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

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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/.

Avoiding the Axe…Part Two — by Jenn S.

Here are a few more tips for keeping on the straight and narrow at work and avoiding many of the common pitfalls that I have seen result in many lost jobs…

DON’T gossip. It’s hard, I know. I have a hard time following this one myself. Gossip is just so fun. Though talking about other people’s faults and foibles can be great entertainment, it can also cause a lot of problems. Generally speaking, people don’t like to be gossiped about and when word gets around that you’re one of the folks spreading other people’s business to all parts of the office, you might become the target of some unpleasant commentary yourself. Office dramas and rivalries often begin with what some might characterize as harmless gossip and end with someone losing a job or at least being moved or demoted. And be especially leery of the boss or supervisor who pumps you for the office gossip and information on coworkers… You might think that you’re scoring points with management but ultimately, you are demonstrating a lack of loyalty and integrity. Best advice: Steer clear of the juicy gossip mill.

DON’T get sucked into the cancer crowd. Cancer, as an illness, usually starts out small. But those cells multiply and the disease spreads until it overtakes its host OR the host eliminates it through treatment. Same goes for an office “cancer.” One unhappy employee starts grousing about how mistreated they are and how rotten management is and then goes around trying to get other employees to join the grousing. A small group of grousers may then emerge, bitching and complaining about the workplace but not really confronting management on any certain issue. And their negativity spreads and spreads, ultimately affecting employee morale and productivity. Sound familiar? Well, let me tell you that these little cancer groups do not go unnoticed by employers and the treatment of choice is often termination. Instead of being part of the cancer, try being part of the cure. Said another way, if you are unhappy about something at work and know that others are, too, try to actively make a difference, instead of just letting things fester and brew. If you are viewed as part of the cancer crowd, you might just find yourself jobless when management seeks to stop the spreading negativity.

DON’T be the office jokester. There is always one, isn’t there? That person who always has some new joke or story to relate that is highly inappropriate for work but who shares it, anyway? Get this – Save the joking for your non-work friends. Learned a great new joke about some racial minority? Save it. Think it’s funny to shove two oranges under your shirt and pretend that you’re the supervisor who just got breast implants? Do it after work at your apartment, preferably alone. Acting out in the workplace is a sure way to get attention from your coworkers but you may also garner attention from management, who will not likely be amused. Inappropriate behavior in the workplace paves a road right out the door so keep a lid on your inner comedian.

DON’T let your guard down. This tip goes right along with the previous one. Do not let yourself get too comfortable at work. It is tempting, especially when you’ve become very friendly with your coworkers, to let your professionalism slide. In a fashion that is alarmingly reminiscent of high school, we want to be “cool” and part of the crowd and are willing to lower our standards of conduct to fit in. But the bottom line is this…you may feel safe in your work environment to “be yourself” or “be real” but you’re not. Do not drop your guard and think that because you are “friends” with everyone at work that it’s cool to drop f-bombs or pinch your cube-mate’s butt. The familiarity that is created at work can be a good thing, certainly, but it can also backfire…badly. Best advice: Do your best to maintain a professional and friendly demeanor at work and avoid crossing lines into unprofessional conduct.

STEP 5 of Walking The Plank Toward Termination: Is Your Boss Hassling You About Tiny Aspects of Your Work?

If you feel like your boss has suddenly started hassling you about tiny, and seemingly irrelevant aspects of your job, then a red flag should go up in your mind.  This is another tell-tale sign that your boss is on the hunt for an employee to terminate — you.

Your boss may be trying to “build a record” of documented mistakes you have made, in order to justify terminating you. Your boss probably has not given you any negative feedback for years, if ever. And when the boss evaluates the major parts of your job — everything is fine. So, instead of noting your solid performance and moving on, your boss redoubles his or her efforts to find something, anything, that you are doing wrong.

This leads your boss into the tiny minutiae of your job — items that you can’t really say are unimportant, but are often get done not exactly “by the book.”  Your boss comes in, and makes a huge deal about something you are doing that is not EXACTLY “by the book.”

Everything works fine.  And your boss has never cared.  Until now.

But to your boss, this is an end-of-the-world problem you’ve caused.

Step back and realize, your boss’s reaction fits with how bad the boss wants to let you go; your boss’s reaction does not fit with how bad a mistake you actually made.

What Should You Do?

1. Ask your boss what is going on

Be polite about this. Don’t sneer and be sarcastic. Simply state that its obvious that something has changed, and ask what happened? Why the change?

You’re probably going to hear something like “Well I found one obvious error in your work, so I’m worried that there are other errors in your work that are not so obvious.” This is how your boss will justify tearing through your desk and computer in search of any mistake that could possibly justify terminating you. How to deal with this is the next tip…

2. Ask what your boss needs to see from you in order to win their trust back

The directness and honesty of saying this will knock your boss off-balance.  For just a moment, they will think to themselves “Maybe there is a better employee here than I realized…”  You must seize that moment.  Follow up with something like, “I want to show you that I still deserve the trust you once had in me.  What would you like to see from me in order to get that trust back?”

If your boss starts telling you what they want to see, then you’ve won.  That’s because a boss is not going to give an employee a list of goals, and then terminate the employee the next day.  So take careful note of that list that comes pouring out of your boss’s mouth — make sure they are measurable goals, and achieve them.  You will save your job.

BUT, if your boss does not respond with a list of things he or she wants to see from you, then you know your job situation is truly dire.  For example, your boss may say, “I don’t know, let me think on that one.”  Or, “I’m surprised to hear you say that… wish you had said that earlier…” (and then walks away).

So if your boss doesn’t give you a list of things to improve, and continues hassling you about the tiniest aspects of your work, then you know you are one step further down the plank toward termination.  It may be time to consider legal defenses, that do not rely on changing your boss’s mind about you.

Have you had a boss that micro manages your work, hassling you about the tinies aspects of your work?  Tell us about it in the comments section below.

10 Steps of Walking the Plank Toward Termination: STEP 4 Your Boss Switches From Harassing You In-Person to Harassing You In Writing

When your boss goes to Human Resources and asks “Can I fire this employee right now?”, do you know what the H.R. Rep always answers?  H.R. says, “What documentation do you have that shows your employee is not doing their job?”

You know what happens next?  Your boss looks down at his or her own feet, and their face starts turning red.  Then they look back up at the H.R. Person and say something like “Goddamnit, don’t we have at-will employment in this state?!  It used to be if someone didn’t do their job they got fired!  Plain and simple.  How come all you ever say is ‘no’?  Why don’t you ever help us get things done around here, instead of just putting up road blocks all the time?!”

The H.R. Rep responds to this tirade with something like, “I take it you have done no documentation of this employee’s performance? You know, like I taught all the managers to do in that little half day seminar last month?”

“I prefer verbal feedback and coaching.  The more informal type,” your boss says.  He’s referring to the last time he yelled at you.

“Well,” says the H.R. Rep, “did you document in your performance log the date and time of each of these verbal feedback and coaching sessions you had with your employee?”  The H.R. Rep says this with a slight grin, because they know what the answer is.

This is where your boss blurts out something like “F*ck! I’ll get your f*cking documentation,” and then stomps back to your department to start writing an email to you about your performance.  And the H.R. Rep?  This is when they cooly open a notebook and jot down the date and time your boss swore at them and admitted to not doing proper documentation.

Then the H.R. Rep calls a friend who is a H.R. Rep at another company.  They meet at a nearby Starbucks and sip lattes and complain about how everybody at their company hates H.R people.

Really, this is not an exaggeration.  Not at all.  This what happens between managers and H.R. Rep’s every single day, especially know that managers are under pressure to start cutting payrolls and reduce labor costs.

Watch for meetings between your boss and someone from H.R.  If you can see into the office, does your boss appear agitated?  Does the boss leave the meeting and immediately start writing?  And most important, does your boss send you a terse, or even angry letter about your performance soon after your boss met with H.R.?

These are all signs that your boss wants to let you go, and is trying to get it approved by H.R. first.

If you are not in a position to observe what meetings your boss has, and with whom, never fear.  There are other ways to tell.

• Does your boss send you emails, particularly about some aspect of you doing your job, with increased frequency?
• Does your boss send you a written memo about a deadline you missed (probably for good reason) instead of chatting with you and letting you explain?
• Does your boss ask you to sign or initial any memo that has anything to do with your performance, or any project you’ve been working on?

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!

10 Steps of Walking the Plank Toward Termination: Step 1 Your Industry Is Sputtering

Many people have written about “Signs You’re Getting Terminated,” but all those articles miss the natural progression that usually occurs.  These signs don’t appear scatter shot around you like the pellets of a shotgun blast.  No, it’s more ordered than that.  There are a series of steps that occur before you are terminated.  One leads to the next, like the steps of “walking the plank” toward termination and falling into the cold ocean of unemployment.

Through my decade of practicing employment law and through my previous years in human resources, I came to recognize a pattern that almost always occurs, with only slight variations, anytime an employee is fired.

Due to these rough economic times, I’ve added a step at the beginning which is not always there, but certainly increases the likelihood you’ll be terminated if that step is present in your case.  Today we’ll cover that first step, and then in the next 9 days we’ll cover the remaining steps.  Be sure to see if you recognize any of the following elements in your company right now:

1. Your Industry Is Suffering

Is the government bailing out your company?  This is a hard sign to miss.  There’s no way around it.  Terminations and layoffs are coming.  But there are less dramatic, similar signs that you should heed.  Such as:

• Your company or your industry is on the news
• Your company’s competitors are merging
• Top executives are leaving the company “to spend more time with family”
• The Company increases use of outsourcing
• Your Company is being investigated by the government
• All employee perks are suddenly eliminated: no off-site Christmas party this year; approval for travel requires extra steps; or, normal business maintenance is being delayed

Two competing companies will often consider merging when both are suffering financially.  Both companies hope they will have double the customers with less staff.  In other words, half the staff is going be laid off.  I saw this pattern first hand in my pre-lawschool life, when I worked in Human Resources for a big box retailer.

Our company acquired 3 smaller companies while I was working in H.R.; each time we would go in and lay off the corporate staffs of the smaller company we acquired, then add all of their work to our own (already full) work schedule.  This is what Corporate America calls saving money through efficiences of scale, or synergies.

Eventually I began seeing some more of the signs above in our own company.  One top executive left to go to work for a competitor.  There was a rumor that a former female VP was suing the company for gender discrimination.  The traditional blow-out Christmas Party that was held at a posh hotel with spouses invited was toned down to a on-site punch and cake reception the last hour of the work day with no family joining us.  It was obvious the company was hurting.

Then the big news came.  Our company was aquired by an even bigger “big-box” retailer.  H.R. representatives from the bigger company started visiting our corporate headquarters and talking about “efficiencies” and “learning from each other”.  That’s when I left for graduate school.

Only a couple of the many people I knew successfully made the jump to position with the company that acquired us.  Most people scattered to other companies in our area; some started their own business; some moved away in pursuit of jobs with competitors that were located in other states; some people jumped at the chance to take a “early retirement” package the new company offerred.  Most of the people, however, were simply told one day to box up the personal items at their desks and not come back.

I always wondered why those folks didn’t leave sooner.  Why didn’t they make plans to work elsewhere or start something of their own?  Maybe they were intensely loyal people who felt obligated by duty to “go down with the ship”.  But not even the Executives did that.

I think those folks who stayed until the bitter end with no plan for their future could not see the signs.  Maybe loyalty blinded them, sure.  Or even optimism could have dulled their perception of the tell-tale indicators that the company was on its last gasps.

What those folks missed, however, you should be keen to observe.

Today we covered Step One of the “10 Steps Toward Termination”, which is highly relevant to today’s economy, but not required.  Tomorrow we will start exploring the signs of impending termination that are more focused on your relationship with the company and your boss.

Please join me and the other readers of this blog over the next ten days as we explore and discuss the next 9 Steps over the next 9 days.

But before you go, have you seen any of the signs discussed above?  Do you think I’ve left out a sign that other people need to know about?  In the comments section tell me what you think, or about your experiences, and read about the experiences and views of other readers like you.