This month’s roundup is a little different. For one thing, it’s not August anymore. For another, there’s no “they did what?!” case—or, depending on how you look at it, there’s nothing but “they did what?!” cases. Either way, please enjoy this roundup.
In a move that could have major implications for all employers, but especially for us in the staffing business, a bill has been introduced in the U.S. House of Representatives that would make it illegal to ask job applicants if they’ve been convicted of a crime until you’ve made an offer of employment (or in cases where a high level of security is expected).
And so we begin the cavalcade of lawsuits. The first one concerns the Family and Medical Leave Act and centers on tracking time. A former teacher was told he wasn’t eligible for FMLA leave because he’d only worked 1,247 hours the previous year instead of the 1,250 required by the law. However, the employer had no way of tracking time, so they estimated the time he had worked, a tactic that failed the sniff test for a federal appeals court. Lesson: have a concrete way of tracking time.
Also in FMLA country, a rather complicated case involves an employee being fired after an unsatisfactory performance review, but a court ruling that the performance review didn’t take into account the time the employee had spent out on FMLA leave. Takeaway: the time to get tough on an employee is not when they’re getting treatment for a blockage of the heart.
The previous case almost has an air of retaliation about it (“fire the dude who just used his FMLA leave by riding herd on him and making sure he fails”), but this case is pretty clear-cut. Managers at a car dealership singled out four Afghan-American sales employees for verbal abuse and threats, including calling them “terrorists.” The four men reported the remarks, but instead of rectifying the situation, management subjected the men to higher levels of scrutiny and additional harassment. That genius move cost them $400,000. Upshot: If you must verbally abuse employees, don’t retaliate against them when they report the abuse. Better idea: don’t abuse them in the first place!
While we’re in Retaliationville, let’s look at a case against an automotive company where one settlement led to another. The company had been on the receiving end of a class-action lawsuit alleging a sexually hostile work environment. The company settled out of court, and one of their employees was entitled to a portion of the settlement. In a move from the Bonehead Hall of Fame, a manager told the employee that if she took her portion of the settlement, she would no longer have a job there. Not only did she take her share of the settlement, the employee filed a retaliation claim and won, snagging an additional $50,000, the highest amount a company the size of her former employer could be charged. Yeah, maybe these are all “they did what?!” cases.
And the bad behavior isn’t always on the employers’ part. When a Pennsylvania employee was fired for sexual harassment, they filed a grievance with their union. A union arbitrator basically said that the employee in question was a sexual harasser, no doubt, but that the firing was uncalled for and a verbal warning would have sufficed. So the harasser was reinstated. Fortunately, the Pennsylvania Supreme Court struck down the arbitrator’s ruling and allowed the employer to implement the zero-tolerance policy on sexual harassment that they had in the first place.
Why is a zero-tolerance policy so important? Because sexual harassment doesn’t just affect its intended targets. A recent study indicated that people who witness sexual harassment feel the hostility behind it almost as much as its intended victim, and that seeing harassment going unchecked erodes their faith in their employer. Harassment is basically the enemy of a healthy, functioning business. Harassment isn’t limited to sexual advances or verbal abuse, though.
Sometimes it can be as simple as a smell. In a case out of Ohio, an employee discovered she had a major sensitivity to a co-worker’s fragrance. She told her supervisors, but they ignored her complaints, even after she required emergency medical treatment for the sensitivity. What’s worse, her co-workers mocked her sensitivity and started wearing the offending scent on purpose. Her employer wouldn’t let her work from home, and refused to address the scent issue until the employee literally brought in a note from a nurse practitioner. When the inevitable lawsuit happened, a judge refused to throw it out of court as the company requested because of the way the co-workers and supervisors had behaved.
What have we learned? When an employee complains, listen to them, even if you think their claim is groundless. And let your employees know that tormenting a co-worker is never okay. So as we enter another school year, it seems apparent that many folks out there didn’t learn everything they needed to know in kindergarten. Have a great September!