“I Went On Med Leave and Now This…?!” Employee Unfriendly H.R.

Of the many questions I receive and respond to each week, I thought this one was particularly interesting because it shows how short-sighted and employee-unfriendly H.R. departments can be.

A gentleman used medical leave for the first time in his twelve year career. He had to work with his doctor to adjust some medications; then he was set to return to work and continue in his twelfth year with the company without a single bad appraisal.

“CAN I SCREAM DISCRIMINATION…”

Suddenly and without warning he receives a letter from the Human Resources Department that states:

“….if you will need accommodation(s) when you return, please contact the Office of Workplace Diversity before your return. They will assist you with that process……”

The letter doesn’t sound mean, but what does it assume about the employee?  More importantly, how did it make the employee feel?  Here’s what he said:

“What in the world? I am out on FMLA so that my meds can be adjusted. This is the first time in 12.5 years I have taken sick leave because of [a serious condition].

“Suddenly, I am an ADA case too? If 12 years doing the job does not demonstrate that I can perform the essential functions, with or without accommodations, I don’t know what does.

“Can I scream discrimination because they have decided that I need more ‘help?’”

I don’t think H.R. people even think about how letters like this are going to be received by employees.  Maybe the H.R. people don’t even care.

HR DEPARTMENTS ARE DESPERATE

What H.R. people DO care about, however, is showing the company executives that “HR will defend the company at all costs and improve the bottom line.”   HR people are desperate to prove that their department help the company’s bottom line.  In tough times, which departments are the first to get cut?  The ones that don’t help the bottom line.

So, this person’s HR professional probably sends out a letter like the above to every single person on FMLA leave.  I doubt the letter had anything to do with this gentleman specifically; I’d bet money it’s a policy to always send such a letter.

Here’s why: Employers have gotten the smack-down by judges when an employee returns from medical leave and is having a hard time doing their job. It’s obvious to the employer that the person who was just out on leave is hurting, but the employer doesn’t say anything about it, or offer any help, or offer any accommodations at all.

Instead, the employer writes up the employee for “performance issues,” then fires the employee. When the employee sues, the employer says “Hey, we’re not discriminating against the disabled! We didn’t know he/she was disabled! And besides, the employee NEVER said the magic words “I need an accommodation for my disability.”

THE EMPLOYEE GETS $1 MILLION

This is where the court did the smackdown on the employer. The Court says, “B.S.! You DID know. You just approved his medical leave under the FMLA. Your disingenuous crap may fly in the corporate world, but you’re not hiding behind any “magic words” excuse in my courtroom you sonofabitch.”

Then the employer loses a million dollars.

After that, all the other employers in the nation wet their pants saying “We don’t want to lose a million dollars!” So in response “proactive” HR people start sending out letters to people who aren’t even back from leave yet — the letters say “if you need anything at all, just let us know! We even have a special full time Diversity Officer to take care of your special disability needs.”

Now, if an employee like the gent who wrote to me does return to work, does poorly, gets terminated, and sues the company — what’s going to happen?  The HR Department is going to proudly pull out the “is there anything we can do for you” letter.

It’s a CYA letter, plain and simple.

Undercover Lawyer’s Take-Away Tip:

I coud tell that the fellow who wrote to me was, like most employees, a proud person and a thoughtful person.  He just wanted to do well on the merits.   So I suggested that he smack the “disability” issue right back down the HR Department’s throat.

Here’s the letter you can send to your HR Dept:  “To the contrary, I’m absolutely fine and I do not want to be regarded as having a disability.”

Pow! Now they will really wet their pants.  Because the ADA forbids an employer from treating an employee any worse because the employee is “regarded as” being disabled.

This simple letter totally sticks the employer and the HR person between a rock and a hard place. And they’ll be stuck there not because they are trying to be nice and help their employees, but because they (or at least the HR Dept that sent this letter) doesn’t give a crap about the employees and only wants to cover their own butt. That’s all they’re trying to do. And with the “I don’t want to be regarded as disabled” letter employees everywhere will throw it right back at them.

Then the employees, like the gentleman who wrote to me, can just go back to doing their job well. Like they always have.

Go To Trial or Settle Your Case?

Whether or not to take a case to trial, especially an employment case, can be a gut wrenching and life changing decision.

Make the right decision, and you vindicate yourself, prove your boss wrong, and walk away with two or more years’ worth of wages in your pocket.

Make the wrong decision, and you spend $15,000 in costs (not the attorney’s fee, but the attorney’s trial expenses), and you walk away with nothing to show for it besides 2-4 wasted years of your life.  And a gloating ex-boss.

So, it’s obviously a HUGE decision.

That’s why I want to tell you about how the decision to go to trial was studied by scientists, and what they found out about what is usually the right decision, what what is usually the wrong decision.

There article is from the Journal of Loss Prevention, and like most information about going to trial, it’s written for employers (who can pay scientists to study things for them).  But, there’s lots of good info here for employees — and even some good news about employment lawsuits in particular (see highlights).  Here’ the piece:

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NEW STUDY CAN HELP YOU DECIDE WHETHER TO GO TO TRIAL

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A new study of civil claims between 2002 and 2005 finds that most plaintiffs who go to trial instead of taking a settlement offer end up with less money than if they had taken the settlement offer.

According to the study, the plaintiff made the wrong decision by proceeding to trial in 61 percent of the cases. Defendants made the wrong decision far less often – 24 percent of the cases. Jonathan D. Glater, “Study Finds Settling Is Better Than Going to Trial,” The New York Times (Aug. 8, 2008).

Commentary and Checklist

Whether an employer is on the plaintiff side in a lawsuit or the defense, the vast majority of cases do settle; estimates put the number between 80 and 92 percent.

Deciding to go to trial comes with a hefty price tag if the decision results in a loss. On average, getting it wrong cost plaintiffs about $43,000 and, although wrong less frequently, defendants paid a much greater price when they erred: $1.1 million.

This study is the largest of its kind to date and examined trial outcomes over a 40-year period – although the data for the losses was only from 2002 through 2005. The research shows that over time, poor decisions to go to trial have actually become more frequent.

There are a variety of reasons why an individual or an organization may refuse to settle a lawsuit. One reason is that they may not fully understand the chance and consequences of a loss at trial. Another is that, emotionally, they may not want to let go of the fight – no matter what the consequences.

Interestingly, plaintiffs are more likely to roll the dice and go to trial when they have hired an attorney on a contingency fee arrangement. In other words, if there is no monetary settlement in the plaintiff’s favor, the plaintiff does not pay for the lawyer’s services.

Missing from the survey are the costs and fees associated with going to trial. In some instances, the fees and costs associated with trial may exceed the verdict.

In the employment context, plaintiffs are more likely to find a jury that identifies with them (most jurors are or were employees); therefore, less risk is involved when employers settle with plaintiffs/employees so long as they do so quickly before expenses and emotions spiral out of control. To that end, here are some things to consider:

Take your emotion out of the decision on whether to settle or try a case. You should make a business and not an emotional decision.

When considering the costs of going to trial, make certain that you add fees and costs.

Your time and the time of your people responding to discovery requests and attending depositions should also be considered when deciding to extend litigation.

Make certain that your attorneys continually communicate with the plaintiff or their attorneys. Good communication and professional demeanor will always allow for a better settlement offer.

When mapping your defense, make certain that settlement is always an option and that settlement is explored as early as possible before fees begin to escalate.

This informational piece is part of “The Loss Prevention Journal” published on August 18, 2008.

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Notice the figure of $43,000 if a plaintiff loses at trial?  I think that’s high, but not totally unrealistic for an employee-plaintiff in an employment lawsuit.  Usually the plaintiff-attorney absorbs a large portion of those costs.

However, if you are considering hiring an attorney to take your case against your employer, YOU MUST CHECK WHO PAYS COSTS, especially if you lose.  If you win, costs are just deducted from the winnings.  If you lose, it can empty your savings, your retirement, even sap away your home equity.

The final nugget in this article I want to comment on is the portion about how some people may not want to settle because they don’t want to let go of the fight.  How likely would you be to fall into that trap?  How likely would your BOSS be to want to keep fighting because they like to fight?

Please tell us if you have seen any of these happen at your own work, whether to yourself or to people around you who took on the company — how did the managers react?  Did the case settle or go to trial?  Or, are you trying to hire an employment attorney?  What traits are you looking for?

-Curt K (The Undercover Lawyer)

Bad News: No Home Sales = No Emergency Cash

Why are people so concerned about their jobs right now?  Because they see the “For Sale” signs going up all around them — and they know the reason is because these neighbors can’t afford their mortgages any longer. Billionaire investor Warren Buffett said Friday the economy continues to be in a recession, by his definition, and will continue to be for at least several more months. (Full Article Here.)

U.S. Fed Chief Ben Bernanke said Friday that “the financial storm that reached gale force” last year “has not yet subsided, and its effects on the broader economy are becoming apparent in the form of softening economic activity and rising unemployment,” . (Full Article Here.)

That certainly appears to be the case in my own neighborhood.  I live in a sub-division that was built five years ago.  There are far more homes for sale right now than any time in the prior five years.  And all those homes are staying on the market longer. With few of any signs displaying “Sold” across the top, families like mine can no longer easily access their equity which serves as the emergency fund for so many people who live without the fat savings accounts that financial magazines breezily discuss — as if everybody has one.

The truth is that most people, myself included, make money from working at my job.  The only other way I “make” money is through the appreciation of my home.  Now, with home appreciation cut off, I have to rely more than ever on my job.  And I know I’m not alone in worrying about keeping a regularly paycheck coming in for my family, because more people than ever ARE losing their jobs.

The U.S. Dept of Labor announced that “Year-to-date layoff figures in 2008 were the highest January-July totals since 2003.”  The region that suffered the most was the Midwest, followed by the South and West.  All areas suffered, just to a lesser degree. The largest economy in the west is California, and that state recorded the highest number of initial unemployment claims filed due to mass lay-offs in the month of July with 33,250 people out of work, largely due to layoffs in administrative and support services and in educational services. The next highest numbers of mass layoff claims were in Michigan (27,672), Ohio (19,402), and Kentucky (11,907). (Full Article Here.)

The Overland Park, Kan.-based firm, the local-phone service provider in 18 states.  And what does it blame these problems on? The slow down in housing, just like everyone else.

People are worried because they are awake and listening, and they see what their neighbors are going through. With most people unable to access the equity in their homes, the regular paycheck becomes the sole and crucial source of income. Now more than ever it’s important to protect your job with every tool available. For example, you can increase your education, so that you offer more skills to your employer.  Or, you can simply work harder and more efficiently, so that management views you as an indispensable part of the company machine. Some people, however, are in a situations where the boss or manager are already deciding who to let go; you may not have time to increase your skills through education or make a new impression through working harder. If you are in the latter case, it’s important that you maximize all the legal protections the law gives to employees. Even “At Will” Employees can protect themselves at work through the use of protected classes.  To learn more about protected classes and how anyone can qualify for their protection you can read my free 7 Part Report on the Secrets of Work Law.  Part one comes to you immediately, and all you have to do is sign up with your name and email address in the green box at the top of this page. My next post will address how supervisors and managers are themselves feeling the stress of the economy; bookmark this page and return Wednesday to learn more about how to respond to the economic stress that your own boss feels.

Podcast #4: Michelle + Dan = Retaliation

Michell and Dan began their working relationship as friends.  Dan supervised a group of 8 employees; 7 young men plus Michelle.  Michelle was only 21.

Before work each morning, however, she had to drop off her young son at her mother’s house.  As a result, Michelle often arrived between 5 and 15 minutes late.

But Dan was sympathetic to Michelle’s struggles as a single mom.  He was the only other person at work with children.  Plus, how could you not like Michelle?  She worked hard, she was cute, and she could talk “like one of the boys.”  In fact, sometimes she made the boys blush!

Yet, little voice in the back of Michelle’s head kept telling her that the crude sex talk at work wasn’t something to be proud of.  In fact, she admitted to herself that she wouldn’t want her son talking like this.  But Michelle never spoke up… until one day when one of the guys said something so crude and disgusting that even she couldn’t take it any longer…

Listen to the podcast to hear how Michelle and Dan’s relationship changed forever, how Dan nearly lost his job, and to learn if Michelle was able to keep her position with the company.

Just by listening to this true story you will learn about retaliation in the workplace, and also about the importance of timing when establishing retaliation claims.

Show Notes and Links:

During the show I mentioned the blog article by “Careerguyd” about violence in the workplace.  If you would like to read that article yourself just click HERE.

I also mentioned that one of the members of the Forums has her own blog that is worth reading.  That is “HR Wench” and you can reach her blog by clicking HERE.

Finally, I revealed that my ace WordPress customizer is Sherry Dedman of Blog-Solace.  If you have your own blog and would like a technical expert to help you spiff it up, add complex plug-ins, or you just need some advice, you can check out Sherry’s blog about blogs HERE and her forum about the technical side of blogs HERE.

Direct download: UCL_Podcast4.mp3

P.S. Be sure to come to the forums and let me know which states you want added first to the new “State Law Resources” section.

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

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.