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Mark

As part of our ongoing commitment to providing the finest in employment law education, we’re counting down our Top Ten Wackiest Employment Law Cases.

Here’s Case #2 . . .

Dilbert and the Drunken Lemurs

In a case of art imitating life imitating art, a judge ruled in favor of an employee who was fired after posting a Dilbert cartoon likening managers to “drunken lemurs.”

The Catfish Bend Casino in Burlington, Iowa fired David Steward for posting the cartoon on an office bulletin board shortly after management announced that the casino would be closing and laying off 170 employees.  “Basically,” HR Director Steve Morley testified, “he was accusing the decision-makers of being drunken lemurs.”  “We consider that misconduct when you insult your employer.”

The cartoon depicted the following conversation between Dilbert and a friend:

Dilbert:  Why does it seem as if most of the decisions in my workplace are made by drunken lemurs?

Friend:  Decisions are made by people who have time, not people who have talent.

Dilbert:  Why are talented people so busy?

Friend:  They’re fixing the problems made by people who have time.

Steward testified that he posted the cartoon because he “thought maybe it would cheer some people up.”  However, it elicited the opposite reaction from management and he was fired three days later for “not being a team player.”

Administrative Law Judge Lynette Donner ruled in favor of Steward, calling his actions a “good-faith error in judgment” rather than intentional misconduct.

Even Dilbert creator Scott Adams weighed in on the decision.  “Most ‘Dilbert’ comics dont’ come right out and call management a bunch of drunken lemurs,” Adams said.  “So I can see how this one might have been a tad over the line.” 

The “art imitating life imitating art” part came shortly thereafter when a series of Dilbert strips lampooned the case.  One strip featured the following exchange:

Boss:  Our surveillance cameras caught you posting this anti-management comic on the wall.  The comic compares managers to drunken lemurs.  Do you think drunken lemurs are like managers.

Wally:  No.  Some lemurs can hold their liquor.

Another one took it a step further:

Catbert:  Wally, I have to fire you for posting a comic comparing managers to drunken lemurs.  You won’t be eligible for unemployment benefits unless you can prove you were stupid as opposed to malicious.  Can you prove you’re stupid?

Wally:  Is there another explanation for working here?

For the entire series of strips, click on the Dilbert icon to the left and scroll back to February 21.

Completely Irrelevant Bonus Information

We conducted a poll to see how our readers felt about the decision.  77% agreed with the judge, 16% disagreed and 7% responded:  What’s a lemur? 

For the benefit of the latter group, Webster’s defines a lemur as: 

any of various arboreal chiefly nocturnal prosimian primates (superfamily Lemuroidea) that were formerly widespread but are now largely confined to Madagascar and that usually have a longish muzzle, large eyes, very soft woolly fur, and a long furry tail.

And, apparently, they can hold their liquor.  Click here for a picture.

The U.S. Department of Labor has released a new free “elaws” tool to help employers comply with recordkeeping, reporting and notice requirements.

The new FirstStep Recordkeeping, Reporting and Notices elaws Advisor has been added to a suite of FirstStep tools that include the FirstStep Poster Advisor and FirstStep Employment Law Overview Advisor.  The DOL has a wide variety of other elaws tools addressing topics such as workplace safety, veterans’ rights, benefits, minimum wage and child labor.

“These Internet tools will make it easier for small business employers to learn about and comply with the federal laws that apply to them,” said Secretary of Labor Elaine Chao.

To check out the tools, visit www.dol.gov/elaws.

The answer is a resounding “yes,” according to the vast majority of managers.

According to a new survey by TheLadders.com, 98.7% of bosses believe in office etiquette and 69.7% would fire an employee for bad workplace manners.  82.4% said they have issued an official warning and 6% have actually fired someone for breaching office etiquette.

Among bosses who have fired an employee for bad manners, the top five offenses were:

1. Foul language (38.4%)
2. Excessive gossip (36.5%)
3. Drinking on the job (35.2%)
4. Leaving the office without telling anyone (33.6%)
5. Excessive personal calls (28.0%)

So, what do employees think is the world’s worst workplace faux pas?  Believe it or not, the #1 answer was stealing someone else’s food from the fridge.  Finishing second was bad hygiene.  Others that made the list included cooking stinky food in the office microwave, swearing and sending messages on a BlackBerry during a meeting.

Practical Application

Based on the above, we have scientifically determined that the absolute most optimal way to get fired would be to (a) steal someone’s lunch, (b) cook it in the office microwave, (c) swear, gossip, send messages on your BlackBerry and make personal calls while it’s cooking, (d) have a beer with your meal, (e) don’t brush and floss afterward and then (f) immediately leave the office without telling anyone.

You are hereby cordially invited to join us for our next quarterly webinar, entitled “How to Fire Without Getting Fired:  The Legal Do’s and Don’ts of Employee Discipline and Termination.”

Every time we conduct a poll to see what information our readers want the most, the #1 answer is always terminations.  We designed the webinar with your needs in mind.  Here’s what you’ll get:

• up-to-the-minute info on the latest legal developments related to employee discipline and termination;
• answers to the world’s toughest discipline/termination questions;
• tips and techniques based on real-life examples; and
• handy checklists and other practical tools to help make your terminations as painless and legally defensible as possible.

The webinar is May 28 from 11:00 to noon Central Time.  To register, click here.  If you have discipline/termination questions you’d like us to address during the webinar, please send ‘em to blawg@manpower.com.

Our last webinar had approximately 1,000 participants.  We’re shooting for 28 million on this one.  Hope you can join us!

As technology becomes more and more inextricably intertwined with our daily working lives, whole new lines of employment lawsuits are being generated.  To help deal with this phenomenon, we have devoted several of our recent Questions of the Week to technology-related issues.  

Here’s this week’s question:

As reported previously here on the Blawg, last year was a record for race harassment cases.  Unfortunately, that trend shows no signs of abating.

In the latest case, Conectiv Energy and three of its subcontractors agreed to pay $1.65 million to settle discrimination claims brought by four African-American employees who alleged they were subjected to egregious racial harassment, including racial slurs, KKK graffiti and nooses hanging in the workplace.

According to the EEOC, the harassment included:

• a life-size noose that hung from a beam in the workplace for more than ten days;
• repeated use of the “N-word” and other racially offensive comments; and
• racist graffiti in work areas, including statements professing hatred for African-Americans and love for the KKK.

In addition to the payments, the companies agreed to four-year consent decrees that enjoin them from engaging in racial harassment and retaliation and that require comprehensive anti-discrimination training, the posting of notices describing the settlement and reporting future complaints of harassment to the EEOC for monitoring.

The lesson?  In the words of EEOC District Director Marie Tomasso:  “Employers risk intervention by the EEOC when supervisors ignore racially offensive working conditions and fail to take prompt and effective remedial action to stop it.”

What should employers do?

Enforce EEO Policies and Investigate Claims.  As this and other disturbingly similar cases we’ve discussed illustrate, failing to adhere to anti-discrimination and anti-harassment policies can have drastic consequences.  Investigate all claims of discrimination fairly and thoroughly and take appropriate disciplinary action promptly and consistently.

Embrace Diversity.  As discussed in one of our Questions of the Week, diversity training alone does virtually nothing to improve workforce diversity.  Experts recommend a variety of mechanisms to supplement diversity training, including:  (1) accountability at the top; (2) mentorships; (3) creating a diversity point person or task force; and (4) recruiting from a wide variety of sources (e.g., minority colleges).  Diversity is far more than a feel-good program.  It’s an absolute business necessity.  Companies that start taking steps to build a diverse workforce will be ahead of the pack as the talent crunch continues to intensify.

Last week, I reported on a pair of topics that have been generating quite a bit of buzz:  babies and guns.

On the baby front, it appears that more and more employers are allowing employees to bring infants into the workplace.  Proponents say that doing so under certain well defined guidelines increases overall productivity and morale.  Time Magazine ran a story on the phenomenon, including this rather pithy quote from a business owner:  “I don’t think a  baby is more distracting than talk about Dancing with the Stars or your weekend.” 

On the gun front, most of the debate centers around a recently enacted Florida statute that will make it unlawful for employers to prohibit employees from bringing guns to work beginning July 1.

We wanted to get your thoughts on the subject, so we asked the following question:

Which should employees be allowed to bring to work?

a.  Babies
b.  Guns
c.  Babies and guns
d.  Neither babies nor guns

The clear winner, with 57% of the votes was “d” — neither babies nor guns.

The runner-up with 31% was “a” — babies.  A somewhat concerning 7% voted for ”c” — babies and guns and 5% voted for ”b” — guns.

I have to say that I echo the sentiments of our voters.  As the father of twins, I hereby heartily applaud employers and employees who can make the “bring the kids to the office” thing workable.  But I can’t even imagine the havoc my two little bundles o’ joy would have wreaked had they been allowed in my workplace on a regular basis.  I once brought them in on a weekend for a total of about 37 seconds and in that time they managed to (a) knock over an entire supply cabinet, (b) spill their juice-filled tippy cups a couple dozen times apiece, (c) get some sort of unidentified gooey/stinky substance all over my keyboard and monitor, (d) make approximately 98 visits to the bathroom and (e) toddle in and out of various cubicles leaving behind creative post-it note displays and a rather impressive wake of destruction everywhere they went.  Just imagine what they could have done had they been heavily armed.

Thanks for your participation!  Our next Question of the Week will be coming your way soon.

At one of our recent presentations, we asked an audience of HR professionals to get in touch with their feelings . . .

First, we asked them:  On a scale of 1-10 (1 = hate; 10 = love), how satisfied are you with HR as a career choice? 

The average score was a very healthy 8.51.  In fact, only one respondent gave a score below the “5″ midpoint, which is truly remarkable. 

Seems like just about every poll we conduct affirms one simple yet inescapable conclusion:  HR professionals are the happiest people on the planet.

Next, we asked:  On a scale of 1-10 (1 = hate; 10 = love), how do you feel about lawyers?

While the average score was a full point lower than the previous question, it was still a rather shockingly high 7.51 — approximately 8 points higher than I thought it would be.  Maybe lawyers aren’t so bad after all (or maybe HR people are just too dang nice to tell us how they really feel).

Thanks to all who participated!

Today, the Blawg’s ‘08 Tour stops in lovely Jackson, Michigan, where I’ll be presenting to 100+ business owners and HR professionals on the latest employment law developments.  If they’re nice, I may even lead them in the Employment Law Sing-a-Long Song.

If you’d like the Blawg Tour to consider swinging by your town, please email us at blawg@manpower.com.  We’ll do everything we can to accommodate your request.  Generally, we like to shoot for audiences of 100 or more but will make exceptions if you are (a) located in a warm climate, (b) near a golf course and (c) the date is in Winter (which in Wisconsin lasts approximately 11 months).

As part of our never-ending quest to ensure that you have all the tools you need to reduce your potential legal liability, we have created a handy investigation checklist.  Print it out and use it as a guide to help ensure that all your investigations are thorough, fair and consistent.

To get it, just click on “Investigation Checklist” under the “Tools & Tips” Section to the left.  Enjoy!