Legal Alert for Supervisors is the No. 1 source of actionable information to help human resource managers prevent costly lawsuits

It reinforces the message that you deliver to supervisors every day: Improperly managed employees can – and will – sue.

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1. It’s a quick read. Busy supervisors aren’t required to invest lots of time to gain useful ideas.

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The publication features a wealth of issues important to you and your supervisors, including:

  • Hiring and firing
  • Age discrimination
  • Violence
  • Gender discrimination
  • FMLA
  • Privacy
  • Substance abuse
  • ADA
  • Sexual harassment
  • Performance reviews and evaluations
  • Discipline
  • And much more

Each twice-monthly, four page issue of Legal Alert for Supervisors is jam packed with actionable ideas and insights your supervisors can start using right away, including:

  • You Make The Call
  • Legal News for Supervisors
  • Management Tools
  • Legal Developments
  • Supervisor’s Insight
  • Legal Nightmare
  • And much more


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Recent articles found in the
No. 1 source of actionable information
to help supervisors prevent costly lawsuits

Arbitrator tells firm it can’t fire harasser;
does judge agree?

Union claims that verbal reprimand should’ve sufficed

The scenario
A female employee didn’t want one of her male coworkers to be relocated to the work area adjacent to hers. She told her supervisor that the man had been sexually harassing her for months. The coworker had expressed in graphic terms the things he’d like to do to the woman – especially when he attempted to surprise her by hiding under her desk. On another occasion, he’d grabbed her from behind and thrust his body onto her back. The man also had a penchant for rubbing his own genitals while talking to the woman. The supervisor agreed that the conduct was unacceptable. An investigation was launched and the man was fired. He complained to his union. An arbitrator found that the man’s conduct was “extraordinarily perverse.” Despite that, the arbitrator decided that the man should be reinstated and given a verbal reprimand instead.

Legal challenge
The employer sued the union, stating that its decision violated the employer’s zero-tolerance rule on sexual harassment. The union argued that the man’s disturbing behavior ceased after the woman complained, so the situation had been adequately remedied.

The ruling
The employer won. The court ruled that it didn’t have to reinstate the harasser. The arbitrator’s decision rendered the employer powerless to enforce its own zero-tolerance harassment policy, said the court. The court added that employers can’t be denied the power to impose consequences.

The skinny
Strong, swift action is your best bet in cases of confirmed sexual harassment. Talk to HR to determine appropriate next steps based on your policies.

Cite: Philadelphia Housing Authority v. AFSCME, Supreme Crt. of Penna., E.D., No. 15 EAP 2009, 08/21/12.


Did supervisor fire staffer because she needed to care for
aging parents?

Woman claims she was railroaded out before she could ask for FMLA leave

“Fill me in on the situation with Cheryl,” said Supervisor Nathan Hawkins.
“We just got served with a lawsuit,” said Human Resources Director Carolyn Kelliher. “Cheryl is suing us, claiming that we interfered with her rights under FMLA.”
“FMLA?” asked Nathan. “I don’t recall her ever requesting FMLA leave.”
“That’s the kicker,” said Carolyn. “She didn’t.”
“You’re going to have to back up and explain this to me,” said Nathan.

Double whammy
“Sure,” Carolyn said. “Cheryl’s parents are both older and in poor health. Her mother has chronic kidney disease. She lives with Cheryl, and Cheryl pays her bills and cooks for her.
“Cheryl’s father has also been ill for a while,” Carolyn added. “Cheryl sometimes went to doctors’ appointments with him, but usually after work hours. Occasionally she needed time off during the workday, which she was always granted.”
“So what’s the problem?” Nathan wanted to know.
“As you know, Cheryl was put on a performance-improvement plan a few months ago,” said Carolyn.
“Her productivity was way down,” said Nathan. “Her supervisor, Paul, had to do something. But from what I understand, he was pretty lenient with Cheryl’s goals because she’d been with the company so long.”

Family updates
“Paul told me he was aware that Cheryl was under pressure because of her parents’ conditions,” Carolyn said. “They’d had several watercooler chats in which they’d talked about aging parents and the responsibilities involved.
“So when he wrote up her PIP, he specified that she had to achieve half the number of improvement goals he would’ve normally insisted on. Plus, he gave her 60 days instead of the usual 30 days.”
“It sounds like he stuck his neck out for her,” said Nathan.

Not cutting it
“After about 45 days, Cheryl had failed to accomplish a single goal from her PIP,” said Carolyn. “In addition, she had a poor attitude and several customers had complained about her.
“Paul spoke to her about it. Cheryl told him that she was having a hard time focusing on her job because her father had just been diagnosed with an aggressive cancer. She mentioned that she might need to modify her schedule in the future to take him to doctors’ appointments.
“Paul thought it seemed rather pointless to continue with the PIP since Cheryl clearly wasn’t making an effort,” said Carolyn. “So he decided to fire her.
“But before he could tell her, she called and said she had to take her mother to the hospital. That meant Paul had to wait until she returned to terminate her,” Carolyn said.

Suspicious timing?
“Sounds reasonable to me,” said Nathan
“Now Cheryl is saying that the PIP was a smoke screen,” Carolyn explained. “She claims that the timing of her termination proves that Paul fired her so that he wouldn’t have to deal with future FMLA requests related to caring for her parents.”
“She’s conveniently forgetting that she didn’t accomplish any of her work goals,” Nathan said. “We should fight this case.”

Result: The company won.
The court ruled that Cheryl’s FMLA rights weren’t violated.
Reason: She never applied for FMLA. Casual conversations about schedule changes didn’t qualify as official notice of FMLA leave, said the court.

Cite: Nicholson v. Pulte Homes Corp., U.S. Crt. of Appeals 7, No. 11-2238, 8/9/12.


Keep in mind: Many staffers may be unaware of their rights and responsibilities under FMLA.

That lack of knowledge means that people are more likely to claim that their rights were violated – even in cases where people didn’t follow procedures for requesting leave.

That’s why it’s smart to steer people in the right direction as soon as they mention a medical condition – either their own or a family member’s – in relation to time off.

Refer people to the HR department to get more info about how to request FMLA.

Educating staffers about proper procedures will help alleviate gray areas that could eventually fester into costly and time-consuming lawsuits.



Was worker paid less because she was female?

“Linda doesn’t work here anymore,” said Supervisor Jeff Durnell, “yet she’s suing us, saying that it was unfair that Ken was paid more than she was.”
“Linda says that she should’ve been making more than Ken because she was an assistant department supervisor,” said Human Resources Director Josie Mitchell.
“Ken didn’t even have a title,” she added.
“I once overheard her remark to someone that her department was a ‘boys club,’ where the manager tended to favor male employees,” said Jeff.
“I don’t think she found out what Ken was paid until she’d already taken a job with another company,” Josie said. “But I guess it still made her angry.”
“The issue here is whether you can make a fair comparison between Linda’s and Ken’s job duties,” Jeff pointed out.

Apples to oranges
“Linda may have had an important title, but Ken had a lot of very high-level job responsibilities,” she said.
“Both had highly favorable performance reviews,” Jeff remarked. “But Linda was subjected to a more intense review process because of her position,” he said.
“Linda claims her job often called on her to work at home, so it was more demanding than Ken’s job,” Josie said.
“But Ken often had to attend after-hours events, so the number of hours each worked was probably similar,” she added.
“Still, they had very different job duties,” Jeff said. “I think Linda is comparing apples to oranges. It’s not a fair comparison.”
“I agree,” said Josie. “Let’s contest this lawsuit.” Did the company win?

The court’s ruling
No, the company lost. A jury awarded Linda $35,000 in damages. The court compared the two workers’ job duties and found that while they were different in nature, they were essentially equal in importance. The company was unable to point to any legitimate reason why Linda, who had a title, was paid less than her male coworker, who didn’t have a title. It didn’t matter that Linda no longer worked at the company, the court stated. The damage had already been done.

What it means: Look at three key questions
Remaining impartial when determining employees’ pay can be hard, especially when you work with the people every day. Next time you’re looking at pay scales within your department, think about these questions.

1. Do the jobs require equivalent skill and experience levels?
2. Is equal effort needed in both jobs? That is, do people work about the same number of hours? Is the same amount of physical or mental energy required for both jobs?
3. Is there an equal amount of responsibility in both jobs? Consider whether people supervise others or have a high degree of accountability to upper management.

Based on Simpson v. Merchants & Planters Bank.



Nicknames vs. slurs: It can be a fine line

Do your people have nicknames for each other? If so, take it seriously if someone suddenly decides that their moniker is insulting.
Case in point: A Hispanic worker recently sued for racial discrimination because his coworkers referred to him as “monkey.” The taunting began after the dark-skinned, gray-haired employee referred to himself as a “silverback gorilla.” The company tried to get the case thrown out, arguing that there were several other Hispanic employees working there and none of them were called by the name. That meant that the man’s nickname had nothing to do with race. The judge disagreed. He sent the case to be heard by a jury.
Based on Marrero v. R-Way Moving and Storage, Ltd.

Social media: The laws keep coming

Another state has limited employers’ ability to monitor workers’ social media accounts.
California just became the third state to ban employers from asking for employees’ and applicants’ social media passwords. Maryland and Illinois have similar laws in place. Since California is often a bellwether state for laws affecting companies and employees, expect that many other states will follow suit soon.
Your best bet: If you need to monitor social media use, be sure to view only public areas of peoples’ accounts in order to avoid invasion-of-privacy lawsuits.

Could you have an unknown race bias?

Even the most well-meaning people may inadvertently let bias creep into their hiring decisions.
A study conducted by the Massachusetts Institute of Technology and the University of Chicago shows that résumés with Caucasian-sounding names receive 50% more calls for interviews than résumés with traditional African-American-sounding names, even though the candidates have similar qualifications. To avoid lawsuits from this phenomenon, consider covering names on résumés and just looking at qualifications.




How to deal with the inappropriately dressed staffer –
without going to court

Susie is a pretty girl with a nice figure. Problem is, her wardrobe choices for the workplace don’t leave quite enough to the imagination. Granted, it’s a tough situation. You probably need to have a talk with her, but any conversations related to someone’s personal appearance can be extremely uncomfortable. In addition, if Susie feels she’s being singled out and missing out on opportunities because of her appearance, you could have a lawsuit on your hands.

Check the book
Here’s how to handle it. First, check your company handbook to see exactly what your company’s dress code is.
Then, observe the staffer – as well as the rest of the staff – over a few days to see if you notice any violations.
Make a note of any wardrobe choices that aren’t in compliance.

Spread the word
Chances are, more than one worker is breaking the rules. That’s why it’s important to make sure that you deliver the message to everyone, so one person won’t feel like he or she’s being treated unfairly. Have a staff meeting. Hand out copies of the company’s dress code. Ask everyone to read it over right there and to speak up if they have questions.
Note that while things may have gotten a bit lax in the workplace, the company is recommitting to following the dress code. Tell your people you expect them to comply with it.

The last straw
If the worker still doesn’t get the message, it’s time to have a personal chat.State that you’ve noticed he or she hasn’t been following the dress code. Relay that one of the expectations of his or her job is to follow company rules. Then, spell out your company’s progressive discipline procedures and how they will apply to future infractions.



The depressed worker: What you need to know

A staffer tells you that he or she is suffering from depression. What are your first thoughts?
“Is she just making it up?”
“Is he being overly dramatic?”
“Get over it. Everyone gets the blues sometimes.”
The fact is, depression is a real medical condition that affects the brain’s biochemistry. As such, it can cause changes in the way a person performs his or her job. With the recent passage of the ADAAA, you may find yourself having to accommodate this condition at work.

What it means
If any of your people are suffering from depression, consider the following accommodations:
1. Be understanding. The person may be feeling psychologically fragile. Provide positive reinforcement. Allow the person to use the phone to schedule doctors’ appointments. Provide regular breaks.
2. Help the person concentrate. Try to reduce distractions by allowing the person to work in a quieter area or by blocking sound with white noise. Let him or her relocate to a work area with less foot traffic, if possible.
3. Provide gentle reminders. Forgetfulness and disorganization can be hallmarks of the condition. Let the person know you’re happy to help him or her stay on track. Consider providing daily to-do lists, with the priority items marked as such.




Was black female employee demoted because of racial stereotypes?

Supervisor’s take-home: Remember: Demoting or terminating someone who’s in a protected category due to age, race, or gender means that your decisions may come under closer scrutiny. Be sure to have a paper trail to document your reasoning.

What happened: A black female rubbed several of her coworkers the wrong way. She was loud. She used profanity in the workplace. She tended to get in a lot of arguments. Coworkers complained about the woman. Her supervisor met with her to discuss the situation. He told her that people characterized her as “arrogant, hostile, unprofessional and unyielding.” He also pointed out several questionable professional decisions she’d made. She was given the opportunity to improve but failed to do so.
What people did: The woman was demoted to an area with little client and coworker interaction.
Legal challenge: The woman sued, stating that she’d been demoted due to the racial stereotype that black women are opinionated and flamboyant. She pointed to her supervisor’s comments as proof of this. The employer argued that it had legitimate business reasons for the demotion, i.e., the staffer’s poor performance and inability to get along with coworkers.
Result: The employer won. The court ruled that the woman had no proof that her demotion was based on race. In addition, the company had documented evidence of performance issues.
The skinny: Providing workers an opportunity to improve their performance before taking disciplinary action can help show that you didn’t have ulterior motives for your decision.

Cite: Williams v. Los Angeles, Los Angeles County Superior Crt., No. BC411159, 2/28/12.



Firm says Jewish worker responsible for anti-Semitic graffiti,
notes and vandalism

Harassment flourished over several years while a company sat on its hands.

The scenario
Otto May is a Cuban Jew who worked at the Chrysler plant in Belvidere, IL.In 2002, May’s car was vandalized, as were the two rental cars he attempted to use while his was being repaired. Anti-Semitic notes began appearing in his locker and work area. He reported the incidents. Supervisors held an anti-harassment meeting with May’s department. Then graffiti aimed at the “Cuban Jew” began showing up around the plant. It took the company nearly two months to paint over it. May called the police. They suggested the company install surveillance cameras. The company said that wouldn’t be realistic because the plant was too big and doing so would cause friction with the union. The harassment continued for more than three years, with a total of more than 50 incidents. May got notes threatening his life and his family’s. He once arrived at his workstation to find a dead bird outfitted in KKK regalia. He complained and complained and complained. He prepared a list of possible perpetrators. Not a single person was interviewed.

Legal challenge
May sued, stating he’d been subjected to a hostile work environment. The company claimed that since it was unable to determine who the harasser was, there wasn’t much more they could do. It also attempted to state that May had harassed himself.

The ruling
The company lost. May was awarded $709,000 in compensatory damages and $3.5 million in punitive damages. The court admonished the company for doing so little to investigate the matter and then trying to pin the blame on May.

Based on May v. Chrysler.

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