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Wednesday
Mar222017

Whacky Employment Claims: Who's Whackier? Management or the Employee?

Lawyer for EmployerEmployment Defense

by Nicole Kamm

818.907.3235

 

 

As employment defense attorneys, we see many strange situations arise in the workplace.

The question is, how prepared are you as an employer to handle the wackiness that may potentially arise when your employees make bizarre requests, do odd things, or intentionally violate company rules? And what if those oddball employees happen to be your managers responding to perfectly legitimate claims…?

It's time to illustrate with another Whacky Employee Claims blog. We hope you will find the following employment situations educational, if not entertaining.

 

#5:  Milking Punctuation Errors for All They’re Worth

Seventy-five milk truck drivers in Maine may be getting a $10 million pay day. Three of those drivers filed a class action lawsuit in 2014, claiming Oakhurst Dairy failed to pay them four years of overtime wages.

The problem arose not from a miswritten company policy or employment agreement, but from a state law (known as Exemption F) identifying which employees were exempt from overtime:

“The canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of . . .”

One more comma after “packing for shipment” would have distinguished packing and distributing as separate activities. But as the law is written without the serial or “Oxford comma” as it is sometimes known, the Plaintiffs were able to argue their duties fell outside Maine’s exemption law and they were entitled to overtime pay.

A trial court focused on the spirit of the law, and awarded partial summary judgment to the employer. But an Appellate Court disagreed, stating:

Given that the delivery drivers contend that they engage in neither packing for shipment nor packing for distribution, the District Court erred in granting Oakhurst summary judgment as to the meaning of Exemption F. If the drivers engage only in distribution and not in any of the stand-alone activities that Exemption F covers . . . the drivers fall outside of Exemption F’s scope and thus within the protection of the Maine overtime law.

Employer Tip: You don’t have much say in how state and federal laws are written, but when something seems unclear or ambiguous, consult counsel. Additionally, be ultra-careful in how your company policies and employment agreements are written and stay apprised of frequent changes in employment laws. 

 

#4: Simply Not Suited

Jessica Zelinske was an ad accountant at Charter Communications in Minnesota. She was also very attractive, and when she won a modeling gig to pose for Playboy in a 2011 "Hot Housewives" issue, Zelinske contends she got the “o.k.” from her boss.

Zelinske alleged her supervisor assured her she would not be fired if she posed nude, but once the magazine hit sales racks, she received a “Corrective Action Report” notifying her of her immediate termination. The company informed her: "You have violated Charter's professional conduct policy by making the personal choice to pose nude in a well-known publication."

Zelinske sought $150,000 for emotional distress, compensatory damages and legal expenses.

Employer Tip: Management should be familiar with the implications of all company policies to avoid making promises to employees they can't keep. 

 

#3: The Importance of Being Earnest (in Record-Keeping)

John Sederquist and Brenda White sued employer Steven Miller for unpaid overtime. This bothered Miller immensely because a.) He was pretty sure he paid all of his workers all monies owed on time, and b.) He couldn’t remember ever hiring White. So he did some digging.

Some of his other employees knew White, but no one ever remembered hiring her or actually working with her. But she did appear on his payroll for several months a few years before she jointly filed the lawsuit. For those several months, she was paid over $21,000 for work she never did. Suing for unpaid overtime was just salt in the wage and hour wound.

As it turned out, White and Sederquist were romantically involved. At the time of White’s supposed employment, a coordinator who is currently serving 20 years’ probation for thievery was handling Miller’s payroll. Miller decided to litigate, White cracked under pressure during deposition, and both sides dropped the lawsuit.

Employer Tip: If possible, take steps to enforce some checks and balances when it comes to handling payroll. While litigation can be costly, pursuing a case all the way is sometimes the way to go. 

 

#2: "I Dreamed a Dream" (of not being harassed for my weight)

Laura Ziv filed a $6 million lawsuit against her boss and perfumer employer, alleging verbal assaults regarding her looks, and in particular, her weight. Ziv claims her supervisor compared her to Britain's Got Talent star Susan Boyle, and sometimes called her "Fatty" in front of coworkers. 

Additionally, Ziv claims her supervisor wanted her to develop a competing perfume brand with him, while on company time. When she refused a second time, her supervisor removed her from the company's biggest account and took away a promised bonus. Ziv took a medical leave for high blood pressure and was threatened with termination. She claimed she suffered a brain hemorrhage due to stress.

Employer Tip: Comments regarding an employee’s weight or appearance are generally inappropriate, and could potentially lead to hostile work environment claims. Ensure entire staff knows they may report such incidents to people other than their direct supervisors, and that inappropriate remarks will not be tolerated. 

 

#1: It's a Tough Sell

Think you've heard the last of the Wells Fargo fake accounts scandal? Think again. A class action lawsuit by former employees alleges Wells Fargo fired them for ethical behavior – i.e., for refusing to meet sales quotas by opening bogus additional accounts for bank customers.

Alexander Polonsky and Brian Zaghi represent a class of Wells Fargo current and former employees over the past ten years, who may have been terminated, demoted, or retaliated against for not meeting their sales quotas. They allege employees are pressured into coercing family members and friends to open accounts to meet quotas, and were required to work "beyond a typical work schedule" without compensation – or they were threatened with demotion and termination. Plaintiffs seek $2.6 billion, "and possibly more."

Employer Tip: It is important to “walk the walk.” Comply with the law, and don't encourage or incentivize management or employees to act in violation of the law.

 

Nicole Kamm is a Shareholder in our Employment Practice Group

 

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

 

Wednesday
Mar232016

Amended FEHA Regulations: Employers Required to Update Harassment & Discrimination Policies

Lawyer for EmployerEmployment Defense

 

 

by Nicole Kamm

818.907.3235

 

 

 

The California Fair Employment and Housing Act’s (FEHA) proposed amendments have been approved and go into effect April 1, 2016. All employers should review the regulations and update their policies.

In large part, the amended regulations incorporate and adopt recent changes in the law.  However, the amendments also add a lengthy new section (California Code of Regulations Section 11023) that imposes additional substantive requirements related to harassment and discrimination prevention and correction.

There are extensive changes to the law.  In this blog, we’ll take a look at three primary areas: 

  1. New harassment and discrimination prevention policy requirements
  2. New definitions concerning transgender applicants and employees
  3. Expanded national origin protections for applicants and employees 

Harassment & Discrimination: Mandated Policies & Procedures

FEHA now expressly states, “Employers have an affirmative duty to take reasonable steps to prevent and promptly correct discriminatory and harassing conduct”, §11023(a). Employers further “have an affirmative duty to create a workplace that is free from employment practices prohibited by the Act,” §11023(b).

In addition to distributing the DFEH-185 brochure, employers must develop written policies to prevent and correct harassment, discrimination and retaliation in the workplace.  Among other things, such policies must: 

  • List all current protected categories covered under FEHA;

  • Indicate that the law prohibits coworkers, third parties, supervisors and managers from engaging in prohibited conduct with the employee;

  • Create an employee complaint process to ensure complaints receive:
    • Confidentiality, to the extent possible
    • A timely response
    • Impartial and timely investigations by qualified personnel
    • Documentation and tracking for reasonable progress
    • Options for remedial actions and resolutions
    • Timely closures
    • Provides a complaint mechanism that does not require an employee to complain directly to his or her immediate supervisor

  • Instruct supervisors to report complaints to designated company representatives;

  • Indicate that fair, timely and thorough investigations giving all parties appropriate due process will be conducted, and that reasonable conclusions based on evidence will be reached;

  • State that confidentiality will be kept to the extent possible, but not that the investigation will be completely confidential;

  • Indicate that remedies will be made should misconduct be found in the investigation; and

  • Make clear that employees shall not be exposed to retaliation as a result of lodging a complaint or participating in any workplace investigation.

Employers are further required to ensure employees are aware of these new or updated policies, either by providing printed copies to all employees with an acknowledgment form, sending the policy via email with an acknowledgment return form, posting the policies on a company intranet with a tracking system ensuring employees have read and acknowledged receipt, discussing the policies upon hire, and/or some other method that ensures employees receive and understand the policies.

Further, in any facility or establishment where 10 percent or more of persons speak a language other than English as their spoken language, employers shall translate the policy into every language spoken by at least 10 percent of the workforce.

Defining Terms: Gender-Related Characteristics

Gender Discrimination

While already a protected category, the amended FEHA regulations include definitions for “gender expression,” “gender identity,” and “transgender”: 

  1. Gender Expression: Gender-related appearance or behavior, whether or not stereotypically associated with the person’s sex at birth.

  2. Gender Identity: A person’s identification as male, female, or a gender different from the person’s sex at birth, or transgender.

  3. Sex: Expanded to have the same definition as provided in Government Code §12926, which includes pregnancy, childbirth, medical conditions related to pregnancy, childbirth or breast feeding, gender identity and gender expression.

  4. Sex Stereotypes: Definition now includes an assumption about a person’s appearance or behavior, or ability or inability to perform certain kinds of work based on myth, social expectation or generalization about the individual’s sex.

  5. Transgender: A general term that refers to a person whose gender identity differs from the person’s sex at birth.  A transgender person may or may not have a gender expression that is different from the social expectations of the sex assigned at birth.  A transgender person may or may not identify as “transsexual.”

The amendments include reference to the fact that sexual harassment need not be motivated by sexual desire and “eligible female employees” under the pregnancy disability regulations include transgender employees who are disabled by pregnancy.

Employers should ensure they display an updated poster regarding pregnancy disability leave before April 1st. (See also the new DFEH Transgender FAQ Sheet.)

Expanded National Origin Protections for Applicants & Employees

The FEHA amendments incorporate sections of the California Vehicle Code to expand national origin protections.

Generally, it is unlawful for an employer to discriminate against an applicant or employee who holds or presents a driver’s licenses issued under §12801.9 of the Vehicle Code. 

Additionally, employers may require an applicant or employee to hold or present a driver’s license under the Vehicle Code only if

  1. Possession is required by state or federal law, or
  2. Possession of a driver’s license is required by the employer or other covered entity and is otherwise permitted by law.  

A policy requiring applicants or employees to present or hold a driver’s license may be evidence of a FEHA violation if the policy is not uniformly applied or is inconsistent with legitimate business reasons (i.e., a driver’s license is not needed to perform an essential function of the job).

Employer Takeaway

There is a lot to absorb – the amended Act runs nearly 90 pages with numerous edits and revisions. The key things to remember are these: 

  1. Update your harassment and discrimination policies as soon as possible (you must be compliant by April 1, 2016).
  2. Be aware of the new protections regarding national origin and gender.
  3. Make sure critical policies are in writing, employees read, understand and acknowledge receipt, and supervisors are trained on changes in the law and increasing employer obligations. 

Nicole Kamm is an Employment Defense Attorney

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

Tuesday
Jul212015

Wacky Employee Claims: What Employers Can Learn From Outlandish Situations

Lawyer for EmployerWage and Hour Defense

 

 

by Nicole Kamm
818.907.3235

 

Think you've heard every cautionary workplace tale? Believe it or not, you probably haven't – the real question is, how prepared are you to handle wildly unusual complaints, extreme accommodation requests, and highly awkward situations?

We compiled some of the most interesting recent, real-life scenarios below. Sometimes, the employer acted reasonably, and in other situations, failed miserably. But each case serves as a reminder to employers: When making employment decisions, proceed with caution and advice from counsel. 

 

#4. Religious Discrimination Reeks

Religious discriminationThe Equal Employment Opportunity Commission (EEOC) filed suit against a New York company that forced employees to participate in a religion called "Onionhead." Employees were made to wear Onionhead buttons, dim the lights, join prayer groups and participate in other Onionhead-related activities. Employee resistance was futile, and in three cases led to humiliating treatment and eventual termination.

Employers: Avoid imposing your religious (or non-religious) beliefs on your employees. 

 

#3. Displeasing Prosthetics

An employee who worked for a snack food maker in Pennsylvania was considering gender reassignment surgery. She told a few coworkers about her potential surgery, and also confided that she was wearing a prosthetic penis at work to help her make a decision. The prosthetic was not visible, but one of her coworkers informed management, and the employee was soon fired.

The employee filed a federal civil rights complaint seeking back pay, compensation for suffering and humiliation, and punitive damages.  She claimed a male coworker who underwent hormone treatments and cross-dressed was treated more fairly, and her complaint alleged disparate and discriminatory treatment for being a female, and for being a female who identified as male.

Employers: The EEOC has determined that discrimination based on gender identity is sex discrimination under Title VII of the Civil Rights Act. California also makes it unlawful to discriminate based on gender identity or expression, under the Fair Employment and Housing Act. 

 

#2. Quid Pro Quo Grooming

An employee claimed that her supervisor made several sexual advances to her, and became "biased and angry" when the employee rebuffed those advances. She complained to her supervisor’s supervisor– but during this period the employee herself was written up several times for tardiness and inappropriate dress. Management decided to implement a work performance improvement plan for the employee, and the employee claimed no further discussions regarding her supervisor’s inappropriate behavior took place with upper management.

Then this happened: The supervisor called the employee to his office – the employee assumed it was to have a performance evaluation discussion. However, the supervisor asked the employee to extract an ingrown hair from his chin.  The employee refused. The supervisor then informed the employee that he could have her fired.

Shortly after this incident, the supervisor was instructed to terminate the employee, citing work performance issues observed by members of management.

The employee alleged age discrimination and sexual harassment in her claim brought to a federal court. The district court found that the ingrown hair request was not severe enough to be considered sexual harassment, though an Appellate court disagreed. The case was remanded back to district court.

Employers: Asking employees to perform personal grooming tasks is not appropriate; termination decisions should be based on legitimate business reasons and thoroughly documented. 

 

#1. Popping Positive for GINA Violations

This employer may have flushed over $2M down the sewer.

When management at a grocer's warehouse discovered that someone was defecating in the aisles and on top of canned goods, they immediately became concerned of potential health risks and took drastic action. The company ordered certain employees to submit to cheek swabs so they could identify the DNA of what a district court in Georgia called "The Devious Defecator."

Two employees submitted to the DNA test and were found to not have matching DNA of the defecator.

The employees later filed suit for violations of GINA, the Genetic Information Nondiscrimination Act. The employer contended the cheek swab testing did not provide medical information about the employees, and filed a motion for summary judgment. After losing on summary judgment, a jury awarded the plaintiffs $2.25M ($1.75M in punitive damages).

Employers: GINA clearly states it is "illegal for an employer to request, require, or purchase genetic information" of an employee, even if obtained for arguably reasonable business reasons.

 

What are the lessons learned from the bizarre claims made above? First, employers must be aware of the myriad laws governing the workplace. But more importantly, when these odd situations do come up, know to spot the issue, take proper action, and consult counsel with any questions. You can read more strange employee situations in a previous blog: Wacky Employee Claims.

 

Nicole Kamm is an Employment Defense Attorney. Contact her via email: nkamm@lewitthackman.com or directly by phone: 818-907-3235.

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

LEWITT HACKMAN | 16633 Ventura Boulevard, Eleventh Floor, Encino, California 91436-1865 | 818.990.2120