Some Quick Thoughts on Janus

As an escaped Illinois resident, I have followed the Janus case fairly closely. Public employee unions in Illinois wield a tremendous amount of power, by virtue of their ability to direct huge amounts of money to sympathetic politicians (specifically, Democrat politicians) and through their ability to mobilize large groups of voters who are essentially in lockstep with the union's opinions. So I welcome the Supreme Court's decision in Janus, although I think there should be some way to deal with the free rider problem identified by the dissent.

What I think Janus will do, however, is sharpen and clarify the unhealthy relationships between public employee unions and their political managers, whom they elect and sponsor through campaign contributions. Specifically, I think a fairly straightforward and obvious way around the Janus ruling is for state and local governments to pay unions directly for their representation services, and reduce their employees' compensation by an offsetting amount. I don't believe this would be illegal, and it would greatly facilitate the identification and influence of unions on local political operations.

Imagine, for example, the political capital that would have to be spent to support a bill that reduced state employee wages in order to make a direct payment to a union for collective bargaining. Also imagine the impact on the union, which would, theoretically at least, have to account for its spending of that money as a government contractor providing services to a local polity.

Better minds than mine have looked at this issue and thought it through, although I think I'm the first to raise the government contractor disclosure issue. In any event, Janus will not be a panacea for those opposed to public unions, but it might well give people more insight into the corrupting influence of their political contributions.

UPDATE:  Nice analysis here, and here.

Work Ghosting

Apparently social media practices, and in particular social media practices that relate to dating, are starting to spill over into the workplace. As a labor shortage becomes more pronounced and there are presumably multiple job offers for available employees, it's becoming increasingly common for hiring managers to experience the practice of "ghosting".

Ghosting occurs when the person with whom you have been holding regular and frequent communications simply drops off the air. The person doesn't respond to emails, texts, social media messaging, IMs, posts, anything. It's like they've vanished from the world, or at least the digital world.

This is a very real thing among people who are dating, or even in serious relationships. One of the most entertaining Ask a Manager vignettes I've ever read involved a guy who simply walked out on his live-in girlfriend of two years when she was on vacation and never returned or made contact with her. What made the story particularly interesting is that he was working a job several years later, only to discover that his ghosted ex was about to come back into his life as his new boss. You can read about it here, and the follow-up here.

In any event, there's not much an employer can do when someone that you were pursuing simply decides you aren't worth the effort. It's bad form, and burns bridges that people shouldn't be burning, but these are typically immature workers, after all. To expect them to look down the road past their next job might be too much at this point. But it would be nice if someone would sit down with these people and explain to them that it really is a small world, and the ghost they just created might come back to be the ghost in their machine in some future role.

Leaning Out-- The Impact of Motherhood and Choice on Women Graduates of Elite Institutions

A number of interesting studies are starting to surface with respect to how men and women enter, stay and leave the workforce. For example, it seems that the more economic freedom women have within a culture, the more likely they are to gravitate to fields that are less STEM-related. A number of studies also show the dramatic impact that childbirth and childrearing have on women's careers and career choices.

A very recent paper published here discusses the difference between women who graduate from elite academic institutions and those who do not in terms of employment choices. The data reflected in this study shows that women with an elite academic background remain employed at approximately the same rates as their counterparts from less esteemed institutions until they have children. "… The presence of children is associated with far lower labor market activity among married elite graduates." This is true even though elite graduates are much more likely to earn advanced degrees, marry at later ages, and have higher expected earnings. Interestingly enough, the largest gap in labor market activity is between elite and less selective female graduates with MBAs--married mothers who are graduates of elite institutions are 30 percentage points less likely to be employed full-time than graduates of less selective institutions.

UPDATE:  Here's an article referencing a Duke study on the effects of "leaning in", and whether systemic issues make it counter-productive for women to address gender perceptions.  Depressing findings, if accurate.

The Limits of #MeToo-ism

I'm always interested in the intersection and overlap between military law and civilian statutes. So much of military jurisprudence involves what are normal employment decisions in the civilian sector. As the #MeToo wave sweeps across our culture, its impact on the military raises some interesting constitutional issues, as well as demonstrating the limits of the application of civilian legal concepts to military organizations.

Such is the case of Jane Doe v. Lieut. General Franklin Hagenbeck and Brig. Gen. William Rapp. The generals were, respectively, the Superintendent and Commandant of the United States Military Academy at West Point. The Jane Doe (and I am curious as to why a civil plaintiff is allowed to proceed under a pseudonym, even in this type of case) is a former cadet at USMA who alleges she was sexually assaulted there.

Doe alleges that she was raped in the spring of 2010. After she reported the assault to a psychiatrist, she was referred to USMA's sexual assault response counselor. Under the bizarre rules for service academy sexual assault reporting, she elected to file a restricted report, which preserved her identity as well as that of her attacker.

As an aside, this option is problematic. Officers have an obligation, legally and ethically, to report criminal conduct as they become aware of it. Doe should not have been allowed to shield the identity of her attacker, who presumably posed a threat to other women in the Corps of Cadets.  Moreover, her unwillingness to allow a criminal investigation against her attacker, at least in my opinion, significantly undercuts the viability of the civil case that she filed three years later.

Instead of suing the cadet who assaulted her, Doe pressed forward with a suit against the Commandant and Superintendent on the theory that they had allowed some type of atmosphere promoting sexual assault (dare I say "rape culture"?) to pervade the Academy. The actual grounds for the lawsuit were a violation of her constitutional rights for due process and equal protection under the well-known Bivens standard, as well as a claim of for breach of the covenant of good faith and fair dealing against the United States and a federal tort claims act claim alleging negligent supervision, training, and several other counts.

I'll dispense with the District Court ruling and move directly to how the Second Circuit handled this. It is a fundamental principle of American jurisprudence that the courts keep their hands off the military with respect to military discipline and command structure. In cases where, as the Second Circuit noted, a plaintiff seeks to hold her superiors personally liable for money damages in connection with their decisions regarding the training, supervision, discipline, education, and command of service personnel at West Point, a court should avoid hearing the matter absent a clear Congressional authorization.  Although the dissent here tried to characterize West Point as an educational institution rather than a military base--an argument that was as silly as it was factually unsupported--the Court dismissed Doe's claims.

Sexual assault in the military has gained a high profile in the last 25 years or so. But there is a separate system of military courts and process to deal with these issues that factors in necessary and uniquely military considerations. Notwithstanding the cultural avalanche embodied in the #MeToo
movement, its application to the military is and should be extremely limited. Based on this decision, and a host of others, courts will not prove receptive to claims alleging a culture of depravity that facilitates sexual assault in a military unit.

Employment Application Hell

Imagine that you are a talented musician who applies for and wins an extremely competitive scholarship to study with the music teacher of your dreams. At the end of your course of study, you are virtually guaranteed a well-paid and secure position in the music industry. The scholarship is the payoff for years of practice, effort, planning, and sacrifice.

Except that you don't know that you actually won the scholarship. You don't know because your significant other girlfriend has been monitoring your email, and, because she does not want you to move away, deletes the scholarship award email, creates a phony email from the scholarship committee to you indicating you did not get the scholarship, and then sends another phony email back to the scholarship committee telling them that you are rejecting its offer.

You don't find out until you run into the music teacher much later.

And that's what happened here.  Unbelievable and horrible.  And worth $350K in a court judgment.

Email security is a thing, people.  Even with people you "trust."

Tough Standards for Equal Pay Act Cases

Here's another Equal Pay Act case, this time on the East Coast. These decisions are noteworthy for a couple of reasons. They provide an extremely problematic avenue for employers dealing with differential compensation claims based on gender because intent is not a factor. Moreover, they are rarely covered by employment practices liability insurance.

Once an EPA plaintiff establishes a prima facie case of discrimination by demonstrating that an employer paid different wages to a woman for comparable work on jobs requiring equal skill, effort and responsibility, which are performed under similar working conditions, then discrimination is presumed. To defend a prima facie case, an employer must show one of four applicable affirmative defenses. Those defenses are a seniority system, a merit system, a pay system based on quantity or quality of output, or disparity based on any factor other than gender.


In this case, EEOC v. Maryland Insurance Administration, the defendant was a state agency. Like most states, Maryland provides its employees with a complete and comprehensive merit pay and seniority system in place to set starting pay rates, in particular with regard to employees who already have time working for the Maryland state government.

It would be hard to imagine a system with more protections in it for employees.

Nevertheless, the EEOC sued under the Equal Pay Act, alleging that three female employees were paid less than their male comparators and that there was no valid basis to do so. The district court awarded summary judgment to the state, but the Fourth Circuit Court of Appeals reversed.

Here are the crucial takeaways. The Fourth Circuit agreed with the Third and Tenth Circuits that the language of the EPA requires an employer to submit evidence from which a reasonable factfinder could conclude not simply that the employer's reasons likely could explain the wage disparity, but that the offered reasons actually explained the wage disparity.

Think about that. As an employer in an EPA case, you have to put on evidence at the summary judgment stage that convinces the court that what you are saying is not just likely true, but actually true. Or in the court's words, "Once the plaintiff establishes a prima facie case the employer will not prevail at the summary judgment stage unless the employer proves its affirmative defense so convincingly that a rational jury could not have reached a contrary conclusion."

The fact that other male employees performed substantially identical work but made less money than the plaintiffs did not affect the outcome. An EPA plaintiff is not required to demonstrate that men as a class are paid higher than women as a class but only that there is discrimination in pay against one employee with respect to compensation of another employee of the opposite sex.

Moreover, it appears from the decision that the EEOC was not required to put on any evidence disputing unequal application or inconsistent application of the state's pay system. The fact that the employer exercised slight discretion each time it assigned a new hire to a specific step in the salary range, based on its review of the hire's qualifications and experience, means that a jury could believe that the assignment was based at least in part on gender. Again, there was no evidence of this in the record; this was just the court saying such a scenario was possible.

So how does an employer defeat this kind of standard? The court noted the absence of contemporaneous evidence showing that the decisions to award the plaintiffs their respective starting salaries were in fact made pursuant to their qualifications. Although there was some contemporaneous evidence regarding one individual hiring it was not sufficient to eliminate the mere possibility that some other factor could be in place. Specifically, an official recommended that one of the comparators be hired at a higher starting salary than the typical employee because of his prior experience, but that was not evidence showing that the decision setting the salary was actually made on that basis.

What does this mean? If you don't have contemporaneous evidence in the form of written records or very credible witness testimony that the employment decision at issue was actually made based on the factors you say it was, you cannot carry your burden on summary judgment. It reinforces dramatically the requirement for accurate and credible record-keeping with respect to employment decisions concerning compensation. It adds a further burden to employers on hiring and promotion decisions and opens the door to wage challenges that will be expensive to defend and to settle.

I will keep an ear to the ground to see if any more of these kinds of cases surface, but this kind of a standard creates potential problems for all employers.

Get Your Story Straight

Jeremy Schrag, a partner in our Wichita office, sent me the following synopsis of a 10th Circuit decision that reminds us that termination reasons should be legitimate, nondiscriminatory, easily explainable, and unchanging.  In Fassbender v. Correct Care Sols., LLC, the  Court sent a case back for a jury trial because the employer’s reasons for termination kept changing.

The plaintiff worked as a medication aide for a company that provided medical services at prisons throughout the country.  After learning that she was pregnant, her supervisor reportedly made statements such as “are you kidding me? . . . I don’t know how I’m going to be able to handle all of these people being pregnant at once.  I have too many pregnant workers.  I don’t know what I am going to do with them all.”

Important Practice Tip: while it's understandable that a supervisor faced with significant long-term attendance issues in his female staff because of pregnancy might be frustrated, expressing it in such a manner is not advisable.

During one of her prison visits, the plaintiff received a note from an inmate indicating he knew personal information about her and wanted a sexual liaison with her. She took the note home and waited more than 24 hours before telling her supervisor about the incident, in violation of company policy that such activities be immediately reported. The following day another inmate left a note on her cart; she immediately reported this event.

The next day the company terminated her employment. And then the fun, or, depending on your point of view, the obfuscation, started. The plaintiff was initially told she was terminated because she violated the company's fraternization policy. Then someone told her it was because of the "severity" of her offense. Confused, she went to human resources which told her she was fired because she failed to report the first note immediately. An internal memorandum indicated she was fired because she failed to timely report the note, and took the note home. After the plaintiff filed an EEOC charge, the company said she was terminated because she failed to report the inmate's note to her supervisor, she did not report the incident the same day, and she discussed personal matters either with the inmate or within earshot of him. Finally, in a summary judgment motion, the company indicated that it fired the plaintiff solely because she took the inmate note home with her in violation of the fraternization policy.

One of the easiest ways to lose an employment case is to have multiple reasons for an adverse employment action, expressed at various points in the termination/litigation process. The fact that the company could not get its story straight meant that there was an issue of fact as to why it actually fired the plaintiff. Multiple, inconsistent reasons for termination are frequently seen by the courts, and juries, as a smokescreen to hide the real reason for firing, in this case, pregnancy.  Which is exactly how the Tenth Circuit saw things. It reversed summary judgment for the company and sent the case back to trial.

The Fassbender opinion is a reminder to employers to stay consistent and to not nitpick the reasons for termination. Termination reasons should be easily explainable.  If you cannot explain why the employee deserves to be terminated in two to three sentences, you may need to reconsider your decision. While a poorly explained termination reason may get an employer into trouble down the road, a changing termination reason will almost always result in a jury trial. 

Fun In Drug Testing Land

File this one under "You Can't Make This Stuff Up".  A young woman was arrested in a Denver suburb for contaminating a 7-Eleven microwave (and think about how difficult that is), apparently with urine. At first read, I wondered about the physical impossibility of doing something like this, but then realized that the urine had been in a container. When the potential employee (because that's what she was) put the urine container in the microwave and heated it, it had either boiled over or exploded. This event, not to mention the smell, did not escape the eyes/nose of the watchful 7-11 clerk, who alerted police after the woman refused to clean the mess.

Why on earth was someone heating urine in a microwave? Well, if you are going to substitute a benign urine sample for your own at a drug test lab, you need to warm the substituted sample to near body temperature.  The now-defendant was on her way to a drug testing lab as part of an employment application process. I suspect her employer will regard this as a disqualifying event.

Thank heavens she was apprehended.

Why Employment Lawyers Will Always Have Jobs, or, You Can't Make This Stuff Up

Seriously.

Thanks to Ask a Manager, who always provides interesting anecdotes.

A Distressing Interpretation of the Equal Pay Act

The old saying in law school is that "bad facts make bad law." On bad facts, the Ninth Circuit has issued a puzzling decision on the Equal Pay Act that will have sweeping consequences throughout California, Oregon Washington and the West.

The case, Rizo v. Yovino, et al.,  involves an admittedly foolish payroll practice in the Fresno County Public schools. Instead of evaluating new hires on the basis of their credentials and past work experience, the County determines a new hire's compensation based on her prior salary in her previous job, adding 5%, and then placing the new employee in the corresponding step of the County salary schedule. This procedure is applied even to employees who were formerly working outside of Fresno County, as was the plaintiff in this case. When she applied for a job in Fresno County, Ms. Rizo received a 5% bump up from her $50,000 salary in Arizona, and then was placed on Step One of the hiring schedule. When she realized that she was being paid significantly less than her male coworkers (who joined the county from positions that paid more) for exactly the same work, she sued under the EPA.

The majority opinion starts out with a remarkably dated assertion that something called the "gender pay gap" is a discriminatory reality that needs to be addressed through the EPA. Of course, modern research has conclusively demonstrated that the gender pay gap is not the result of discrimination, but almost completely the result of life and career choices that result in lower compensation in general for women across all occupations. Nevertheless, and ignoring the fact that the gap represents the result of countless business decisions based on such things as time spent working, time spent in the workforce, occupational choice, and educational degree, the Court determined that this is precisely the type of thing covered by the EPA. The court accordingly ruled that consideration of compensation history is a sex-based decision prohibited by the EPA. Not just prohibited when it is the sole basis for a compensation decision, as it was in Fresno County, but prohibited in any form, and when used in conjunction with any other non-sex-related factors.

The Equal Pay Act straightforwardly says that men and women working in the same jobs should be paid the same unless the differences in compensation are based on factors other than those related to sex. Typically, differential factors have included the types of things that businesses use to measure value of an employee-advanced degrees, educational level, job skills, experience, etc.  In this context, compensation history for an individual competing for a particular job is a fairly straightforward measure of the market value of that individual's qualifications. The idea that an economy-wide "gender gap" which is not based on discrimination, but a host of other factors, should provide the basis for such a wide-ranging decision excluding past economic compensation from a hiring decision is ludicrous. But the Ninth Circuit has, as we say in the business, drunk the Kool-Aid of political correctness and the unassailable victim status of women in this economy.

As the concurring opinions point out, the Court majority ignores the fact that compensation history is a highly individualized aspect of a person's employment qualifications. An employer is not hiring a generic woman with a $.20 per hour shortfall in her wage-earning history measured against her male cohort. An employer is hiring an individual, with job qualifications and a work history unique to her. Among those qualifications is the assessment of the value of her skills by previous employers, as indicated by her wage history. Invalidating any inquiry into that based on such a sloppy analysis is cause for alarm.

So what does this decision mean for employers? Well, in the Ninth Circuit, it makes it illegal to ask any questions related to employment compensation history. To the extent employers are asking such questions, they should stop, now. Of course, liability does not attach as a result of asking such questions, but only if such questions are accompanied by differences in pay scale between men and women performing the same job. But such differentials are not uncommon given varying qualifications and experience levels; for now, any reference or use of compensation history in the original hiring decision will create strict liability for an employer.

The Gender Wage Gap

Most people following the trends in men's and women's average wages know that the roughly 20% difference between men and women is attributable to a variety of factors. Discrimination is almost certainly one factor, but it appears not to be the most important, or even a significant one.

A number of studies have demonstrated this, and a recent article from City Journal does a nice job reviewing the state of the research.

The short answer-it appears that innate gender differences, based on either biology, culture, or something else, are driving the train with respect to average wage issues. Looming large in the discussion, of course, is childbirth/rearing, which cuts across countries and cultures in terms of its impact on women's wage earning.

The article and the studies cited in it are well worth reviewing.

How far can an employee go in removing employer documents to prove a case?

An important part of the decision in Erhart v. BofI Holding, Inc. relates to an issue that we occasionally confront in employment practice cases, namely what happens when an employee steals confidential documents to use in his lawsuit against the company?

The issue is more complicated than it seems.  The American Bar Association standards (Rule 8.4 and Rule 3.4) prohibit the use of evidence that has been wrongfully appropriated by a witness or a party.  That would seem to argue against making use of documents stolen from an employer by a potential plaintiff.  On the other hand, there is a societal interest in promoting whistleblowing to ferret out corporate wrongdoing, and frequently the best evidence of the wrongdoing is contained in a company's computer files or documentation.

That was the issue confronting the federal court in this case.  The judge issued a fairly interesting ruling that splits the baby neatly.  The court ruled that the public policy in favor of whistleblower protection outweighs the interest in the enforcement of a nondisclosure agreement or even corporate nondisclosure policies.  But not completely.  A whistleblower may not appropriate wholesale a company’s files or information.  Instead, the court noted that because Erhart in this case took only files that were related to his claims, he would still operate under the protection of the court’s ruling.  Had Ehrhardt vacuumed up the entire contents of a disk drive randomly, the court likely would have sustained the counterclaims against him for breach of contract, breach of fiduciary duty, and trade secret violations.

Accordingly, if you're going to take your employer's documents with you when you leave, don't pull down everything you can carry; remove only the things related to the alleged wrongdoing."Pigs get fed, hogs get slaughtered."

Encino Men (and Women) Can't Be Overtimed

A recent Supreme Court case provides us with a couple of noteworthy points, one of which is not new but interesting and the other which is both.  In Encino Motorcars LLC v. Navarro et al., confronted the Court with an issue that it had visited once before, namely whether so-called "service advisors" for automobile dealerships were exempt from overtime requirements under a narrow regulation of the Fair Labor Standards Act. 

The statute exempts from overtime pay requirements "any salesman, parts man or mechanic primarily engaged in selling or servicing automobiles, trucks, or farm implements…"  Service advisors are usually the first people you encounter when you come into an automobile dealership.  They intake the car, record the customer's issues for service/repair, and generally act as an ombudsman in the event that there is some type of problem with the process.  Several of these service advisors claimed they were in fact nonexempt employees and entitled to overtime pay. 

The employer won the initial round at the District Court but the Ninth Circuit Court of Appeals reversed, finding that the advisors were entitled to overtime under a 2011 regulatory interpretation by the Department of Labor.  When the dealership appealed to the Supreme Court, the Court reversed and returned the case to the Ninth Circuit, saying that the DOL interpretation was flawed and invalid.  Undeterred, and not taking the hint, the Ninth Circuit again reversed the District Court, finding that the service advisors were nonexempt because they were not mentioned in the statutory exemption of the Act.

Again the dealership appealed.

The second time around the Court didn't mince any words with the Ninth Circuit, reversing it cleanly and determining that service advisors were encompassed by the plain language of the statute.

So the interesting but not surprising part of this decision is that the Ninth Circuit was again reversed by the Supreme Court.  The Ninth Circuit makes a practice of being reversed, and it's always gratifying to see some consistency in federal court decisions.

The interesting and novel proposition in the decision is in a relatively short section of the Opinion in which the majority rejects the idea that exemptions to the FLSA should be construed "narrowly".  Instead, the Court noted that courts supporting a narrow reading of these exemptions are mistakenly interpreting the FLSA.  The Court said that rather than using a narrow construction, courts should make a "fair reading" of FLSA exemptions, construing their meaning in a common sense type of way, rather than the overly restrictive Ninth Circuit analysis.

This latter holding is of particular interest to those of us who worry about how the statutory exemptions of the FLSA, and there are more than two dozen of them, are to be applied.  Interpreting them in a moderate and common sense way should make it easier for employers and plaintiffs’  lawyers alike to measure their cases effectively.

One of the Greatest HR Twitter Threads Ever

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Warning--some bad language below.

Thread by @zaktoscani: "Co-worker got his lunch stolen and they’ve agreed to let him watch the security camera tape. This is the most excited I’ve ever been at any […]"

20 tweets a day ago

Embed Zak Toscani @zaktoscaniFollow Read on Twitter

Co-worker got his lunch stolen and they’ve agreed to let him watch the security camera tape. This is the most excited I’ve ever been at any job ever. Ever.

The lunch in question was shrimp fried rice which means this escalates from a misdemeanor to felony no doubt

Case facts:
Lunch was in fridge for less than an hour before it vanished. No shrimp smell remnants in the microwave or kitchen area. This was a professional hit no doubt

HOLY SHIT. He’s back. He watched the tape. He knows who did it.

So the man who’s lunch was stolen sits across from me. The person who stole his lunch sits RIGHT NEXT TO ME! She left for the day before the investigation started

According to the video, this psychopath DIDNT EVEN EAT THE FOOD. She took it out of the fridge and threw and buried it in the trash

Her motives remain completely unknown. In lieu of what he saw on the tape he has decided to not to press the matter anymore. I can’t say I blame him. We don’t know what this women’s fully capable of

Points to clarify: he bought the shrimp fried rice around 11:30am (carry out) and put it in the fridge to chill until he takes lunch at noon. So she had exactly a 30min window of time to do what she did. There was no intention of microwaving the food

Update: Ok so when dude watched the video with HR they asked “what do you want to do about it?” he told them he was solely interested in who did it and that he didn’t want to be responsible for someone getting fired

After charges were dropped, HR sent a company wide email about not stealing people’s lunches. She is scheduled to arrive at work in 20min. My blood is on cocaine

She has walked into the room. And the room is dead silent. Dead fucking silent yet there is a palpable explosive energy pulsing through everyone but her

From the moment she walked in, I’ve just been staring at her. Watched her open her email and now she clicked on the goddamn HR email! Holy fuck strap in - here we go!

I can’t move. I simply cannot move, anything could happen right now

!!!! After seeing the HR email she says out loud “woah. Someone stole a lunch? Who would do something like that?” !!! I may have to run out of this room

After she said that, shrimp guy responds “well yea it’s not ok to throw someone’s food away” we’re all about to start screaming

This shits about to get crazier. After he says that she goes “oh it was your lunch?” BEAT she continues “well why would you go to HR about that?!”

She has simultaneously denied her involvement AND called the guy who saved her job a snitch!!!!!!!!!

Dude just sighed and went back to work after she said what she said. She looks frighteningly calm

I’ll keep updating if anything else occurs but all I can say is that EVERYONE in the office from the janitor to the founder knows what she did. She now carries an invisible scarlet letter.
Unbeknownst to the guy and the woman, I just ordered 3 shrimp fried rice plates for lunch and will be hand delivering them.


https://twitter.com/mims/status/979765018580475904

This is real. This is happening. We know who did it but we don’t know why. It’s a post production company so we’re in fact open today. She’s been sitting 3ft from me this whole timephttps://twitter.com/threadreaderapp/status/979772705904975873s://twitter.com/threadreaderapp/status/979772705904975873

Towards an Effective Sexual-Harassment Training Program

I despise sexual-harassment training. At least, I despise the kind of training to which I've been subjected and to which most of my clients workforces are subjected. You know what I mean-the boring recitation of legal standards followed by a review of the company policy stating don't do this/that/or the other thing, and if someone does it to you, here's whom to call.

For number of years, I've maintained that companies should ditch this type of universal sexual-harassment training and instead use it as a disciplinary tool. "If you send one more inappropriate email over the company server, you're going to spend three hours in sexual-harassment training." My guess is that such a practice would stop more harassment than what we do now across our workspaces.

For it's no secret that sexual-harassment training generally is ineffective. The EEOC knows it, its people have studied it, but it will probably take them another generation (based on their case processing times) to come up with any kind of remedial suggestions. So, in a burst of immodesty, let me offer a teaching paradigm that might prove helpful.

People dealing with sexual harassment in the workplace-victims, observers, human resource professionals on the receiving end of the complaint-are not approaching the issue from a perspective of what is legal, what can be proved, or how it fits within the world of Title VII or some state law analog. They are not asking whether the harassment is quid pro quo or hostile work environment. What people confronted with sexual-harassment are trying to do is solve a problem, a problem of a bad employee, customer or manager acting outside business norms or even societal norms for personal conduct. Most sexual-harassment training does not come at this problem solving directly, but only tangentially. We don't approach the issue the way somebody in the workforce does, namely, in a way that looks for means to stop the conduct.

And so when I train on sexual-harassment in the workplace, my focus is on how a line employee, manager, or a human resources professional can deal with the problem conduct. The legal definitions, recognizing sexual-harassment, company policies, all get wrapped up in the problem-solving angle.  but the problem solving remains the focus. Typically I do this through a series of scenarios that are tailored to the work environment of the company. Is it predominantly female? Then I describe settings and interactions more familiar to women. Is it a manufacturing operation or an office environment? That drives the likely problems and possible solutions.

These solutions are not couched in legalese or evidence-based language, but rather in commonplace terms that show a logical connection between cause and effect and cause and solution. Because they focus on things like workplace culture rather than legal analysis, this way of solving problems is generally more memorable and effective at the same time.

So, for example, a response to an employee having a scantily clad picture of her spouse on her desk is not approached as a hostile work environment issue, but rather as a professional workplace issue. Telling someone that the office is not an appropriate place for what amounts to soft core pornography is an easier solution to conceptualize-because it makes sense-than an analysis of who might be offended and why after seeing the picture. Similarly, advising employees on how to respond to bullying conduct-by telling the bully things like, "This office doesn't work that way", "Did you really mean to say that?", "I don't think you thought about what you were going to say before you said it", "I don't want to be treated like that and I'm pretty sure no one else does either", can be an effective way of defusing bully behavior at an initial level, before it escalates into a harassment problem. Sketching out possible approaches to human resources when making a report also is effective. Conducting a make-believe dialogue between the reporting employee and the human resources director, in my experience, works to ease the awkwardness that most employees feel when talking to HR.

Rather than trying to make pseudo-lawyers of our workforces, we should be addressing human resource issues like this for what they are-problems seeking solutions. Our presentations should provide solutions, first and foremost. The rest of the high concept training will take care of itself.

Chicago Legal Process

A recent ruling from Cook County Circuit Court demonstrates why litigating there is such a problem, especially for out-of-state parties.

In a case involving a Chicago Cubs fan who was struck in the face by an errant foul ball, there were two defendants-Major League Baseball and the Chicago Cubs. Even though there is a state law on point that specifically exempts MLB and its clubs from liability in precisely these circumstances, the judge ruled from the bench that while the local Cubs organization could be dismissed from the case, MLB could not.

Hometowned, anyone? Although in fairness, the Cubs may get dragged back in via an amendment.

Moreover, the court's handwritten order demonstrates another wonderful feature of Cook County practice. Because the clerk of court there has been inexcusably slow in implementing electronic filing and record-keeping (because shuffling paper requires a lot more employees, which means a lot more patronage, which apparently means a lot more donations to the clerk's private campaign fund), court orders are handwritten by the attorneys involved, using actual sheets of carbon paper. Yes, that's right, a reproduction technology that went out in the 1980s is still in daily use in Cook County courts.

It's a great place to litigate.

Drug testing on the Way Out for Employers?

In 1982 I was an Air Force captain starting law school. The US military was embarking on the nation's first large-scale drug testing program for its members. The first several years of that testing program revealed that approximately one in four individuals randomly tested were showing positive for marijuana or cocaine.

Over the years, drug testing moved into the civilian sector and it is now commonplace. Employer drug testing ushered in a wave of state regulation concerning employee rights, driven by concerns of invasion of privacy with respect to off work activity, disparate racial impact, and others.

Indeed, employee drug testing compliance was a major legal issue for many years. But we are starting to see another one of those seismic shifts in employment law that come along every decade or so. As more and more states legalize recreational marijuana, employers are starting to drop mandatory drug testing or applicant drug testing is a requirement for their employees.

This is driven by a number of factors, legalization being just one. According to at least one recent and reliable poll, 64% of Americans favor marijuana legalization for recreational use. Only 12% favored recreational legalization in 1969. In addition, it's getting harder and harder to find employees generally in this market, and drug testing weeds out,so to speak, a number of people who would otherwise be considered solid candidates. Failed drug tests reached an all-time high in 2017 according to SHRM data.

Excellence Health, a Las Vegas-based healthcare company with 6000 employees, no longer drug tests people coming to work on the pharmaceutical side of the business. AutoNation announced it will no longer disqualify job applicants who tested positive for marijuana. The Denver Post ended preemployment drug testing for all safety sensitive positions in September 2016. This likely explains the quality of some of the recent writing there about the Broncos quarterback situation.

Now, this drop in testing will be good news to some of you.

But lawyers need to start thinking about implications for their client base, particularly in areas of insurance coverage, if it starts becoming likely that a portion of the workforce is either actively or residually impaired. Or appears to be impaired. Drug testing still has a significant impact on federal contractor employment, and for federal contractors, drug-free workplace policies are going to become an increasingly important issue.

It's going to become even more important that employers are able to identify employees impaired by dope and not rely on postaccident testing. Employers will have to think creatively about how they deal with signs of incapacitation and what constitutes incapacitation at work.

These are all issues that companies need to start thinking about now. And understand that they may be looking at a workforce that is riskier than the one they have today.

Some thoughts on James Damore and the National Labor Relations Board

At some point, the NLRB will look back on the Advice Memorandum  prepared by one of its regional attorneys concerning the Google/James Damore charge and ask itself how such a poorly thought out opinion letter made it into the Board's jurisprudence. The Memorandum has been excoriated in a number of different places. I don't mean to rehash those criticisms here.

Some background first. Damore was a Google employee who, in response to diversity training at the company and at the request of a company HR manager, drafted a memo that raised a basic question concerning the effectiveness of Google's diversity initiatives with respect to women. Damore initially circulated the first draft of the document with the HR management team through a feedback form it provided. The memorandum was eventually published on a companywide discussion group called "coffee beans", specifically designed to discuss Google's diversity and inclusion programs.

Damore's thesis was straightforward and supported by well-established research: if there are significant differences based on gender between how men and women operate in an environment like Google, then Google's diversity efforts, which focus on gender-based discrimination, will not solve the problem. Damore's memorandum specifically noted studies that demonstrated uncontroversial facts, including that: a)  women are more prone to neuroticism (which meant experiencing higher anxiety and lower tolerance for stress), and b) that men demonstrate greater variance in IQ such that there are more men at both the top and bottom of the distribution, which might lead to an employer choosing more men than women when it hires from the "top of the curve".

Damore was careful to note that these tendencies were generalized across large populations and that these differences did not necessarily apply to all individuals.  Eventually, as the memorandum gained more circulation within Google, it became the basis for Damore's termination. The company noted that its decision to fire him was based "solely on the part of your post that generalizes and advances stereotypes about women versus men. It is not based in any way on the portions of your post that discuss Google's programs or trainings, or how Google can improve its inclusion of different political views."

Notwithstanding the clear nature of Damore's memo as protected concerted activity, the Board attorney found that the company was justified in firing him because his memo contained language that the Board attorney considered to be stereotypical "based on purported biological differences between women and men." The board attorney noted that this constituted sexual-harassment notwithstanding the use of scientific references and analysis (the Memorandum actually puts quotation marks around the word "scientific").

The Memorandum makes no attempt to establish that these two items out of a memo drafted at the invitation of Google human resource managers constituted sexual-harassment under any type of legal standard. In fact, there is no discussion in the Memorandum of what type of sexual harassment Damore's memo contains. Most importantly, there is no assessment about whether the offending language was objectively hostile, measured against either Ninth Circuit or Supreme Court precedent.

Even more troubling is the analytical failure of the Memorandum. A company that solicits discussion about its diversity programs effectively opens the door to reasonable discussions about gender-specific traits and choices (again, this is not particularly controversial in the scientific literature). Moreover, the language Damore used in his memorandum is not even close to the inflammatory language cited by the Board attorney as unprotected because of its pernicious nature. Damore does not refer to supervisors as members of the Ku Klux Klan, he does not direct sexually abusive remarks to individual employees, or identify named employees as homosexuals. To be sure, there were individuals at Google who were offended by Damore's analysis. But this is not enough under modern sexual-harassment law. The remarks must be objectively hostile, something that a scientific analysis almost certainly is not. Moreover, as the Board has noted in numerous other cases, a certain amount of give-and-take discussion in the workplace, and especially the use of rough language by employees, is part of any workplace culture, and outside of extreme circumstances insufficient to exempt bad language from the protections of the National Labor Relations Act.

In short, the Advice Memorandum is so analytically and factually flawed that it screams "predetermined outcome." No doubt the author was offended by Damore's assertions and wanted to reward Google for punishing him for them. But this document not only undermines the Board's credibility in labor analysis, it potentially opens the door to a lot more problems down the road.

UPDATE:  More research supporting Damore's position here.

UPDATE #2:  Anti-white/male training at Google.