In the long run the pessimist may be proved right, but the optimist has a better time on the trip.
─Daniel L. Reardon

New Legal Rights For Employees of Nursing Homes

New Employee Rights for Nursing Home Employees

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

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

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

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

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

Academy Open! Free Copies of Printed Book Going Fast

Our Academy opens TODAY at Noon Pacific (2pm Central / 3pm Eastern).

http://www.undercoverlawyer.com/AcademyForum/

The first month is free with no obligation to continue. Plus, the first 500 people to sign up get a FREE copy of the $197 Deluxe Edition of Work Laws Exposed. This is the bound and printed edition, not an electronic download.

http://www.undercoverlawyer.com/AcademyForum/

If you decide to continue after the first month, the Academy is $47 per month. You have a full month, however, to try it out and decide if it’s right you.

• The 30 Day Free trial of the Academy includes
• Full access to the Private Member Forum (if you’re a regular at UCL, you’ve got to check the Academy Forum out)
• Full access to all 8 Courses, including the key 4 “Core Courses” that make up the UCL system
• Exclusive Interviews with experts who have appeared on the podcast including Dr. Leikling and Marilyn Veincentos
• Campus Newspaper — with news about students, moderators, and a round up of the latest bully-fighter legal news from around the country
• Law Library — Expansive in-house information about all 50 states, plus the text of all the laws you’re rights are based on: FMLA, ADA, Title VII, GINA, and the forms to qualify for legal protection.
• Plus each month we will be adding a new course, new exclusive expert interviews, and more helpful information articles on the issues Academy Members want most.

All of this, plus the supportive community of the Private Member Forum.

The 500 free books (a $197 value) will go fast — get yours and take the Academy for a free test drive quick, before some else get’s your spot.

Hope to be chatting with YOU in the Private Member Forum later today!

Sincerely Yours,

Curt

P.S. Here’s the link again to get your free book and free trial: http://www.undercoverlawyer.com/AcademyForum/

Employment Law Academy Logo

I wanted to post a copy of the new logo for the Employment Law Academy, just to let everyone know that, yes, progress is being made!

You may also notice that the tag line “Join the Resistance” came straight from a forum member’s comment, which was something like “it feels like we all belong to the Resistance.”

Let me know what you think of it!

Are You a Victim of Sexual Favoritism at Work?

I was working on a summary of a case called Miller v. Dept of Corrections for the community when, like fate, this question was posted to the forum by a woman who was feeling driven from her job by her boss:

QUESTION: [Edited for clarity]  “I don’t think he’s discriminating based on sex, race or religion. He just didn’t like what I said one day, which was that he “should be more discrete with that girl in accounting” since he is married.

He has had it out for me ever since.

He gave me a horrible review. I went to HR with examples disproving the review. They pushed it to the side and agreed with him. I talked to his boss and stated if someone was going to be given a review that bad then examples should accompany it. She said “Well, he said he told you about it”.

I work in a technical field. His review was based on what I said to him, not my work. When I asked how is that possible in a technical field, where I am given trouble tickets to work on, they said the intangible and subjective items matter most.

Fast Forward, I am now on a performance improvement plan and made to do things that no one else on my 12 person team is required to do. He took away my entire bonus when I can prove, by way of tickets worked, that I do 33% of the work on my team.  I am stressed, I cry all the time, I walk on eggshells and HR is not helping at all. It’s like nothing I say or any proof provided will make a difference. Lastly, it’s Christmas and I haven’t bought my children anything…After i leave work I can’t stop crying enough to make it to a store…”

ANSWER: As I mentioned above, it seemed like fate that this question arrived while I was working on a summary of Miller v. Dept of Correction; let me tell you a bit about it.

Edna Miller worked for the Department of Corrections in California.  Miller worked for a Warden named Kuykendall, who was having three simultaneous affairs with his own secretary, an associate warden, and still a third subordinate employee; The three women were named Patrick, Bibb, and Brown.

Sexual Favoritism Starts

Patrick and Miller both applied for a open management position.  Miller was the senior employee, with more training and more releveant expereience.  A panel of interviewers recommended that Miller be awarded the position, but Kuykendall gave the promotion to Patrick.

Soon after Patrick received yet another promotion and became Miller’s direct supervisor; it was common knowledge that Kuykendall and Patrick were having an affair, and there was widespread grumbling that the way to get ahead was to have sex with the Warden.

To further complicate matters, a new female Deputy Warden named Yakamoto transfered into the workplace and began inviting Miller to dinner.  It was known that Yakamoto was a lesbian, and although Miller refused Yakamoto’s advances Brown did not.  Brown, at this point, was having affairs with both Yakamoto and Kuykendall.

Retaliation Against Miller

Miller believed that because she had refused Yakamoto’s dinner invitations, Yakamoto began interfering with Miller’s ability to do her job.  Yakamoto countermanded Miller’s orders, reduced her supervisory duties, added onerous low-level duties on Miller, and made unwarranted criticisms and write-ups of Miller’s work.  When Miller threatened to report Yakamoto to Kuykendall, Yakamoto and Brown threatened to harm Miller.

Eventually Miller did report Yakamoto’s abuse to Kuykendall, who assured Miller that he “would look into it.”  Nothing ever happened.  Feeling that she had no where else to turn, Miller reported Kuykendall’s failure to control Yakamoto and all Kuykendall’s own affairs to Kuykendall’s supervisor, the Regional Director.

The Regional Director started an internal affairs investigation.  Miller was required to paticipate in interviews as part of the IA investigation, but she was promised confidentiality.  Soon after, however, it became apparent to Miller that Brown knew exactly what Miller had said during to the investigators.

Failure of Promised Confidentiality

Brown and Yakamoto again began retaliating against Miller; one time Brown screamed at Miller at work, then actually followed Miller home from work to continue screaming at her.

Miller, feeling that the stress was damaging her health, resigned from the Department.  Kuykendall retired.  Yakamoto was demoted and given another transfer.  Brown resigned with disciplinary charges pending against her.  About a year after resigning Miller filed a lawsuit against the Department of Corrections alleging sexual harassment and retaliation.

First Court Battles Lost

The trial court and the appeals court found against Miller, concluding that “a supervisor who grants favorable employment opportunities to a person with whom the supervisor is having a sexual affair does not, without more, commit sexual harassment toward other, nonfavored employees.”

The Supreme Court of California reversed both the trial court and the court of appeals, and instead found for Miller. The California Supreme Court reasoned that it was reasonable for Miller to believe that her employer was hostile toward women because of “widespread sexual favoritism.”

Signs of “Sexual Favoritism” You Should Watch For

The Court cautioned that “the presence of mere office gossip is insufficient to establish the
existence of widespread sexual favoritism,” but, enough evidence can be shown by such things as:

1. Admissions by the participants concerning the nature of the relationships;
2. [B]oasting by the favored women;
3. Eyewitness accounts of incidents of public fondling;
4. Repeated promotion despite lack of qualifications; and
5. A supervisor’s admission that he/she cannot control a subordinate because of a sexual relationship with the subordinate.

Despite all of this, the Department of Corrections argued that Miller should not prevail, because this case would mean that courts were starting to regulate private consensual relationships, and the personal privacy of employees and employers alike should not be compromised.  The Department argued that it is better to treat sexual favoritism as a matter of personal preference, in order to avoid establishing a “civility code” governing the workplace.

The Court flatly rejected this argument, stating that “it is not the relationship, but its effect on
the workplace, that is relevant under the applicable legal standard” (emphasis added).

If You Are a Victim of Sexual Favoritism

If you are the victim of sexual favoritism at work, don’t be afraid to print this case out and hand it to your H.R. person or any attorney that you are hoping will take your case.

You can download the full case of Miller v. Dept of Corrections with this link: http://bulk.resource.org/courts.gov/states/Cal/S114097.PDF

Although Miller was decided under California law, the California Supreme Court was persuaded by written regulations from the EEOC which apply to all of us, in all 50 states.  You might want to highlight that part for your HR person.  It starts on page 19.

Have you seen this in your own workplace?  I think I did — where young male attorneys could not get a break with influential senior partners who only wanted to work with young attractive female associates.

I think this is an area of the law that is ripe for expansion.  Let me know what you have seen in your own workplace, and I’ll tell you what else on the topic I can find.

-Curt K.

Does Your Abusive Boss Keep Notes About You Outside Your Personnel File?

Today’s post is an excellent question I received in the Undercover Lawyer Forum:

Question:

Answer:

One thing many employers often get wrong is what a “personnel file” is.  They think if an employee requests a copy of the personnel file, the employee only gets what is kept in a folder with “employee’s name” marked on it, and which is kept in a file drawer along with a bunch of other employees’ files.

Many employers mistakenly believe that if they keep documents about an employee’s performance some where else (like a “working file”, or in a notebook, or notes in an organizer) then those documents don’t really exist.  The employee is not entitled to those documents.

This is not correct.

If state law give you a right to a copy of your personnel file, then you get EVERYTHING that references your job performance — without any regard to where the documents are physically kept.  Formal personnel file, working file, wadded up notebook paper, post-it notes… it doesn’t matter!

If an employer denies that document outside of your personnel file exist and will not give you copies (even though you KNOW those documents exist), the your employer will not be able to use those ‘secret documents’ against you.

If your dispute with your employer goes to court and your employer continues to deny the documents exists, then your employer could face being sanctioned for discovery violations.  Such sanctions frequently include fines, prohibiting the use of the documents against you, and payment of some of your attorney fees.

Conclusion

Unless you have a witness who has seen the mystery documents, you may not be able to get those papers unless you go to court.  BUT, you will not have to fear those documents being used against you.  If your employer insists on keeping secrets about you, the court will deem those secrets to be non-existent.

Do you have a boss that keeps notes on employees and denies those documents exist?  Have you ever tried to get copies of your personnel files and been rebuffed?  Tell us what happened to you in the comments section below.

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

Forum Posting Contest: Win New 3G iPhone, Shuffle, or iTunes Gift Card

The Undercover Lawyer Forum is now open, and the posting contest to win a 3G iPhone started July 1st.  To recap, we are going to give away prizes to the three people who post the most messages in the forum during the month of July.  Some contests have ridiculously impossible chances of actually winning something.  But our forum contest puts YOU in control of whether or not you win.  Just post! The three prizes are:

1. Grand Prize: Brand New 3G Apple iPhone and a copy of “Work Laws Exposed”
2. Second Place: Brand New Apple iPod Shuffle and a copy of “The Bad Boss Folio“
3. Third Place: $30 iTunes Gift Certificate and a copy of “The Bad Boss Folio“

Contest Dates
The contest begins July 1 and ends on July 31 at midnight EST.  At that point, the person with the most posts wins the Grand Prize.  The person with the second most posts wins Second Prize, and the person with the third most posts wins Third Prize.

What Should You Post About?

Have you ever been frustrated with another person at work?  Tell us your story!  Has your family member or friend ever had to work for a horrible boss?  Tell us their story.  If someone else has posted about their own experience, offer encouragement and support.  Have a question about some aspect of the law and your work? Post a question.  The possibilities are as wide ranging as the types of jobs we all work in.

Disclaimer

Posts must be done in “good faith”, making some type of comment or contribution to discussions about the ideas of work, relationships, law, and life.  For example, if someone registers on forum on the last day of July, and quickly submits 1000 posts that are nothing but “LOL!” over and over, that person will not win.  If you post real comments in good faith, then you’re on your way to talking and texting over a new iPhone.

Head straight to the forums now by clicking here!