Do You Know the 4 Key Steps to Taking Back Your Life from a Bully?

Question: What are the four key steps to taking back your life from a bully?

Answer: Listen to our interview with psychotherapist Dr. Ben Leichtling (pronounced Like-Ling).  Dr. Leichtling wrote a book about how to take back your life from a bully, and consults with companies on how to eliminate bullying from the workplace.

Dr. Leichtling reveals in this interview his four key steps to breaking free of a bully.  He also give invaluable advice on how to deal with the mental and physical trauma that bullies inflict.  This is one episode no one should miss.

Podcast #11: Interview With Dr. Leichtling

Dr. Leichtling was so generous with his time that we couldn’t fit all of his helpful insights and ideas into the podcast, but it was simply too good “to leave on the cutting room floor”.

So even more of this interview is available on the Members-Only Forum, which is just $1 for the first month (and no further obligation).  You can join the Member Forum here: http://undercoverlawyer.com/amember/signup.php

The Quick Tip a site where you can rate your boss, and check to see if you potential new boss has been rated by his or her employees.  The site is: http://www.ebosswatch.com/

Find even more helpful info from Dr. Leichtling at his site: http://www.bulliesbegone.com/

Let us know your thoughts on the interview, and what physical and mental effects, if any, you have felt as a result of a bully in your workplace.

-Curt

P.S.  The link for getting access to the full interview with Dr. Leichtling (for just $1) is here: http://undercoverlawyer.com/amember/signup.php

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Podcast #10: Bully Boss Creates Hostile Work Environment by Forbidding Bathroom Breaks!

Don’t Have iTunes on Your Computer? Free Download from Apple w/ easy install instructions.

Main Segment
In the Main Segment of Episode #10 we tackle the issue of “Bully Bosses Who Forbid Bathroom Breaks.”  This craziness happens much more frequently than you may think.  Can you guess who the primary victims are?

#1 Spanish radio station in Miami

The radio show I mention during the show is 98.3.  My thanks to Frank, the Undercover Lawyer community member from Miami who got the book and called in to 98.3 to talk about it.  Thanks Frank!

When Your Bully Boss is Behind Closed Doors, Do You Want to Know What the Lawyers Are Telling Him?

In Episode #9 the Undercover Lawyer (Curt K.) reveals 10 things that bosses do to their employees that cause hostile work environment lawsuits. (Podcast Player below). Even defense lawyers get mad at bad bosses, because bad bosses cause lawsuits.  This is explosive information that big business pays top dollar for; Curt himself regularly charges companies $1,000+ for “How Not to Get Sued” seminars that cover this same material!  But now you get it for free, plus Curt’s explanation of how employees can use this information for their advantage.

In the Quick Tip Curt covers how the new Federal Bailout Program includes money that you get right now if you’ve lost your job.  It’s the COBRA subsidy, which requires your employer to pay 65% of COBRA premiums, so that you pay only 35% of the premium to maintain health benefits after leaving a job.  Before this you would had to have paid 100%.  You can get more info here: http://www.dol.gov/ebsa/faqs/faq_consumer_cobra.HTML

JOIN THE RESISTANCE!

And the most exciting news, the Members Only Private Forum of the Undercover Lawyer Academy is now available for only $1 for the first month (and $14.97 per month thereafter).� This is a giant discount from the usual $47 per month that will go into effect in about 30 days.� But if you sign up now, you lock in the $14.97 price for life (even after the full Employment Law Academy opens with tons of powerful new content).

You can take advantage of limited time $1 offer by clicking here: http://undercoverlawyer.com/amember/signup.php

Gradual Workplace Harassment Is Not Legal Harassment

You complain to your manager or to H.R., and what do they tell you?  There’s no evidence that you are putting up with an illegal hostile work environment.  But you are having trouble sleeping, you feel sick when you think about work, and even though you try not to you spend most of your time worrying about work, you think about little else.

How can your boss or H.R. excuse this?  How can they possibly claim that nothing is going on?

Acme Markets said that Gloria Nieves was just complaining about good old fashioned teasing among co-workers.  Some of it may have been insensitive, but Acme claimed that no one thing that happened to Gloria at the deli where she worked amounted to illegal harassment.  But Gloria knew differently.  She took Acme to court, where the court said even when single incidents don’t amount to illegal harassment, courts consider everything that happened to Gloria “as a whole” before deciding whether or not the company’s treatment of her added up to illegal harassment.

Find out whether Gloria won or lost after the court ruled that Acme should have “viewed as a whole” all the harassment that Gloria was putting up with.

The Gradual Harassment of Gloria Nieves

Gloria is Hispanic and born in Colombia.  She began working part-time at Acme Deli in Middleton, Delaware in November of 2001.  When Acme opened a larger store in Middleton two years later Gloria applied for a full time “senior night associate” position in the new store.  Based on her seniority Gloria got the full time job working nights at the new location.

The hostility toward Gloria began as soon as she began working full time at the new store.  She was told that she wasn’t allowed to speak Spanish to Spanish speaking customers.  Her manager wondered out loud how Gloria could have possibly won the full time position because her “English isn’t good.”  Another time a co-worker questioned whether Gloria had a “green card”.  Gloria was called “stupid” when she asked questions and was treated like she had never been educated.  When the topic of drugs came up, a co-worker would say “ask Gloria because she’s from Columbia.”  When Gloria’s husband Emilio came to the store she had to listen to them say “de plane, de plane,” referencing a Hispanic character from the show television show “Fantasy Island.”

Gloria complained to management and to H.R. about all of this, of course.  Management’s response was to simply tell Gloria “Don’t worry.”  In the eyes of management none of this harassing conduct amounted to an illegal hostile work environment.  It was all just good fun and joking around.  Her complaints were not taken seriously at all.  For instance, once when Gloria made a complaint to a supervisor, the supervisor simply waited until Gloria turned her back to walk away, and then he started laughing at her — and encouraged Gloria’s co-workers to do the same.  Gloria was even called “Chihuahua” from the Taco Bell commercials.

Gloria began to cry frequently because of the workplace harassment.  The Acme Deli, however, blamed her crying on “marital problems.”  Gloria finally went from work to the emergency room due to chest pain, caused by the hostile workplace she had endured for so long.

Instead of taking responsibility for Gloria’s deteriorated physical condition, Acme Deli accused her faking her illness.  The next week the Deli Manager suspended Gloria.  Gloria filed harassment claims with the EEOC based on her national origin.

Acme Deli responded to Gloria’s EEOC complaint by arguing that none of the conduct Gloria complained of was “severe enough” to be considered unlawful.

The EEOC sent a letter to Acme stating that it’s investigation indicated that Acme had engaged in discriminatory practices and violated employment laws.  After the EEOC scheduled a conciliation (settlement) meeting, Gloria filed suit in court.

How Did Gloria’s Harassment Case Against Her Employer End?

In court Acme against argued that Gloria’s suit should be dismissed because the harassment Gloria suffered was not “severe or persuasive”.  But the court applied a test used by the Supreme Court, call the “totality of thecircumstances test”.  Under this test:

“workplace conduct is not measured in isolation; instead, whether an environment is sufficiently hostile or abusive must be judged by looking at all the circumstances, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, …a mere offensive utterance [or] whether it unreasonably interferes with an employee’s work performance.” Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 270-71 (2001).

Acme claimed that Gloria had only identified isolated incidents, while Gloria argued that a set of multiple incidents makes a pattern, and an illegal pattern at that.  The court reviewed all the incidents, and found that “while each act/comment, in isolation, might be perceived as insensitive, taken as a whole, a reasonable jury might conclude that the acts/comments were motivated by adiscriminatory purpose.” ( Nieves v. Acme Markets Inc., D. Del., March 7, 2008)

The Undercover Lawyer’s Take-Away Tips for Fighting Workplace Harassment:

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.

Is Your Former Abusive Boss Going to Give You a Bad Reference? Here’s How to Fix It

If you’ve escaped working for a bully boss, but are afraid of what the bully will say to your prospective employers during reference checks, then this article is for you. I’ve been getting this question a lot lately, most recently from reader named Allen, whose email to me is posted below with my response following:

Hi there, I was searching through some law websites when all of a sudden I came across your website. I had a question about job applications: is it unlawful to ask why you left your last job? The reason I asked is because I was fired from my last job for some flim flam reason, and it would be a shame if I didn’t get the job that I’m applying for due to telling the truth, and then the truth turns right around and kicks me in the butt.

Also, is it illegal for a former employer to tell anyone that they fired you?

Thank you,

Allen

Here’s My Response To Allen’s Job Reference Question

Hey Allen,

Thanks for writing.  The answers to your questions about reference checking are “No” and “It can be”.  Let me explain one at a time.

2. It can be illegal for your former employer to give a bad reference about you if he or she knows the negative reference is not true.  So, when ever giving a bad reference, the company giving it must be truthful and completely accurate.  If the the reference is not truthful and accurate, and it causes you to not get a job, then you can sue your former employer for defamation.  Here are the elements of defamation:

1. Publication to a third party (the prospective employer);
2. Of a false statement (the description of you as anything other than a conscientious, hardworking employee)
3. That harms your reputation (you didn’t get the job)
4. Damages (the money you are not making because you didn’t get the job).

See how cleanly the elements of defamation match up with the act of giving a former employee a bad reference?  The your ex-employer could only argue over the second element of defamation.  Elements 1, 3, and 4 are all indisputably present.

This is why so many companies only release ex-employees’ dates of hire, dates of separation, beginning wages, ending wages, and job titles.  Those things are objective. The company can prove each one was accurate.  But if the ex-employer starts to talking to a prospective employer about your “attitude,” or if you were “a team player” or other vague statements, then your former bosses are getting into highly subjective territory that you can dispute.

What I suggest is that you call the old company and ask what information they give out when someone calls to check a reference. If they give out more than just your dates, position and wage, then tell them you object to releasing any more than those few objective facts.  Be sure to follow up in writing with your ex-employer by sending the company an email or letter (to your immediate boss and to whomever is responsible for HR). Here’s another of my famous letter templates for you to use:

“To confirm our phone conversation of earlier today, you stated that Company does release subjective information to potential employers who call to check the references of Company’s former employees.

“I continue to object to Company releasing ANY information about my tenure with Company other than my date of hire, date of separation, beginning wage, ending wage, and job title.  If Company does not limit itself to these objective pieces of information, but knowingly gives out false information about my employment which causes me to not be hired, be assured that I will take legal action.

“You know that I dispute the reason given for my termination.  Although I still believe that Company knows this reason was not true, I have tried to move on with life and make a clean break.   If Company decides that it must spread untrue information about me to my potential employers, I will have no choice but to reverse my decision to make a clean break and file suit against Company in court for defamation.

“I sincerely hope that Company will agree to make a clean break of our relationship and that further communication between our attorneys will not be necessary.

Sincerely,  Allen”

If your former employer has any sense at all, it will realize that it is much, much cheaper for it to only release your dates, wages and title; in fact, your former employer gains nothing by stabbing you in the back with a bad reference.  Most see that giving out references offer nothing to gain and plenty to lose.  With a letter like the one above, you can demonstrate to your former employer that refraining from saying anything negative about you is “a no-brainer.”

Have you ever faced the prospect of a former employer giving you a bad reference you didn’t deserve?

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 supervising law enforcement officer in administrative position within police department, and videotape of former chief performing as rodeo clown showed him running, jumping, climbing fences, dancing, running from bulls, leaping on top of and off barrel, climbing into barrel, carrying barrel, and being rammed by bull while crouched inside 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 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.”  Then 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 are 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.

Employees File Complaints, Employers Pay

Janitor’s EEOC Complaint Ends With Order to Pay $350,000
A nursing home company, Skilled Healthcare Group, must pay a class of Hispanic employees it discriminated against $450,000 “and provide significant remedial relief [because they] were subject to harassment, different terms and conditions of employment, promotion, compensation, and treatment.”  The EEOC ordered the company to pay Hispanic employees because the employees had been forbidden from speaking Spanish at work, BUT, other ethnic groups were allowed to speak their own native (non-English) language while working for Silled Healthcare.  Because the compnay treated employees differently with respect to their national origin, the EEOC had filed suit against the company in Federal Court in California, alleging discrimination in violation of Title VII of the Civil Rights Act.

The suit stemmed from a complaint filed by a single employee, a janitor named Jose Zazueta.  Skilled Healthcare fired Mr. Zazueta for violating the company’s English-only policy.  At the same time, however, the company did not terminate or discipline other employees who spoke Tagalog at work.  Here’s a quote from the EEOC’s own press release about the details:

The EEOC identified a total of 53 current and former Hispanic employees at facilities in California and Texas who were subjected to disparate treatment and harassment based on their national origin and shared Spanish language. The EEOC alleged that some workers were prohibited from speaking Spanish to Spanish-speaking residents of the facility, or disciplined for speaking Spanish in the parking lot while on breaks. Additionally, the EEOC alleged that defendants gave Hispanic employees less desirable work than non-Hispanic counterparts, paid them less, and promoted them less often.  http://www.eeoc.gov/press/4-14-09.html

English-Only rules can be legal IF the employer demonstrates that the rule is necessary, and the employer also enforces the rule the same way with all employees.  Employers who fail to evenly enforce English-Only rules commit discrimination, whether the employer intends to discriminate or not.

Two Women Complain To EEOC and Employer is Ordered to Pay $267,000

Tineke Meyer and Karina Mercado worked for Sunfire Glass in Arizona.  The company’s owner, Paul McBride, touched them inappropriately, talked to the women about their bodies, used vulgar language with them, and made obscene gestures toward them.  Both women complained repeatedly, but nothing changed.  Eventually both Meyer and Mercado quit their jobs and Sunfire Glass, feeling that they were forced out by the hostile work envioronment.

The U.S. Equal Employment Opportunity Commission filed a lawsuit in September on behalf of employees (EEOC v. Sunfire Glass, Inc., Civ. 08-1784 PHX-LOA).  It alleged that Sunfire owner Paul McBride touched them inappropriately, made obscene gestures, talked about their bodies and used vulgar language.  The women repeatedly complained, but no action was taken, the EEOC said. Both resigned and filed complaints with the EEOC.

The EEOC filed charges against Sunfire and it’s owner Paul McBride in September of 2008.  On April 13, 2009, the court awarded Meyer $160,278, and awarded Mercado $106,781.  The amounts awarded to each woman included back pay, interest, and compensatory and punitive damages, plus interest until the amounts are paid.  The punitive damage amount awarded to each plaintiff was $50,000.

Sonic Drive-In Franchise Sued For Disability Discrimination

On April 13, 2009 the EEOC filed discrimination charges against a Louisiana based Sonic Drive-In franchise because the restaurant refused to hire a qualified applicant due to the applicant’s disability.  Sonic discriminated against the applicant when it refused to hire her as a car hop or cook because of her speech impediment.  The suit seeks to force Sonic to pay the applicant back pay, compensatory damages, punitive damages, and interest.  The EEOC also stated that “ADA charge filings with the EEOC nationwide increased 10% in Fiscal Year 2008 to 19,543, the highest level of disability discrimination charges since FY 1995.”  For the full story click here: http://www.eeoc.gov/press/4-13-09.html

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 employee/s 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 an employee or employees 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 ball 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 too 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.

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