Tuesday, January 29, 2013

The Problem with Working With Problem Employees

I often tell employers to take out a pen and be prepared to take notes.  I tell them that they will hear the most important piece of employment advice I will give them.  Seriously, they take out a pen and note pad.  Then I tell them this --  


The clients then look up at me, somewhat disappointed that my advice was not more profound.  More importantly, many of them don't believe me until a situation arises that could have been avoided if they heeded my advice. 

Why is this advice so important?  Because is stops an employer from taking vain actions to salvage an employment relationship that will never improve.  If the relationship cannot improve, it can only get worse. 

A problem employee is not stupid.  The employee knows that (s)he is struggling in work.  However, (s)he also knows that there are bills to pay, and the loss of a job will be financially devastating.  The problem employee senses that (s)he cannot improve sufficiently to meet the employer's expectation.  But rather than face a job loss, the employee does something to protect his/her employment. 

The typical action I see is an employee who claims (s)he was injured on the job.  Other employees claim "hostile work environment" or "harassment."  Some claim that they have not been paid properly, or that they were not provided meal and rest periods. 

Regardless of the merits of the employee's position, the employee has become "untouchable".  Any action an employer takes after that point will be subject to a claim of retaliation. 

At that point, the employer can fire the employee and risk a lawsuit, wait a sufficient period of time until the "taint" of the event dissipates, or wait until the employee has engaged in egregious action.  Obviously, the options are poor. 

How long must the employer wait?  Who knows?  But in the meantime, the employee has plenty of opportunity to do something else to make his/her position more untouchable and to make your life more miserable. 

Friday, January 25, 2013

Is the Court Putting the Brakes on the NLRB?

President Obama's Administration has actively advanced the union agenda.  One tool used by the Administration has been to make appointments to the National Labor Relations Board (NLRB) while the Senate was in session but not doing business.  Of course, the purpose of taking this action while the Senate was not conducting business is to appoint persons who would otherwise not be confirmed by the Senate. 

Noel Canning, a family-owned enterprise in Washington state was ordered by the NLRB to enter into a collective bargaining agreement with the Teamsters.  Noel Canning challenged the NLRB order by challenging the President's appointment of three pro-union NLRB members. 

The Constitution requires the President to obtain the advice and consent of the Senate when making appointments.  However, the President can make temporary appointments if the Senate is in recess and the term of a person has expired.  In this case, President Obama unilaterally determined that the Senate's decision not to conduct business during a few weeks of the holiday season in 2011-12 constituted a recess, allowing him to make the appointments. 

Noel Canning contends that the Senate was not in recess when the appointments were made.  It claims that because of the invalid appointments, the NLRB did not actually have a quorum with which to do business. 

The Court of Appeal agreed with Noel Canning and invalidated the NLRB appointments.  The Court determined that small breaks in the Senate's schedule did not constitute a "Recess" as that term is used in the Constitution. 

It's a great victory for the Constitution and the principles of separation of powers.  The President has seemed very content to aggressively take action that are constitutionally suspect.  Many of the President's actions are polarizing.  Rather than compromise, he has made the decision to push his agenda forward in spite of opposition by other political leaders and in spite of the language of the Constitution. 

The Noel Canning case is also a great victory for employers.  The impact of the decision could be the voiding of the decisions made by the NLRB since January 4, 2012, the date of the appointments.  This will set back the union agenda and restore some balance to the workplace. 

Read the Court's opinion at:  http://www.cadc.uscourts.gov/internet/opinions.nsf/D13E4C2A7B33B57A85257AFE00556B29/$file/12-1115-1417096.pdf

Tuesday, January 22, 2013

Mandatory Sick Leave -- Paying Employees To Do Nothing (Maybe You Already Do)

The day after our president suggests that government is the answer, I will suggest that in most cases, government is not the answer.  It's an obstacle, a burden, a cost.  Government should be limited.  People should be permitted to succeed or fail based on their industry and hard work. 

in 2009 George Miller, a Democrat from California, introduced legislation that would have required employers to pay employees up to five sick days if the employer sent the employee home due to a contagious illness. 

This week the Philadelphia City Council passed an ordinance requiring employers to pay sick employees to stay home.  The debate is also heating up in NYC, as the flu spreads across the nation. 

It's a matter of "fairness" argue those who seek sick leave benefits.  Of course the person asking for another's money will argue that the taking is done in the name of fairness.  Perhaps. 

But regardless of anyone's definition of fairness, there is the question of paying for it.  Who does?  The owner of the business?  Shareholders?  Other employees who are not sick?  Customers?  In the end, someone must work to pay the cost of those who don't work. 

I'm not sure what all of the answers are in the short run.  I understand that taking time off without pay may be a severe hardship to some families.  However, passing the costs of sick employees to other employees or to the business owner is not necessarily the answer. Eventually, the extra taxes the worker bears will catch up to us as a society.  Productivity and growth will slow, perhaps stop. 

Legislation is not the answer.  It burdens workers.  (Even owners are workers -- often the most hardest working workers.)  It costs money.  It is time-consuming and inefficient. 

In the long run, the answer is for employees to save for themselves and to prepare for a rainy day.  We should take the responsibility for our own conditions and work to improve them.  Many years ago my wife and I started a contingency fund.  We saved a small amount every payday.  After a couple of years, we needed that money when we faced circumstances beyond our control.  The savings paid our bills when a job did not.   

Some worker somewhere will be angry with this idea.  I understand that some people are in difficult circumstances, and will need help from others.  However, I think that most people are able to control their situations and weather five days of the flu and lack of pay.  The answer is personal responsibility and preparation. 

Friday, January 18, 2013

Let's Clear the Air -- Flatulence in the Workplace

The Smoking Gun reported on a Social Security Administration ("SSA") worker in Baltimore who was reprimanded for passing gas in his cubicle.  Apparently this is conduct unbecoming of a federal officer.  (Really, and yet cheating on taxes, lying, and promiscuous activity among elected politicians -- also federal officers -- is not unbecoming?  Go figure.) 

It's a very interesting article.  If you have time, check it out at http://www.thesmokinggun.com/documents/coworkers-attacked-by-gas-645132.  There is even a photo of the portly federal officer with his wife standing next to Pepe Le Pew at an amusement park. 

The SSA kept a log of the worker's flatulence over a two-month period.  The letter of reprimand included the dates and times of his smelly offenses.  (Can you believe that some sucker had to endure the gas and take notes on it as well?)  The reprimand was for unprofessional and discourteous behavior toward co-workers. 

The worker indicated that he would try Gax-X, an over-the-counter medication to help his condition.  He also suggested turning on his fan to dissipate the odor.  Apparently, this was unacceptable to others in the area.  (Those far enough away not to smell the gas, did not want the odors fanned to their cubicles.) 

The SSA has now withdrawn the letter of reprimand.  I don't know whether or not this is because the man is no able to control his outbursts.  Perhaps the SSA is attempting to avoid a lawsuit based on the ADA.  Or perhaps the union was just successful in negotiating the withdrawal of the letter. 

Unfortunately, bad smells coming from a particular person is not an uncommon occurrence.  I have had the situation arise with clients on multiple occasions.  Can an employer do anything about it?  Sure.  The only complication arises when the smell is the result of a disability as opposed to a bad habit.  For example, to the employee who does not shower regularly, a reminder, or reprimand is acceptable.  However, if a medical condition gives rise to a problem, then an employer must also consider reasonable accommodations.  I don't think this means allowing a certain amount of flatulence per hour.  Perhaps measures could be implemented such as more frequent breaks to visit the restroom, an office in the "north 40", communications between the worker and others via telephone or computer, or air fresheners or other devices to eliminate or trap the odor. 

It is never a pleasant experience to confront an employee with a smell problem.  But don't let the problem linger.  Address it quickly.  Get moving quickly on a solution. 

And thank your lucky stars that you do not work for the SSA in Baltimore! 

The information contained in this blog is provided for informational purposes only, and should not be construed as legal advice on any subject matter.  No recipients of content from this site, clients or otherwise, should act or refrain from acting on the basis of any content included in the site without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from an attorney licensed in the recipient’s State. The content of this blog contains general information and may not reflect current legal developments, verdicts, or settlements. Doug Larsen and Fishman, Larsen, Goldring & Zeitler expressly disclaim all liability in respect to actions taken or not taken based on any or all of the contents of this blog.

Wednesday, January 16, 2013

The Perils of PEO's and Similar Organizations

Frank Huljev of Palm Medical Group sent me an interesting article on the health and safety risks of using a contingent workforce to perform dangerous jobs.  The article is based on a study conducted by the Center for Progressive Reform.  In spite of the dubious name of this organization, it raised some very valid points.

Employers hire contingent workers in order to obtain perceived financial benefits.  They believe that by hiring contingent workers they can reduce workers' compensation premiums, and avoid liability for certain claims.  The study found that employers will exploit contingent workers with law wages, long hours and unsafe working conditions.

The study and its findings merit further consideration.

I am not an advocate for PEOs or professional employee organizations.  These are entities that can supply banks of employees as the need requires.  They can also hire your employees and lease them back to you.  You then pay an hourly amount for workers.  The PEO takes care of everything else and promises, among other things, lower work comp premiums.

I don't understand how a PEO can do this assuming it is candid with all of the facts.  If a PEO hires the workers of a particular factory or workplace, the work comp history of the facility goes with it.  Thus, the premiums should not reduce unless the rates are pooled with other workplaces with lower work comp rates.  But if that is the case, the rates of the companies with better work comp histories will rise.  And if the other companies have better work comp rates, why join a PEO anyway?  You see why I think there is some slight of hand?

And an employer won't eliminate liability for other workplace laws.  For example, the company will be a joint employer for claims of unlawful discrimination and harassment.  The company might also increase its liability in the event of a workplace injury.

If you contract with a PEO, I urge you to consider carefully the benefits of the arrangement.  Hiring a contingent workforce may not be the cure for your workplace hassles.  I am not saying that staffing agencies  do not provide a valuable and legitimate service.  Rather, I am suggesting that the promises from a PEO may be illusory.

Friday, January 11, 2013

Suitable Seating -- Another Stupid California Law

Did you know that the California wage orders contains a provision entitled "Seats"?  Have you ever bothered to read it?  Whether or not you have, lawyers have and they think they can make a lot of money on the suitable seating requirement. 

The provision reads:  "All working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats."  So what's wrong with this provision?  It requires seats when it is reasonable to do so.  What kind of standard is that?  Who decides when seating would be reasonable?  What are the factors to consider when determining reasonableness? 

A Kmart in Delano was sued in a class action lawsuit.  The lawyers contended that it was reasonable to permit seating for all cashiers.  Kmart argued that seating would require substantial and unwarranted modification to all of the cashier booths.  In addition, the store argued that cashiers sitting would interfere with prompt and efficient customer service. 

A federal court judge ruled in Kmart's favor ... sort of.  He concluded that Kmart had a legitimate rationale for having cashiers stand.  However, he also said that the plaintiffs' attorney had not sufficiently developed the argument for a lean stool.  What's that?  It's a one-legged stool with a base so that it does not fall over when the seat is unoccupied.  Google it to see a few photos. 

I anticipate that the plaintiffs' attorneys will press forward with other cases for other stores and develop the lean stool argument.  More litigation.  More costs.  Thanks California for making it so difficult to do business in this state. 

What does this mean to you?  If you have positions that could, in your employee's opinion, be done on a seat, you better consider allowing a seat.  You don't want to be the next target for a suitable seating lawsuit. 

Wednesday, January 2, 2013

Hot or Not? Firing An Employee for Being Irresistible!

There has been much publicity about a case in Iowa brought by Melissa Nelson against her former employer James Knight.  Nelson worked as a dental assistant for 10 years for Knight.  Knight admits Nelson was the best dental assistant he employed.  But Knight fired Nelson because he found her irresistibly attractive and a threat to his marriage (a position Mrs. Knight took as well). 

Because of all the hoopla over the case, I looked it up and read it.  The facts are interesting as is the court's opinion -- which I believe is probably the correct opinion based on the law. 

Occasionally during work Knight asked Nelson to avoid wearing clothing that was either too tight, revealing or distracting.  While Nelson disagreed with Knight's assessment, she would put on a lab coat. 

During the last six months of employment Knight and Nelson texted back and forth.  Most texts were mundane and innocuous.  However, the subject matter of a few of them was inappropriate for an employer-employee relationship.  For example, Knight made reference to the bulge in his pants when Nelson wore revealing clothes.  Nelson made a comment about the infrequency of sexual relations with her husband.  And Knight asked Nelson how often she experienced an orgasm.  Stupid emails.  But neither party was offended by the emails. 

Mrs. Knight, who also worked at the office, discovered the text messages and demanded that her husband fire Nelson.  He did, and then replaced Nelson with another female. 

Nelson claimed that the firing violated Title VII, which protects against discrimination based on "sex".  Nelson claimed that but for her sex she would still be employed. 

The court articulated the legal question as follows:  Whether an employee who has not engaged in flirtatious conduct may be lawfully terminated simply because the boss views the employee as an irresistible attraction.  The answer is yes. 

According to the court, Title VII (and probably most state laws prohibiting discrimination based on sex) is not a general fairness law.  Rather, it prohibits discrimination based on an employee's protected status. 

The court concluded that Knight's decision was not based on Nelson's sex or gender.  Rather, the decision was based on his feelings and emotions regarding a specific person.  Those romantic feelings should not be a proxy for gender. 

The court recognized the validity of some of the points raised by Nelson.  For example, she argued that Knight should be held accountable because he fired Nelson to avoid committing sexual harassment.  Moreover, had Mrs. Knight been threatened by multiple female workers, and demanded all be fired, that might constitute a gender-based decision.  But in this case Knight did not make his decision based on Nelson's gender.  He made the decision based on his romantic attraction to her in particular, and due to the effect that attraction could have on his marriage.  Thus, the court concluded that Title VII was not violated. 

So what does this mean?  I have a few ideas: 
1.  Bosses should keep an arms-length relationship with respect to their employees.  Don't be texting either innocuous material or sexually-related material to staff members. 
2.  If dress issues are a concern, consider a uniform of some sort that will avoid issues raised by persons with different tastes or standards in clothing.
3.  Avoid the claim.  Although Dr. Knight won the case, it came at a substantial cost.  He had to pay his lawyer to defend him, including an appeal to the state Supreme Court. 
4.  Make sure you comply with the law and do not make a decision based on a person's inclusion in a protected class. 
5.   Finally, don't think your good looks will keep you employed.