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

The Abusive Boss Who Lost in Court

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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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Podcast Episode #7: Your Boss Can Be Liable to You For Creating A Hostile Work Environment Based on Age

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In Episode #7, we discuss how your boss can be liable to you for creating a hostile work environment based on age.  The main example we cover is Elizabeth Parks v. Lebhar-Friedman, Inc., 2008 WL 4449345 (SDNY) (Oct. 2, 2008). Parks’ worked for her employer, Drug Store News, for 26 years.  Even after that much time with nothing but good reviews, Parks felt like her boss was trying to make life miserable for her and push her out.  Her boss concocted excuses to “write her up” and criticize her work for vague reasons that no one could understand, much less act upon. Parks’ boss, however, wasn’t planning on Parks pushing back.  To learn how she did it, and how she got some smoking gun evidence against her boss and other executives at her company, just listen to the show.

You can listen on iTunes by clicking HERE.

If you don’t use iTunes, you can listen by using the podcast player:

Also, the resource discussed in the quick tip is at:  http://creditcard.westlaw.com/.

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?”

Podcast #6: 10 Tips for Anyone Facing Termination, Including Negotiating a Severance Package

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If you want to listen on your iPod via iTunes, you can use this link (will open iTunes and take you to the podcast): http://phobos.apple.com/WebObjects/MZStore.woa/wa/viewPodcast?id=284065741 You can also listen through this website using the player below.

The primary message of Episode #6 of the Hostile Workplace Podcast is “You Are Not Powerless When Facing Termination!”  This episode shows you how to fight back and try to keep your job, PLUS, we cover how to negotiate a severance if you decide to leave.  Negotiating a severance would also apply to anyone who is facing layoffs at their company.

Tips 1-3:
Fight Back by utilizing protected classes and turning the tables on your supervisor.

Tips 4-7:
Slow the Process Down by knowing all your due process rights and using all of them.

Tips 8-10:
Even if You Decide to Leave, don’t just walk away; you have the power to get something out of the company, and ease your transition to your next (better) job.

The ever-popular “Quick-Tip” feature comes straight from our forums.  A community member who is facing termination at his own job has a great tip for anyone dealing with an abusive boss.

Hostile Workplace Podcast #3: Straight-Male to Straight Male Sex Harassment

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Episode #3 of the Hostile Workplace Podcast, by the Undercover Lawyer

To access this podcast through the iTunes music store (for free) click HERE.

Announcements

In Epsisode #3 I mentioned that you can follow me on Twitter. In you are not familiar with it, Twitter is a “micro-blogging” site, where people can post short, text message length updates about what they are doing each day. You can see it for yourself at www.Twitter.com .  My username on Twitter, if you would like to follow me, is “Undercover_Lawr”.

Quick Tip

For the Quick Tip, we talked about how employees have zero expectation of privacy for anything done with their work computer, or their work network (like signing in from home – still utilizes work network).

Feature Segment – Straight Male to Straight Male Sex Harassment

Oncale v. Sundowner Offshore Services, Inc. 523 U.S. 75 (1998)

Facts of the Case

Joseph Oncale, a male, filed a complaint against his employer, Sundowner Offshore Services, Inc., alleging that he was sexually harassed by co-workers, in their workplace, in violation of Title VII of the Civil Rights Act of 1964 (”Title VII”). On appeal from a decision supporting a district court’s ruling against Oncale, the Supreme Court granted certiorari.

Question

Does the prohibition against sex discrimination, set out in Title VII of the Civil Rights Act of 1964, apply to same-sex sexual harassment?

Conclusion

Yes. In a unanimous opinion, the Court held that while Title VII does not prohibit all verbal or physical harassment in the workplace, it does bar all forms of discrimination “because of” sex. Such discrimination, whether motivated by sexual desire or not, is actionable so long at it places its victim in an objectively disadvantageous working condition, regardless of the victim’s gender.

Written Option: http://supreme.justia.com/us/523/75/index.html

Davis v Coastal Intern. Sec., Inc, 275 F3d 1119 (2002)

Facts: The extended and rancorous workplace dispute giving rise to this action began in 1996 after Coastal International Security hired Wallace Davis to work as a security guard at the Environmental Protection Agency. While serving as a supervisor early in his tenure, Davis disciplined two other Coastal security guards, Aaron Smith and Everett Allen, for various on-the-job infractions. Smith and Allen, apparently infuriated by their discipline, launched a retaliatory campaign against Davis, which they began by repeatedly slashing his tires.

After Davis complained to his supervisor, Coastal required the three men to sign a memorandum of understanding in which they agreed to set aside their differences. This agreement accomplished nothing. When Davis was demoted Smith and Allen visited his work station and taunted him about the demotion. Approximately six months into their campaign against Davis, Smith and Allen expanded their repertoire. Smith approached Davis at his work station and grabbed his (Smith’s) crotch, made kissing gestures, and used a phrase describing oral sex. After Smith twice repeated this performance, Davis complained to his supervisor, who convened a meeting with Davis, Smith, and Coastal’s project manager for the EPA facility. Because Smith denied Davis’s accusations, and because Davis failed to provide corroborating evidence, the project manager took no formal action, but admonished both Davis and Smith to “ act like grown men.”

Undeterred, Smith continued his vulgar comments and gestures, and Davis again complained to his supervisor. This time the supervisor warned Smith that he would be fired if his behavior continued. This seems to have gotten Smith’s attention, for his lewd conduct ceased (although Davis alleges that Smith threatened his life on several subsequent occasions). Allen, however, twice approaching Davis and made precisely the same lewd gestures and comments that Smith had.

When Davis complained for a third time, Coastal conducted a full-scale investigation. Although the investigator interviewed ten employees, he concluded that the inquiry had been “hampered by the lack of a reliable witness to substantiate even one allegation of sexual harassment by … Davis.” Notwithstanding this lack of corroborating evidence, the investigator recommended that Davis and Allen be reassigned (Coastal had terminated Smith for unrelated reasons). Shortly thereafter, Davis filed one final complaint, claiming again that Allen, despite his reassignment, had repeated the by-now-familiar lewd gestures and comments.

In January 2000, over three years after these events began, Davis filed suit in the United States District Court for the District of Columbia, alleging that Smith’s and Allen’s behavior amounted to sexual harassment and that Coastal and Securiguard “permitted … Allen … and … Smith to make sexually vulgar gestures and statements.”

Legal Standard for Male to Male Sex Harassment:

The Court suggested three ways to prove that same-sex sexual behavior rises to the level of illegal sexual harassment: The plaintiff may show that the sexual behavior is motivated by actual homosexual desire; that the harassment is framed in “such sex-specific and derogatory terms … as to make it clear that the harasser is motivated by general hostility” toward members of the same gender in the workplace; or that there is “direct comparative evidence about how the alleged harasser treated members of both sexes in a mixed-sex workplace.” Oncale, at 80-81, 118 S.Ct at 1002.

ROBINSON v FORD MOTOR Co 277 Mich App 146 (2007)

This case was brought under STATE LAW, Michigan Civil Rights Act (MCA). “Plaintiff alleging a sexually hostile work environment on the basis of sexual advances or solicitations under Civil Rights Act (CRA) must present some credible evidence that the harasser is motivated by sexual desire; however, the same cannot be said about the third type of action barred under the CRA, namely verbal or physical conduct “of a sexual nature.” M.C.L.A. § 37.2103(i).”

Robinson presented enough evidence to allow the case to go to a jury that his co-worker’s conduct and communication inherently pertained to sex for purposes of employee’s same-gender sexual harassment claim under Michigan’s Civil Rights Act (CRA); Robinson’s co-worker allegedly exposed his testicles and forced Robinson to touch them, hit Robinson’s buttocks, exposed Robinson’s underwear, and it just gets worse from there…

FEMALE HARASSING MALE

Jones v U.S. Gypsum, 126 F Supp 2d 1172 (2000)

Legal Standard that Accuser Must Satisfy:

(a) she is a member in a protected group; (b) she was subject to unwelcome sexual harassment; (c) the harassment was based on sex; (d) the harassment affected a term, condition, or privilege of employment; and (e) the employer knew or should have known of the harassment and failed to take proper remedial action.

This case is a fun one in part because of the gender flip, the woman is harassing the man, and in part because the things the woman did would be outrageous no matter who did them.  The clear legal standard spelled out by the court, points (a) to (e) above, make the case worth noting apart from the outrageous facts.

iTunes Selects The Hostile Workplace Podcast for “New & Notable” Recognition

“The Hostile Workplace Podcast” is currently a “New & Notable” selection in iTunes.  Thanks so much to everyone who has visited iTunes and subscribed to the podcast and left a postive comment in iTunes.  Each of those things is like a vote that the Hostile Workplace Podcast should be featured more prominently.  And it’s working.  This is just one small way that we can bring more awareness to the issue of bullying bosses that turn good jobs in hostile nighmares that no one deserves.

If you would like to see for youself where the Hostile Workplace Podcast is featured in iTunes just follow these steps: 1) Open the iTunes software; 2) Click on iTunes Store; 3) Click on “Podcasts”, then “Business”, then “Careers”.  The “New & Notable” box is the top center feature.  You may have to click to the rigth one time inside the “New & Notable” box.

If you would like to go directly to the Hostile Workplace Podcast in iTunes you can use this link to go straight there: http://phobos.apple.com/WebObjects/MZStore.woa/wa/viewPodcast?id=284065741

Hostile Work Place Podcast #2: Sex Harassment

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In The Hostile Work Place Podcast, Episode #2, we discuss the most explosive of work subjects, sexual harassment.  During the show we explain how the U.S. Supreme Court recognizes two types of sexual harassment:

1. Quid Pro Quo (latin for “something traded for something”)
2. Hostile Work Environment based on sex

We also explain how you can evaluate whether or not an action can be considered sexual harassment by using the idea of “unwelcomeness”.

If unwelcomness is established, a court will look to four factors to evaluate whether a hostile work environment based on sex exists.  Those four factors are:

1. Frequency of the offensive conduct
2. Severity of the offensive conduct
3. Whether the offensive conduct was physically threatening or intimidating
4. Whether the offensive conduct interfered with the performance of your job duties

The case where these four factors were discussed most recently is Reeves v. C.H. Robinson Worldwide Inc. (April 28, 2008).

The two U.S. Supreme Court cases mentioned in the show are Burlington v. Ellerth and Faragher v. Boca Rotan.  Summaries of each and links to downloadable versions of the full case are immediately below.  However, if you would like to go straight to the forum where we are discussing this episode of the podcast just click HERE.

Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998)

Facts of the Case

After working for Burlington Industries for 15 months, Kimberly B. Ellerth quit because she allegedly suffered sexual harassment by her supervisor - Ted Slowik. Despite her refusals of Slowik’s advances Ellerth did not suffer any tangible retaliation and was, in fact, promoted once. Moreover, while she remained silent about Slowik’s conduct despite her knowledge of Burlington’s policy against sexual harassment, Ellerth challenged Burlington claiming that the company forced her constructive discharge.

Question

Can an employee, who despite refusing sexually harassing advances by a supervisor suffers no adverse job-related consequences, recover against an employer under Title VII of the Civil Rights Acts of 1964, without showing that the employer was responsible for the supervisor’s harassing conduct?

Conclusion

Yes. In a 7-to-2 opinion, the Court held that employers are vicariously liable for supervisors who create hostile working conditions for those over whom they have authority. In cases where harassed employee’s suffer no job-related consequences, employers may defend themselves against liability by showing that they quickly acted to prevent and correct any harassing behavior and that the harassed employee failed to utilize their employer’s protection. Such a defense, however, in not available when the alleged harassment culminates in an employment action, such as Ellerth’s.

Faragher v. City of Boca Rotan, 524 U.S. 775 (1998)

Facts of the Case

After resigning as a lifeguard, Beth Ann Faragher brought an action against the City of Boca Raton and her immediate supervisors, alleging that the supervisors had created a sexually hostile atmosphere by touching, remarking, and commenting. Faragher asserted that this conduct constituted discrimination in violation of Title VII of the Civil Rights Act of 1964. The District Court concluded that Faragher’s supervisors’ conduct was sufficiently serious to alter the conditions of her employment and constitute an abusive working environment. The court then held that the city could be held liable. In reversing, the en banc Court of Appeals held that Faragher’s supervisors were not acting within the scope of their employment when they engaged in the harassing conduct, that knowledge of the harassment could not be imputed to the City, and that the City could not be held liable for negligence in failing to prevent it.

Question

May an employer be held liable under Title VII of the Civil Rights Act of 1964 for the acts of an employee whose sexual harassment of subordinates has created a hostile work environment amounting to employment discrimination?

Conclusion

Yes. In a 7-2 opinion delivered by Justice David H. Souter, the Court held that an employer is vicariously liable under Title VII of the Civil Rights Act of 1964 for actionable discrimination caused by a supervisor. The Court also held that such liability is subject to an affirmative defense looking to the reasonableness of the employer’s conduct as well as that of the plaintiff victim. “The City had entirely failed to disseminate its policy against sexual harassment among the beach employees and that its officials made no attempt to keep track of the conduct of supervisors like [Faragher’s],” wrote Justice Souter, “[u]nder such circumstances, we hold as a matter of law that the City could not be found to have exercised reasonable care to prevent the supervisors’ harassing conduct.”

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