New Legal Rights For Employees of Nursing Homes

If you work for a nursing home, convalescent hospital, hospice care facility, or any other health care facility that accepts federal funds, the Health Care Reform bill gives YOU new legal rights, too.

If you or any other employee reasonably suspects that a crime (like billing fraud) has taken place at your workplace, then you must report it to at least one law enforcement agency. What happens if you don’t? Up to $200,000 in fines.

Evidently nursing home managers have been leery of reporting a resident who has abused or beaten another resident. Mangers don’t want the negative publicity, and don’t want law enforcement getting involved in what he nursing home views as “a medical issue”. So, if you are employed at nursing home you must report any action by a manager or resident that you believe is a crime.

But what if you or a co-worker DO report something that you reasonably believed was a crime – but it turns out it wasn’t. Your boss gets mad and starts harassing you, and threatens to write you up for doing your job the way you have always done it. This is retaliation, and your boss at the long term care facility cannot legally retaliate against you for reporting the suspected crime, even if you were wrong.

The new anti-retaliation provision in the Health Care Reform Bill calls for fining bosses who retaliation up to $200,000 and/or suspending the facilities federal funding for up to two years (which would probably put a lot of facilities out of business).

Finally, all nursing homes must now have a standardized complaint form with a formal procedure in place to resolve complaints. Again, retaliation against anyone who fills out a complaint form is prohibited by law.

Bully Boss Survivor Marilyn Veincentotzs and the new Undercover H.R. Director (OnYourSide!)

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A Survivor’s Story: Marilyn Veincentotzs
Episode 12 features an interview with Bully Boss survivor turned author Marilyn Veincentotzs.  Marilyn, who also goes by “Dr. Vee”, learned from “Work Laws Exposed” how to fight back against a bullying boss.  Then she helped a good friend do the same thing.  Then she took her expertise in organizational psychology and wrote a book, “How Organizations Empower Bully Bosses: A criminal in the workplace.”

Personal Help With YOUR Work Problems
In Episode 12 we also introduce a fantastic new resource for people who need help with responding to a bullying boss: The Undercover HR Person!  That’s right, our forum stalwart and HR expert, “OnYourSide”, is actually named Mary, and Mary is now available to help you with workplace issues too.  If you want help composing a letter to your boss, filing out a complaint form, preparing a timeline to use when meeting with HR, or completeing FMLA forms — then Mary is the perfect resource for you.

Hire Mary to Help You
Would you like help crafting a professional response to your boss, your HR Dept, or preparing a submission to the EEOC? You can hire Mary by contacting her at this address: mary@undercoverlawyer.com. Her rate is $50 per hour, and there is a 1 hr minimum. You won’t find more professional, personal help anywhere else at a rate like this. But her time is limited, so if you think you might need her help contact her soon before the limited spots are gone. mary@undercoverlawyer.com

Quick Tip Contact Info:You may be closer to qualifying for social security disability than you think.   You owe it to yourself to find out just how close you are: www.DisabilityDigest.com

Want to know Marilyn’s complete story? Buy her book right here!

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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 gives 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://www.undercoverlawyer.com/academy/member_forum.html

The Quick Tip is a site where you can rate your boss, and check to see if your 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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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

The Whistleblower Wins Money. Big Money.

A male flight crew employee working for “Southern Air Inc”, which is a cargo airline, complained twice to managment about safety concerns. First he complained about inadequate rest breaks. Then he complained about being forced to work extra hours, beyond what the FAA allows by law. So what happened next?

Southern Air retaliated against the employee, of course! First he received less work. Then the company “discovered” problems with his job performance. Then, in April of 2008, he was terminated.

After being terminated the employee filed a complaint with a regional office of OSHA.  OSHA investigated, and found that the employee’s complaint had merit.  OSHA issued a prelimiary opinion, ordering Southern Air to pay the terminated employee:

“$300,000 for loss of career wages, $135,240 in compensatory damages, $7,394.65 in attorney’s fees and back pay of $1,485 per week, plus interest, from April 7, 2008, through the date of payment.”

That comes to a total of $505,004.65 before interest.  To break down how OSHA reached that figure, let me explain that “career wages” means how much money the flight crew member would have made between now until the end of his career at Southern Air — if Southern Air had not illegally terminated him for being a whistleblower.

“Compensatory Damages” of $135,240 includes out of pocket costs that this employee suffered because he was illegally terminated.  A portion could be the cost he had to pay for COBRA health care coverage every month, that would have regularly been paid by the company.  Another portion of that figure could be medical bills that he incurred for stress and anxiety caused by management illegally terminating him. 

His attorney fee award of $7,394.65 is shocking.  Shocking because it’s so LOW.  The usual total cost to take an employment lawsuit to trial if you were paying your attorney on an hourly basis would be $50,000 to $100,000 (not if you were paying the attorney a 33% contingency fee). 

Why is the cost so low?  Because most of the work was done by OSHA, the administrative agency that the employee complained to.  This is part of why I advocate filing an administrative complaint early in the process; it saves you tons of money, and still provides you with legal protection.

Now, this story may not be over.  Both sides can file an appeal with Labor Department.  If they don’t like that result they can appeal to federal district court.  But interest will be accumulating the entire time, and the legal interest right for unpaid judgments is much higher than what banks pay.  It’s 9% here.  That’s a big incentive to pay the employee now and forego all the appeals.

If you would like to learn more about protecting your own rights and learning how to pursue a whistleblower or administrative claim you get can my book on the topic, which has helped thousands of people already.

Or, if you would like to learn more about the employer in this case you can read about Souther Air on the company’s own website: Southern Air Website (with photos); there’s also a short Wikipedia article about the company you might enjoy checking out HERE.

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

Download PDF Transcript
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?”

10 Steps of Walking the Plank Toward Termination: Step 2 You Have a New Supervisor

Note: If you missed Step 1 in this series you can read it HERE.

If a new supervisor takes over your department, brace yourself.  New supervisors change everything, and employees HATE that.

What you need to understand is that it is unthinkable to a new supervisor to not change everything.  A new supervisor feels like they need to PROVE that they were the right person for the job.  How do they prove it?  By making changes.

It doesn’t matter to your new supervisor that everything was working just fine, thank you very much.  Your new supervisor is going to make changes for change’s sake.  Your supervisor believes that their changes prove that they are making their mark, shaking things up, raising the bar, blah blah blah.

In your new supervisor’s mind, this is now their kingdom, their way of doing things, their staff, their leadership style, and it’s purpose is to demonstrate to the world that they are awesome.

If you are a man, image a new coach of an NFL team.  Is he going to bring in his own staff?  Is he going to run his own plays or the old coach’s plays?  The new coach is going to completely revamp everything and install his own system.  If the team then wins more games, it will prove that the coach and the coach’s way of doing things are better than the last coach, and the new coach gets all the credit.

What do you call a coach who doesn’t change any systems, uses all the same people, and follows all the plans of the former coach?  A place holder.  Coaches who change nothing are merely “place holders” in between the really high caliber coaches.  You know, the ones with “vision.”

I’m not saying your new supervisor is supposed to see themselves this way, or that it’s a good thing.  I’m not saying that you should accept all these changes; not at all.

I’m just trying to explain what’s going through your new supervisor’s mind.  This really is how they see themselves.

Now, my own spouse and my own mom don’t care much for sports analogies.  Some women do (which is cool), but to women like my spouse and mom, sports analogies just doesn’t make sense.  So I’ll use another example that won’t apply to all women, but might be more meaningful than a sports analogy (can you tell I’m trying hard to not be discriminatory?).

Pretend for a moment that you just bought a house.  Your new house is in a slightly better neighborhood, and is slightly bigger than your current house.  After you sign the loan papers and get the keys, you are free to make any changes you want.

Are you going leave all the same wallpaper that the previous owner put up?  Will you keep the same odd paint colors that the previous owner chose?  Are you going to arrange your furniture in the same pattern and places that the old owner put their furniture?

Of course not!  You want to leave your mark on the house, and make it into your home.  You want to “make it yours” by choosing your own colors, arranging your own furniture your own way.  What would you think of someone who moved into a house and didn’t change a thing?  You’d probably think they were incapable.

And that’s what your new boss is afraid of — appearing incapable of doing the job.  Being capable of doing the job (in their mind) means doing it their way, with their people, in their style, and measuring everyone according to their scale.

Again, I’m not saying your new supervisor should do this.  I just want to warn you; they will do it.  They actually believe that their success or failure as a supervisor depends upon whether or not they change things around.

A new supervisor means new standards, new procedures, new priorities, and probably more new faces.  Also, if you really got along well with your old supervisor, getting a new supervisor will be especially hard.  Your old supervisor knew you, trusted you, and let you do the things you are good at.

Your new supervisor doesn’t know you, doesn’t trust you, and wants you to do the things that will make him or her look good.  And those tasks may NOT be the things you are good at.

If you start to feel or see this kind of conflict, beware.  Especially if you’ve had a few run-ins with your new supervisor, and then he or she begins referring fondly to people from their former organization.  If that happens I guarantee that your new supervisor is thinking about bringing people from their old company over to the new company, your company, and giving those people your job.

New Supervisor = Warning, changes on the way

New Supervisor + Conflict = Red Alert, discipline on the way

New Supervisor + Conflict + Comments about former coworkers = terminations on the way

Have you ever dealt with a new supervisor, or seen one change everything — even though the old way was working?  Tell us about it in the comments section!

Can Complaining About Job Harassment Save You From Layoffs?

How many news stories have you seen or read lately that blare dark and stormy stories of our slowing economy, banks going bankrupt, and workers facing wave after wave of mass layoffs?

Have you noticed, too, how people act out during stressful times?  Sometimes they act out in stupid ways.

A male co-worker acted stupidly toward Jessica Houston, when she was sharing a half-time scheduler position at an Indianapolis hospital.  But the male co-worker wasn’t the only bad actor in this case; Jessica’s manager got involved too.  There was plenty of stupid to go around.

Real Life Case:

The male co-worker was 52, and Jessica was 22.  Two times he found her in a break room or lunch room, sat down in her lap, and whispered in her ear “You’re beautiful.”

Houston felt ashamed and confused.  It was her first real job, and she wasn’t sure what the standard for behavior was in the working world.  After the first instance Houston just hoped it wouldn’t happen again.  But after the second time she knew she had to speak up to somebody in management.

Unfortunately, that “somebody in management” seemed annoyed at Jessica when she complained.  Jessica felt like the Hospital’s response was basically “this isn’t a big deal.”  In fact, the manager did not want to do anything because Jessica did not want to file a “formal” complaint.

That was management’s first dumb error — blowing off Jessica’s complaint and acting like it didn’t really amount to anything.  Jessica felt that she had to justify why this was a big deal, even if she did not want to make her complaint “formal.”  So Jessica revealed that she had been sexually abused as a child.  She could not tolerate this similar behavior at work.

Then came management’s second dumb error — never getting back to Jessica about what was done to the perpetrator.  Management didn’t even tell Jessica if anything had been done.

Jessica felt panicked and stressed when she came to work each day.  First, her manager told her nothing could be done unless Jessica made the complaint “formal” (whatever that means).  Then she had been forced to , Jessica tried to take her complaint up one level.  She complained to the Hospital’s General Counsel about the lack of action on her harassment complaint.

Within two days Jessica saw that the Hospital was seeking applicant for her own position, but at 1/2 time instead of 1/4 time.

The same manager who didn’t take Jessica’s harassment complaint seriously explained that the two 1/4 time scheduler positions were being combined into one 1/2 position with benefits.  Jessica was not invited to apply because she was also a student and had said she could not work 1/2 time hours.

Obviously, Jessica was not hired for the new 1/2 position, and her position was eliminated as part of this “reorganization.”  The hospital said she could still do “on call” work, but after six months she had not been called in even one time.  At that point a termination letter arrived in mail.  The same manager who eliminated Jessica’s job and laid her off had also checked “No Re-Hire” on the termination form.

Houston sued the hospital, arguing that her termination was in retaliation for her sexual harassment complaint, and for her complaint about how her sexual harassment complaint was (not) handled.

The Hospital claimed that the “restructuring” was simply because it’s easier to have one person working 1/2 time instead of two people working 1/4 time.  It supposedly had nothing to do with Jessica’s complaints.

She Loses, Then She Wins

At the trial court Jessica lost.  The court agreed with the Hospital, and tossed out Jessica’s case before it got to a jury.  On appeal, however, 2 of the 3 appeals judges voted to reinstate Jessica’s case and let her present her story to a jury.

The appeals judges ruled that Jessica should be allowed to take her case to a jury, because a jury could decide that she had been retaliated against for her complaints.  The court specifically said that Jessica did NOT have to prove that sexual harassment took place.  She merely needed to show that her manager eliminated her position, terminated her, and gave her “no re-hire” status because she complained.

“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.

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