Tuesday, December 21, 2010

It Can Happen Anywhere -- Employees Claiming Hostile Work Environment

Perhaps it's karma or even justice.  The LA Daily Journal (a legal newspaper) reported on December 20, 2010, that an investigator who worked for a plaintiff's law firm filed a lawsuit alleging a hostile work environment.  She claims partners made derogatory comments about women, discussed porn at work, and even took some employees to a strip club after the firm's holiday party.  Allegedly, at the strip club, a partner purchased a lap dance for a co-worker about whom the plaintiff had complained.  The partner told him to imaging the dancer was the plaintiff. 

Of course, the law firm's counsel refuses to litigate the case in the media.  That's a great sound bite!  I'm sure, however, that the case will return to the media's spotlight, absent a settlement with a confidentiality clause. 

So what is important about this case?  A few things.  First, I think this case shows that allegations can be made against any employer.  No one is immune.  Perhaps, in fact, the businesses most likely to be sued are those who think they are above the fray. 

Second, employers must stop the stray comments from taking place at work.  In this case, if the allegations are true, the comments were more than "stray."  Hopefully, most businesses don't have employees with such loose lips.  However, any comment can get an employer in trouble. 

Consider the following scenario:  A supervisor tells a racy joke.  It's not too offensive and no one seems to take offense.  Perhaps over time employees are a little glib with one another and occasionally a racy or dirty joke is shared.  Again, no one seems bothered or offended by the joke.  But then an employee suffers some form of discipline or is otherwise dissatisfied with the job.  What happens then?  (S)he sues, claiming hostile work environment. 

As part of the discovery process in litigation, questions will be asked of both sides regarding sexual banter.  Typically, employer representatives can't remember specific jokes; although they remember occasional racy jokes.  In depositions they say, "Yes, I recall racy jokes in the workplace, but don't have any specific recollection about any of them." 

In contrast, a plaintiff can remember every joke with great detail.  (S)he will claim the jokes are made often and that she was offended.  (S)he never complained, however, because (s)he did not want to risk losing her job. 

Who will the jury believe?  The employees who don't have a recollection of the jokes, other than to admit they occurred, or the plaintiff who describes the jokes and other comments in great detail? 

Third, separate work from personal associations.  In this case, the plaintiff alleges law firm members hit the strip joint after the holiday party.  If true, can the firm argue the activities at the strip joint were unrelated to work?  It will be interesting to see how the facts play out.  But it's not smart to mingle work and personal associations if the activities pursued might lead to a claim of harassment or hostile work environment. 

I know, that kind of stuff doesn't happen at your workplace.  Ha!  It happens all of the time.  I can give you lots of examples of it happening right here in rural, conservative, staid Fresno.  Teach your supervisors and management team to separate personal lives, particularly if it includes strip bars, drinking or other questionable activities, from work. 

Wednesday, November 17, 2010

E-Discovery, The Stray Remarks Doctrine and Reid v. Google

Those of you who attended this morning's Legal Beagle Bagel Breakfast ("LBBB") enjoyed a great training course on the stray remarks doctrine and it's limited use in California courts.  Travis Stokes also discussed the California E-Discovery Rules, and how, between these rules and the court's ruling in Reid v. Google employers must be cautious with e-communications, and also routinely and in good faith destroy email communications. 

Participants of the LBBB wanted Travis to post some materials on this blog that will allow them to provide training to their employees regarding:  (1) The stray remarks in emails; (2) the discovery of electronic information; and (3) what an employer must do to avoid the affects of the court's decision in Reid v. Google.  Travis will comment to this blog with those training materials. 

If you are interested in attending our LBBB training courses, let me know and I will add you to our invitation list.  These are great training opportunities for anyone working in California HR. 

Friday, November 12, 2010

Just when you thought it couldn't get any more strange in CA -- Getting sued for not providing a chair!

Eugina Bright was a cashier at the 99 Cent Only Store.  Turns out she was upset the company did not provide her with a chair.  She claims that the nature of the work reasonably permitted the use of seats.  She complained to the State and notified the employer (undoubtably with the help of a lawyer or union) that a seat should be provided.  The company disagreed and refused to provide that seat. 

So Eugina sued under the CA Private Attorneys General Act of 2004 because she had to stand up at work.  This Act allows employees to seek penalties and attorneys' fees (that's the big kicker!) for violations of the Labor Code.  It sets forth a penalty schedule in certain cases of $100 for each employee per pay period for the initial violation and $200 for each aggrieved employee per pay period for each subsequent violation. 

The Court of Appeal ruled that a violation of "suitable seating" requirement of the Wage Order is a violation of Labor Code section 1198.  This code section states that the the maximum hours of work "and the standard conditions of labor" are established by the Industrial Welfare Commission.  Any employment not in accordance with those standards is unlawful. 

So now Eugina and her lawyers get to move forward with the lawsuit in an effort to show that her position as a cashier reasonably permitted the use of seats.  If she wins, Eugina gets some money and her lawyers will get a lot more.  Under the Act, attorneys' fees appear to be mandatory. 

Yes, it's another typical day in California employment law.  I wonder if an employer has an obligation to construct its facilities, such as the cashier stand, in a way that a cashier could work while sitting.  I also wonder how many customers would be enthusiastic to shop at stores where cashiers were sitting ... and waiting ... for the next in line.  That just doesn't seem to me to be customer friendly.  Perhaps Eugina worked at a store where she was so busy, she never needed to assist customers in any way but to scan their UPC labels. 

Still, I would think the employees had a fairly low interest in me if I found them sitting on the job.  I told my kids growing up to keep their hands out of their pockets while at work.  I told them that they can't do any work with their hands in their pockets, and that even if they could, the boss or customers wouldn't think they were interested in helping out.  I see the sitting thing the same way.  Absent a reason to be sitting (such as an individual with a disability), I'm thinking that the person sitting is lazy and just interested in taking my money before I walk out the door. 

But then, this type of law is what makes CA great for lawyers!  You gotta love it. 

Tuesday, November 9, 2010

When criticizing the boss makes you a protected class

Hand it to a government agency for pursuing an employee's case after she criticized her boss online.  An ambulance service in Connecticut fired an employee after she ridiculed her boss on her Facebook page.  Included in her online rant were vulgarities and a reference to the boss being a psychiatric patient.  The company allegedly fired her for depicting the company in any way on social media.  (The company claims it fired her for a variety of reasons.) 

The National Labor Relations Board ("NLRB") contends that the case is simple and straightforward.  The employee was communicating with others about working conditions.  The employee was upset her boss did not allow a union representative assist her with responding to a customer complaint.  According to the NLRB, this was concerted protected activity, protected under the National Labor Relations Act ("NLRA"). 

This should send a chill up the spine of all employers, public and private.  Employers need to review their social media policies to determine if prohibitions preclude employees from exercising their rights, under the NRLA or California law, to discuss workplace conditions.  Employers also need to examine closely whether they want to terminate an employment relationship due to an employee's online comments. 

My concern is that when employees choose to rant online, it is not necessarily to debate and to discuss working conditions in good faith, but to primarily to punish and ridicule the company.  Does this case mean that employees can say things online that they could not get away with saying to the boss directly or in a room with other employees?  I think most of us would consider such "live" ranting to be insubordinate and unprofessional.  Why should the same ranting and belittling online be protected? 

I hope this case has a positive outcome for employers.  If not, this case could signal a new era in employee relations, and unfairly prevent an employer from maintaining appropriate rules of behavior. 

The case goes to trial on January 25, 2011.

Saturday, October 16, 2010

Company retreats and meetings

I am spending a week enjoying myself at our law firm retreat.  We are in San Francisco, working hard and enjoying the city.
Another law firm has been in the news lately for its retreat.  Allegedly, a lawyer was fired from the firm for refusing to attend a "New Warrior" training retreat.  He claimed the retreat required attendees to describe their intimate encounters.
I don't know what will happen with this lawsuit; however, it made me think.  What goes on at your retreats?  Do you include spouses / significant others?  Or is the retreat limited to company employees?  What activities have the most risk for potential claims?  What do you do to avoid potential claims, including sexual harassment claims, invasion of privacy, or other claims?
Doug Larsen
Fishman, Larsen, Goldring & Zeitler