Once the manager targets the victim or victims, then that manager starts the game of discipline. The goal is to either terminate or have the employee/s resign.  *Note – (managers usually do not touch union employees. They target single parents, car poolers and others). They will discipline the employee/s for any and everything.

Conclusion:

Let’s say the manager terminates the employee or employees as told. The following will occur:

1. The manager successfully terminates the employee/s and they are never heard from again.

2. The manager terminates and the employee sues:

a. Depending on the case, most companies settle quickly and quietly at a fraction of a trial verdict.

b. If any money is paid out for whatever reason, that manager will be terminated shortly after.

Whistleblower Stops The Train of Hostile Work Environment

Federal OSHA ordered Union Pacific Railroad to give the welder his original job back, repay the welder for all the time and mileage he spent commuting to the second job he was transferred to, pay his attorney fees and pay him compensatory damages.

OSHA doesn’t release the names of employee-whistleblowers, but here’s what we do know about the situation: the employee was a welder based in Beverly, Iowa, who worked on repairing railroad tracks for Union Pacific Railroad. You’ve heard the old adage that you’re never supposed to stop on railroad tracks, right? Well that’s exactly where this welder spent his work day — sitting on railroad tracks. It’s dangerous work.

So one day he is particularly concerned about on-coming trains. In fact he goes to his Track Manager and asks for a lookout. “Hey, while I’m looking down at my welding torch could we have someone there looking out for trains?”

“No.”

“Well, here’s some ideas for some tools that would make the welding job more safe.”

“You can’t have them.”

So what happens to this employee for speaking up? He’s rewarded with a hostile work environment. A retaliatory, illegal hostile work environment. In fact the Track Manager was so mad at the welder that the Track Manager tried to terminate the employee by eliminating his position, and forcing him to quit or accept a welder job that was further away — 131 miles (over two hours driving) further away in Marshalltown, Iowa.

But our welder didn’t cave in. He fought back against his bully boss and filed a complaint with OSHA. He kept his job, made the horrible commute, and argued to OSHA that the job transfer created a hostile work environment in retaliation for raising safety concerns. There was an investigation, a hearing, and the bully boss lost.

The OSHA investigator concluded that the Track Manager acted illegally when he eliminated the welder’s position and forced him to chose between resigning or taking a job two hours away. The investigator noted that the manager’s actions not only made the welder’s work day longer and his commute more expensive, but the change also “took him away from his family for extended periods of time.”

OSHA said that this story should be a lesson to other managers. “A supervisor does not have the right to abolish a job position because he becomes annoyed by a worker voicing safety concerns,” said Charles E. Adkins, OSHA’s regional administrator in Kansas City, Mo. “While OSHA is best known for ensuring the safety and health of employees, it is also a federal government whistleblower protection agency.”

To learn how to fight back against your own Bully Boss and protect yourself from an illegal hostile work environment, get the book that is helping employees across all fifty states, “Work Laws Exposed” by Curt K, the Undercover Lawyer.

The Abusive Boss Who Lost in Court

Download PDF Transcript

Abusive bullying boss ruining your work? You need to hear about Joe.

Joe is a hospital perfusionist (the person who operates the heart-lung machine during an open heart surgery).  Well Joe’s boss, a surgeon, yelled at Joe, cussed at Joe, shook his fist and threatened Joe’s job. Joe got sick.  Literally sick.  As in having to go to his doctor and get anxiety medication, dreading every single work day morning type of sick.

Joe didn’t just turn the tables on his boss, Joe freakin’ flipped the tables over.  Here’s how:

The Bully-Boss Surgeon
Joe Doescher’s “boss” was a cardiovascular surgeon named Dr. Daniel Raess. Dr. Raess behavior included yelling, screaming, and swearing at Joe with “clenched fists, piercing eyes, beet-red face, [and] popping veins.” The final incident ended with Joe believing that Dr. Raess was going to hit him, but at the last second Dr. Raess screamed “You’re finished, you’re history” and he stomped out of the room.

The Anxiety Stricken Employee
Joe felt like Dr. Raess damaged Joe’s ability to do his job, his ability to interact with his wife and family, and caused him to suffer from anxiety. Joe was even diagnosed with a “major depressive disorder,” a “panic disorder,” and an inability to focus.

Joe Strikes Back
So Joe filed a lawsuit against Dr. Raess, alleging that Raess was a “workplace bully” who assaulted Joe and inflicted emotional distress. Joe’s lawsuit went all the way to the Indiana Supreme Court, who were keenly interested in the testimony of Joe’s expert witness, Dr. Gary Namie, the nation’s leading Bullying Expert.

The explosive result in this case made national headlines, but don’t settle for a sound bite explanation. See for yourself how Joe Struck Back, and how the result directly affects YOU.

Subscribe to the “Hostile Work Place Podcast” right now by clicking on the “iTunes” button below; OR scroll down to the media player and easily listen to Episode 8 through your computer’s speakers. No ipod required.

Raess v. Doescher, Indiana Supreme Court (April 8, 2008).

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Can My Employer Do That? Part One By: Jenn S.

In a busy employment law practice, I field a lot of questions from employees who want to know whether an action taken by their employer was “illegal.” In the vast majority of cases, the action of the employer is not illegal per se, though it may have been grossly unfair, blatantly discriminatory, or in extreme bad taste. However, there are situations where an employer is acting illegally and quick action is necessary. The following are some common and some unusual questions from employees who call wanting to know, “Can my employer do that?”

Can my boss tell me to cover my tattoos / cut my hair / take out a piercing? Freedom to express yourself is surely a great right in America.  But, if you want to hold a job you’d best take note of your employer’s appearance standards.  An employer absolutely can enforce rules about how you look – hairstyles and colors, jewelry choices, clothing styles, tattoos and piercings, makeup, shoes – it is all up to your employer, especially if your job involves interaction with the public. In a customer service-oriented position, your personal appearance speaks volumes about your employer, so it shouldn’t be a shock that your employer has a keen interest in how you look on the job.

One of the most common questions I’ve received is “How can my employer allow women to wear earrings but not men – isn’t that gender discrimination?” No, folks. In most instances, the employer can control how its employees appear to customers. Illegal discrimination might rear its head in relation to ethnic or religious head wear but it is a rare case, indeed.

Can my boss deduct my “mistakes” from my paycheck? Employees often ask whether their employer (usually a retailer or restaurant) can deduct accounting mistakes, such as a cash drawer shortage, from their paychecks. The answer is a resounding “NO.” If your employer ever attempts to hold you responsible for a shortage or damage to an item or some other loss by withholding any portion of your pay, you need to go straight to your state’s wage and hour unit to file a claim. The only time an employer can make deductions from your paycheck, other than your regular pay day withholdings, is if they have express permission from you in a signed writing.

Can my employer look through my desk or read my email? Yes. There is no “my” at work. Your employer owns it all and as such, has a general right to access areas that you might consider private. I often counsel employees that they should have no expectation of privacy in the workplace. Do not bring or keep things in the workplace that you do not want your employer to know about, and that includes thing in your email account, voice mail system, and those “secret” files you’ve got stored at the back of your desk. Your employer is not acting in an illegal manner by examining those things – anything that is located at work or is on an employer’s network is generally fair game. Therefore, keep your personal things personal and out of the workplace. Big Brother is watching you.

Can my employer tell me I stink? Seems like a crazy question but – I’ve actually been asked this. A woman called my office wanting to know if it was illegal for her employer to counsel her about her body odor. Coworkers had made several complaints to management about their odoriferous officemate and she had been told that she needed to take action to improve her scent. I’ve also had questions about whether an employer can ask an employee to abstain from wearing particular perfumes or colognes. The general answer is that an employer has a duty to make the workplace comfortable for their employees. So, if one employee is creating a smelly problem that adversely affects the rest of the team’s work environment, the employer is obligated to address and correct the issue. I would even go so far as to say that an employer could use progressive discipline to ultimately terminate an employee who refused to change their personal hygiene habits. Stinky is just not a protected class.

Can my employer fire me on the spot and not pay me what I am owed? It depends. Most states have a 24 hour rule for terminations, meaning that the employee must receive their final pay within 24 hours of an involuntary termination. However, some states allow for employers to make other provisions in their handbooks (such as not paying until the next payday). Check your own state’s laws regarding final pay to be sure of your rights.

WHAT QUESTIONS DO YOU HAVE ABOUT WHAT YOUR EMPLOYER CAN OR CAN’T DO?

These are only a few of the many scenarios that have been thrown my way by employees for legal analysis.  What do you want to know about what your employer can or can’t do?  Simply post your question on the forum, and I will answer in my next installment of “Can My Employer Do That?”

STEP 5 of Walking The Plank Toward Termination: Is Your Boss Hassling You About Tiny Aspects of Your Work?

If you feel like your boss has suddenly started hassling you about tiny, and seemingly irrelevant aspects of your job, then a red flag should go up in your mind.  This is another tell-tale sign that your boss is on the hunt for an employee to terminate — you.

Your boss may be trying to “build a record” of documented mistakes you have made, in order to justify terminating you. Your boss probably has not given you any negative feedback for years, if ever. And when the boss evaluates the major parts of your job — everything is fine. So, instead of noting your solid performance and moving on, your boss redoubles his or her efforts to find something, anything, that you are doing wrong.

This leads your boss into the tiny minutiae of your job — items that you can’t really say are unimportant, but are often get done not exactly “by the book.”  Your boss comes in, and makes a huge deal about something you are doing that is not EXACTLY “by the book.”

Everything works fine.  And your boss has never cared.  Until now.

But to your boss, this is an end-of-the-world problem you’ve caused.

Step back and realize, your boss’s reaction fits with how bad the boss wants to let you go; your boss’s reaction does not fit with how bad a mistake you actually made.

What Should You Do?

1. Ask your boss what is going on

Be polite about this. Don’t sneer and be sarcastic. Simply state that its obvious that something has changed, and ask what happened? Why the change?

You’re probably going to hear something like “Well I found one obvious error in your work, so I’m worried that there are other errors in your work that are not so obvious.” This is how your boss will justify tearing through your desk and computer in search of any mistake that could possibly justify terminating you. How to deal with this is the next tip…

2. Ask what your boss needs to see from you in order to win their trust back

The directness and honesty of saying this will knock your boss off-balance.  For just a moment, they will think to themselves “Maybe there is a better employee here than I realized…”  You must seize that moment.  Follow up with something like, “I want to show you that I still deserve the trust you once had in me.  What would you like to see from me in order to get that trust back?”

If your boss starts telling you what they want to see, then you’ve won.  That’s because a boss is not going to give an employee a list of goals, and then terminate the employee the next day.  So take careful note of that list that comes pouring out of your boss’s mouth — make sure they are measurable goals, and achieve them.  You will save your job.

BUT, if your boss does not respond with a list of things he or she wants to see from you, then you know your job situation is truly dire.  For example, your boss may say, “I don’t know, let me think on that one.”  Or, “I’m surprised to hear you say that… wish you had said that earlier…” (and then walks away).

So if your boss doesn’t give you a list of things to improve, and continues hassling you about the tiniest aspects of your work, then you know you are one step further down the plank toward termination.  It may be time to consider legal defenses, that do not rely on changing your boss’s mind about you.

Have you had a boss that micro manages your work, hassling you about the tinies aspects of your work?  Tell us about it in the comments section below.

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