Insider H.R. Tips From SHRM, The Biggest H.R. Conference in the Country
July 3, 2010
Inaugural Article
By Mary, the Undercover HR Director (“On Your Side” in the Forums”):
I’ll be writing articles periodically when I have news to share with you or an opinion on current events. I recently returned from The SHRM® 2010 Annual Conference and Exposition, held in beautiful San Diego, California. I thought you might like some insight into what those dastardly Human Resource folks are cooking up. I attended the Conference in my “day job” capacity as a Human Resources professional, and as your Undercover HR Director. But first – a question: What do you call one hundred HR professionals on the bottom of San Diego Bay? A good start! No, wait – that’s lawyers. Lawyers on the bottom of San Diego Bay! (Apologies to Curt)
A little background: SHRM® stands for Society for Human Resource Management,
and it’s the world’s largest association of HR professionals, with over 250,000 members
in more than 140 countries. There were over 11,000 attendees at this year’s 3-day
conference attending training sessions on everything from “Diversifying the Leadership
Bench: Maximizing the Potential of All Employees” to “Bullying and Workplace
Violence” to my personal favorite, “RETALIATION – Coming Soon to an Employer
Near You!!”.
I have to say that of the 200+ training sessions available, not one was titled “Betraying
your Employees: The Art and Science of Deception in HR” or “Effectively Padding
the Personnel File Without Getting Caught” or even “Making Employees Miserable
101”. You may not believe me, but 95% of the sessions were positive! They had titles
like “People Are Your Business!”, “Valuing Experience: Strategies for Employing the
Older Worker”, and “Creating a Culture of Engagement”.
I’ve seen it time and time again: HR pros attend training and come home with a wealth
of positive recommendations for making their organizations more “people-centered”.
Then they’re hit with the reality of their top brass pushing back, saying that – although
People Are Our Greatest Asset – we’re not really willing to invest the time and money
in ensuring that our people are protected from bullying, retaliation and other adverse
employment actions. The organization weighs the cost of defending against a lawsuit or
governmental agency investigation and decides it’s cheaper to fight than to do the right
thing in the first place.
Many times it simply begins with a poorly-trained supervisor doing the wrong thing with
a protected-class employee. Then the supervisor misrepresents the facts to HR, which
accepts the supervisor’s version without an in-depth investigation and goes along with
the supervisor’s recommendation to terminate or discipline. This is further compounded
when it’s learned that the supervisor lied or was mistaken and upper management
defends the supervisor and upholds the discipline, rather than doing the right thing and
reversing the bad discipline. And that’s how discrimination claims and lawsuits are born.
Very few cases begin with the HR professional and the supervisor deciding together to
deliberately discriminate against an employee.
Most folks go into HR with the best intentions – to help others. I didn’t speak to a single
HR pro at the conference who said his or her goal was to screw employees over – even
in jest. But they all admitted they had a difficult time balancing the pressures from their
top management with the needs and rights of employees. Trading off a larger paycheck
to move up the food chain isn’t an excuse to ignore employees’ needs and violate their
legal rights. A true HR professional is not only technically competent in the field, but
finds ways to stand up for employees’ rights. A true HR professional doesn’t sell out
his or her principles even when ordered by management to discriminate or retaliate
against an employee. I’ve been the victim of retaliation by my boss and her boss for
whistleblowing activities – and that’s why I’m your Undercover HR Director.
Stay tuned – in my next article, I’ll fill you in on the latest topics putting Human
Resources managers’ knickers in a twist. I’ll tell you what advice HR managers
have been given to investigate questionable FMLA claims – including surveillance
– and why your employer not consistently following its own policies benefits you.
mary@undercoverlawyer.com
Jury Awards $250 Million for Gender Discrimination and Hostile Work Environment
May 19, 2010
In the largest ever gender discrimination/hostile work environment verdict, a jury ordered the pharmaceutical company Novartis to pay a class of women $250 million in punitive damages, plus back pay, front pay, and attorney fees to be determined later.
“A jury that found Novartis discriminated against women by paying them less than men, promoting fewer of them and allowing a hostile workplace awarded $250 million in punitive damages on Wednesday.” (Full article HERE).
One district manager was said to have forced female employees to look at pornographic images, and even gone so far as to instruct women subordinates to sit on his lap.
With another large class action pending against Wal-Mart that makes similar allegations of unequal pay, many are wondering if this is the start of a legal trend.
Do you feel that you have not been paid fairly? If you want to learn how to frame the issue in terms of what’s legal or not legal, watch this video.
Age Discrimination Among the Unemployed, and Movement on a Workplace Harassment Bill
April 9, 2010
Good News / Bad News
The Illinois State Senate passed a version of the Namie’s anti-bullying bill. The bill was introduced by Illinois State Senator William Delgado, who said “Being in an abusive work environment is intolerable. This legislation will finally give workers some means of relief from the abuse they may be tolerating in their work environment.”
At the time the Bill was introduced, it was written to apply to public and private employees, to make harassment from bosses and from co-workers illegal, and would have made managers and co-workers individually liable for bullying. The bill even went so far as to make it a criminal act for a manager to retaliate against an employee who complained about bullying. (Read more HERE).
But you know how politics work. Business groups objected. Then there were cries that the bill “would open the floodgates” to employment lawsuits. Then false panic was spread about the bill being “the first step down a slippery slope” of litigating every kind of incivility in all aspects of life (think suing a rude customer service representative). So as of right now, the bill has not passed through the Illinois House of Representatives, and appears to be stalled.
Of the thousands of unemployed people in the U.S., nearly 25% of them have been without a job for a year or more. A year or MORE!
A summarizing article states:
“[T]his trend cuts across nearly every industry and occupation, and affects people of all ages and educational backgrounds. The existence of such a large pool of people – 3.4 million – who have been out of work for so long has had a significant impact on the federal budget.
“The number of Americans who have been out of work for a year or longer is roughly equal to the population of Connecticut,” said Ingrid Schroeder, project director of the Pew Fiscal Analysis Initiative…”
You can read the full article HERE.
Unemployed People over 50 Stay Unemployed Longer
You may have noticed before that when a research think tank like Pew issues a report, a number of journalist “write stories” that summarize different aspects of data from the report (mixed in with a quote or two). Here’s another such story based on the same Pew report, but this one focuses age discrimination.
People over 50, Pew researchers found, are less likely to be unemployed than younger workers, but people over 50 who DO lose their jobs are much less likely than younger workers to find a new job. One example is 59 year old Tom Bedar, who has not been able to find a job since February of 2008. As a former company president, he’s qualified. But that’s not what hiring managers focus on when interviewing Mr. Bedar. Instead…
…he started running into hiring managers and recruiters telling him why they wouldn’t hire him: He was overqualified; he would try to become the boss; he wouldn’t want the job for which he had applied; he would bolt at the first opportunity; the company wanted a younger person whom it could train; the hiring managers knew of unemployed people with skills in their particular industry and wanted their depth of expertise. And in one instance, he was told he would cost more in insurance expenses than a 30-year-old
The full article is HERE.
From the Horse’s Mouth
The data report from Pew underlying both of these articles — if you don’t quite trust journalists either — is HERE.
Friday Links
For everyone who lives under a rock and didn’t know that the U.S. now has another opening on the U.S. Supreme Court, you can learn about it here.
For an interesting list of employment lawsuit settlements, click HERE (Beware, this list appears to have cherry picked all the huge settlements and verdicts, leaving off small ones).
Finally if you haven’t heard about dailybunny.org, well, now you have!
Why You Should Not Give Up if the EEOC Turns Down Your Hostile Work Environment Claim
April 7, 2010
Schools Tackle Teacher-on-Teacher
Bullying In the Workplace
USA Today features an interesting article about how 41 states have anti-bullying statutes for students, but zero states have anti-bullying statutes that apply to the teachers or administrators.
That’s starting to change, however, with two school districts — one in Iowa and one in California — for the first time ever explicitly prohibiting teacher to teacher bullying. This
-
collateral bullying
is a huge topic in itself. But what’s troubling to me is that the article does NOT specifically state that the new rules prohibit school administration from bullying teachers.
It’s an otherwise interesting article, and you can read it HERE.
When an EEOC Investigator Turns You Down, You Can Still Prevail
I recently advised an Academy Member who I will call Brittney. Brittney contacted me in frustration because after filing an EEOC claim and waiting a long time, the investigator called and said the finding would probably be “insufficient evidence”.
A few other people in our forums have expressed the same frustration. It’s real, and it’s very possible, especially when the EEOC Investigators are over loaded. They feel that they can only give a brief glance to your allegations and not take the time to dig deep into your situation.
Here’s Brittney’s question and my answer, which I think could apply to a lot of people:
On Tue, Apr 6, 2010 at 8:02 AM, Brittney wrote:
Hello, I have received my allegation form from the EEOC. It seems that I don’t have enough grounds for a claim. The investigator told me that because I am from America and so is my supervisor, that he can pretty much discriminate against me and their is nothing the EEOC or I can do. What a bunch of shit. Oh well, I guess I will not be signing the allegation forms and the charges will not be filed. I would like to thank you for trying to help me. I will be returning to an even more hostile work environment this weekend. Again, thank you for your service, I have learned allot. Respectfully, Brittney.
And here is my response from that same day:
I’m sad to hear that the investigator does not see the merit in your claim. But, I’d still like to take a minute to give you a couple of tips.
You said that you were going to “be returning to an even more hostile work environment this weekend.” Is that because your supervisor will gloat about “winning” with the EEOC and feel more free to treat you worse? If that happens, he is illegally retaliating against you. TAKE NOTES ABOUT ANYTHING HE DOES THAT IS WORSE THAN BEFORE.
Attorney’s love to take retaliation cases, much more so than discrimination. Retaliation is much easier to prove. It’s just “Was the employee treated worse after filing with the EEOC as compared to before he filed with the EEOC?”
And what do supervisors do when the EEOC investigator says “unsubstantiated”? The supervisor acts like a classroom bully when the teacher leaves the room; he feels free to rip into you without fear of getting caught. BUT, that’s not true.
If you are treated worse this weekend, take careful notes about what your bully supervisor did. Then go see a local lawyer, or even re-file with the EEOC. Either way, you let the bully know that they have not “won”, and you will not roll over and take his abuse.
I hope this helps, and I hope to see you again in the Academy. -Curt
Quote of the Day
In the long run the pessimist may be proved right, but the optimist has a better time on the trip.
─Daniel L. Reardon
Desperate Housewife Sues Abusive Boss For Hostile Work Environment
April 6, 2010
She's Suing Her Boss
- “creating a hostile work environment on the set and behaving aggressively and abusively toward the cast and the writers.”
She claims that her character was killed off in retaliation for resisting his abuse, and she seeks $20 million in compensation.
Three Hostile Bosses Ordered to Pay $185,000 to Two Employees Who Fought Back
In Georgia, the former DeKalb County CEO Vernon Jones and three other people were ordered to pay two former employees $185,000. The former employees alleges that Jones created a hostile work environment based on race within the County’s Parks and Recreation Department.
The trial was closely watched because Jones is currently running for Congress, and was the first African American CEO of the County. In one deposition excerpt, a co-defendant (County Parks Director Marilyn Drew) was asked the following questions about Jones:
Q – Have you ever had any conversations with him in the office?
Drew – Yes.
Q – And were they of a threatening nature?
Drew – Yes.
Q – Okay. And on how many occasions?
Drew – I don’t know; a lot.
Not only did this bullying boss lose in court, but the managers were individually ordered to pay money to the two prevailing ex-employees. Jones was ordered to pay $27,750. Marilyn Drew, former parks director, was ordered to pay $55,500. Richard Stogner, top aide to Vernon Jones, was ordered to pay $27,750. You can read the full story HERE.
We Are All Disabled Now
Thinking is a major life activity under the ADA. Head v. Glacier Nw. Inc., 413 F.3d 1053 (9th Cir. 2005)
Supervisor to Employee: “Report Me and I’ll #$&*@! You”
This is a
- brand hostile work environment lawsuit
was just filed on Friday, regrettably here in my home state of Oregon. Many law firms subscribe to a service that summarizes the newly filed cases. You’ll see why this one, Holmgren v. Oregon City, caught my attention:
Employment discrimination action. The plaintiff’s supervisor threatened to discipline her for reporting male coworkers’ harassing comments, including a discussion about a coworker not having a girlfriend because he couldn’t “hit the crack,” talking about women not liking to get “fucked in the ass,” and discussing “boners” and a “two inch dick.” When the plaintiff told her supervisors that her daughter needed surgery, one asked, “what did she do, get knocked up?” $600,000.
Pregnancy Discrimination and Retaliation Trial
I want people to see how trials actually end, when employees do sue their bosses and get all the way to trial. Note, these are rare since 95+% of cases settle or are dismissed prior to trial.
But here is the second trial result in today’s post. This was a six day trial filed by a woman who worked for a cabinet company who received positive reviews from her boss until she became pregnant; then her workplace turned hostile and her boss made up a reason to fire her.
Kemp v. Masterbrand Cabinets:Employee worked for Masterbrand as a temp from October 2003 until May of 2004. Employee then became employed by Masterbrand in May, 2004, as a material specialist, and worked the second shift from 3:15 p.m. until 11:45 p.m., Monday through Friday. Employee had performance reviews at thirty (30) and ninety (90) days, in which her supervisor, Linda Durrett, rated Employee strong or good in every category of her evaluation. On or about November 2004, Employee became pregnant. Around January 6, 2005, Employee’s doctor put Employee under lifting restrictions of less than 30lbs. The Employee gave her boss a copy of the doctor’s note. Between the time that the company became aware of Employee’s pregnancy, on or about January 6, 2005, and March 18, 2005, Employee claimed she was subjected to discrimination by her supervisor, Ms. Durrett. Ms. Durrett tried to get Employee to leave early on March 12, 2005, so that the company would have “grounds” to terminate Employee. After this scheme failed, Durrett terminated Employee on March 22, 2005 when Employee left on time. The company’s reason for Employee’s termination was Employee had not checked out with her supervisor prior to leaving at the end of her shift. Employee contended that the company conspired to terminate her because she had opposed the pregnancy discrimination in the workplace. Employee brought this action for pregnancy discrimination, retaliation for opposing pregnancy discrimination and wrongful discharge. Injuries: Economic damages only. Specials: Lost Wages $24,200; General Damages $18,000.
Harvard Says Bullying Bosses Are Insecure People
Visitors to this website may want to file this one under “tell us stuff we didn’t already know.” But you’ve got to admit, it never hurts to have the Harvard Business Journal weighing in on our side!
A recent article there states that research shows that bully bosses don’t harass employees just because of the bosses personality and their power. The Review observes that it takes one more ingredient to create an explosive supervisor:
…it was the simultaneous pairing of power with feelings of inadequacy that led people to lash out. In our studies, the power holders who felt personally incompetent became aggressive, not because they were power hungry or had domineering personalities but because they were trying to overcome ego threat. Put simply, bullying is a cheap way to nurse a wounded ego.
The article ends with some advice to hiring managers, which boils down to “hire secure people”. Here’s a snippet of my reply comment at the Harvard website:
Mr. Fast, I applaud you for pointing out that bullying takes money off an organization’s bottom line. I hope that your message takes root, and that management applicants will be screened for the traits you identify.
Until that day, thousands upon thousands of people lay awake at night, feeling sick and nauseous with dread about what form of humiliation they will have to endure the next day — and whether they will be able to endure it. These people can’t wait for new laws and new hiring practices — they need help now.
You can see the full article and all the replies for yourself, HERE
Of course, many people come to this website because their company DID hire insecure people into positions of authority. If you are suffering through such a situation, you may want to consider getting my e-book, Work Laws Exposed, which you can purchase on the Store Page.
New Legal Rights For Employees of Nursing Homes
April 5, 2010
New Employee Rights for Nursing Home Employees
If you or any other employee reasonably suspects that a crime (like billing fraud) has taken place at your workplace, then you must report it to at least one law enforcement agency. What happens if you don’t? Up to $200,000 in fines.
Evidently nursing home managers have been leery of reporting a resident who has abused or beaten another resident. Mangers don’t want the negative publicity, and don’t want law enforcement getting involved in what he nursing home views as “a medical issue”. So, if you are employed at nursing home you must report any action by a manager or resident that you believe is a crime.
But what if you or a co-worker DO report something that you reasonably believed was a crime – but it turns out it wasn’t. Your boss gets mad and starts harassing you, and threatens to write you up for doing your job the way you have always done it. This is retaliation, and your boss at the long term care facility cannot legally retaliate against you for reporting the suspected crime, even if you were wrong.
The new anti-retaliation provision in the Health Care Reform Bill calls for fining bosses who retaliation up to $200,000 and/or suspending the facilities federal funding for up to two years (which would probably put a lot of facilities out of business).
Finally, all nursing homes must now have a standardized complaint form with a formal procedure in place to resolve complaints. Again, retaliation against anyone who fills out a complaint form is prohibited by law.
Whistleblower Protection for Nurses in Health Care Reform Bill
March 29, 2010
Protected from Whistle Blowing by New Health Care Reform Bill
Now this reform bill, which is actually named “The Patient Protection and Affordable Care Act of 2009,” does not outright prohibit bullies in the healthcare workplace. Although it would be a good idea to catch the U.S. up with the rest of the civilized world, we’re still a ways off from making it illegal to purposefully ruin another person’s career.
But, this law can be a another tool that you can learn to use in your fight against an unfair supervisor.
Specifically, the Bill gives whistleblower AND retaliation protection to health care workers! The “PPACA” also puts some muscle on the False Claims Act. If an employee reports anything, even to his or her own employer, that the employee “reasonably believes” is a violation of the Title I section of the Bill, then that employee is a whistleblower — and thus part of a protected class.
So you are probably wondering what “Title I” prohibits… and what things you must report to be protected by this new law. Title I prohibits denying coverage based upon preexisting conditions, it includes policy and financial reporting requirements; and it prohibits treating patients differently based on whether they received health insurance subsidies. Put another way, the bill will protect employees who point out a broad range of infractions their employer is engaging in.
Similar to Title VII, this new bill’s whistleblower rules include a 180 day deadline, and a requirement to file first with an administrative agency (in this case OSHA). And also like Title VII claims there is an option to litigate against your employer before an administrative law judge, or, you can choose to remove the claim to federal court (like getting a “right to sue letter” from the EEOC) and litigate there in front of a jury. This new whistle blower protection allows for reinstatement to your job if you’ve been fired, the back pay you should have received, and attorney’s fees.
What you have to prove is that your whistleblowing was merely “a contributing factor” in your employer’s decision to fire you, demote you, transfer you, give you a bad appraisal or review, deny you a raise, etc.
So what is “a contributing factor,” you ask? It is “any factor which in any way affects the outcome of the decision” to deprive you of your job, a good appraisal , a raise, etc. So all you have to show is that your whistleblowing affected a bosses decision to give you a bad review, for instance — your whistle blowing does NOT have to be the only reason, or even the main reason, that your boss gave you a bad review.
After you prove that, then your employer has a chance to get off by proving “by clear and convincing evidence” that it would have done the exact same thing to you even if you had not blown the whistle. Unless you got caught stealing, this is pretty hard for an employer to prove.
Our next post, later this week, will further explain the new bill’s protections for employees at nursing homes, so be sure to check back.
And what do you think of this aspect of the new bill? If you are a nurse or in health care, have you ever seen patients treated differently because of what insurance they have or don’t have? Have you nurses out there been retaliated against in the past for pointing out policy violations where you work?
Healt Care Reform Bill Sections Protecting Whistleblowers
Steps Toward Workplace Civility Law & Could You Qualify for Disability Benefits?
January 25, 2010
In Episode #14 of the Hostile Workplace Podcast we review two recent cases, both of which point toward the federal courts gradual expansion of discrimination law, inching closer to requiring civility in the workplace.
Ingrid Reeves v. C.H. Robinson Worldwide (11th Cir., January 20, 2010)
Indergard v. Georgia-Pacific Corp., (9th Cir., September 28, 2009)
We also have a highly informative interview with Brian Therrien of Disability Digest. We’ve featured [Read more]
Is This Retaliation or Discrimination? Q & A with Derek D.
January 18, 2010
Academy Member and book buyer Derek D. and I have been talking about how his bullying boss has gone over the line and started to infringe on Derek’s employee rights. Of course there is a long history, with the supervisor Trent taking a dislike to Derek back when Trent was himself a machine operator.
After his promotion, Trent made comments that [Read more]
To Your Resounding Success in 2010
January 8, 2010
After receiving a huge response to the following email, I decided to share it with everyone here on the site as well.Yes, I know about the “bigger problems” these people are referring to. I know about the global warming and the slave trade and the earthquakes and tsunamis and Osama Bin Laden. I know about cancer and birth defects and the bloody 20th century and the pollution in China and the prostitution rings in Bangkok. [Read more]
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