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!

A few weeks ago, we had some spirited discussions on office romance and whether “love contracts” are a good idea.  Today, Newsweek.com ran a story exploring those topics in detail and was kind enough to quote yours truly.  Click here for the story.

The article discusses love contracts at length and offers some expert legal opinions suggesting they’re a good idea.  When we asked our readers what they think, we got an even 50-50 split for and against.  But virtually everyone who offered a comment on the topic was dead set against ‘em.

To sum up my feelings on this issue, here’s the quote from the Newsweek article:

Consensual relationship agreements are just another case of “overlawyering,” says Mark Toth, the chief legal officer for Manpower North America, an outplacement and employment services company based in Milwaukee. “It forces [employers] to become the love police, consistently enforcing who’s dating whom,” Toth says. And he’s not sure if such contracts will necessarily protect companies from litigation. A subordinate signing a love contract might claim that he or she signed under duress or that harassment began after the contract was signed.

The Department of Labor has issued a new Q&A resource to help employers with questions related to qualified default investment alternative (QDIA) rules.  Click here for more.

The answer:  maybe.

Thanks to a landmark case in Indiana, you may soon start seeing lawsuits that attempt to expand traditional Title VII harassment claims to include workplace bullying.

The Facts

Joseph Doescher, a former employee at St. Francis Hospital in Beech Grove, Indiana, filed a lawsuit accusing his employer of ”workplace bullying.”  Specifically, he alleged that Daniel Raess, the hospital’s chief heart surgeon, subjected him to screaming, swearing, threats and other abusive behavior, leading to depression and ultimately forcing him to quit his job.

One incident occurred when Doescher requested time off to attend his uncle’s funeral.  Raess allegedly responded by saying:  ”You’re not going anywhere.  You’re staying here.”

Doescher says his complaints about Raess’ behavior only made Raess angrier and more abusive.  Doescher says the bullying continued up until a final confrontation in which Raess lunged and screamed at him and then stormed out of the room, yelling:  “You’re finished – you’re history!”  Doescher claims that this final incident triggered severe depression that eventually forced him to resign.

In support of his claims, Doescher introduced expert testimony by Gary Namie, Research Director for the Workplace Bullying and Trauma Institute.  Namie characterized the confrontation as an “episode of workplace bullying” and Raess as a “workplace abuser.”

The hospital didn’t deny that Raess occasionally yelled at employees.  But it claimed that Doescher was equally at fault for the alleged confrontation and that workplace bullying is not a recognized cause of action.

The Ruling

The jury sided with Doescher, awarding him $325,000 in lost wages but denying his demand for punitive damages.  The hospital appealed on the grounds that the trial court erred by allowing Namie’s opinions and by refusing to instruct the jury that workplace bullying is not an actionable claim.

The appeals court overturned the verdict.  Doescher then appealed to the Indiana Supreme Court.  The Supreme Court reversed the court of appeals’ ruling and reinstated the jury verdict in favor of Doescher.

The Lessons

According to a study by Namie’s institute:

• 37% of U.S. employees – an estimated 54 million people — have been bullied at work
• 72% of bullies are bosses
• 45% of bullying victims suffer stress that affects their health, with 33% suffering for more than a year
• 40% of bullying victims never complain and only 3% file lawsuits
• bullying is 4 times more common than unlawful forms of harassment

Given the court’s ruling and the above statistics, it’s more important than ever for employers to take proactive steps to prevent workplace bullying.  Whether or not other courts follow the Indiana Supreme Court’s lead, bullying or abusive behavior left unchecked can have significantly negative effects on morale, productivity and retention.

Employer handbooks should include a specific provision on proper workplace conduct and that provision should be consistently enforced.  Consider coaching and counseling for those who violate the policy and discipline up to termination for egregious or repeated violations.

In an appearance last week on The Daily Show, John McCain announced to the world that he has selected a running mate for the upcoming election:  Dwight Schrute of NBC’s The Office.

Click here for the video.  Here’s a transcript of the actual exchange:

McCain:  Listen, I know you’ve been wondering who my vice presidential candidate is going to be.

Jon Stewart:  Let’s hear it.

McCain:  I’ve got it written down.  You ready?

Stewart:  Uh-huh.

McCain:  You heard it here first.

Stewart:  All right.

McCain:  Dwight Schrute.

(Audience erupts with wild applause.)

Just in case McCain wasn’t kidding (and we’re not 100% sure he was), we thought we’d put together a handy guide to Schrute’s views on key HR issues to help educate our readers:

On workplace decision-making:  Whenever I’m about to do something, I think “would an idiot do that?” and if they would, I do not do that thing.

On health care:  In the wild, there is no health care.  In the wild, health care is, “Ow, I hurt my leg.  I can’t run.  A lion eats me and I’m dead.”

On how to motivate new employees:  I am going to be your new boss.  Welcome to the Hotel Hell.  Check-in time is now.  Check-out time is never.

On how to conduct an investigation:  There are several ways to tell if a perp is lying.  The liar will avoid direct eye contact.  The liar will cover part of his or her face with his hand, especially the mouth.  The liar will perspire.  Unfortunately, I spoke to [the alleged perp] on the phone so none of this is useful.

On the critical issue of whether to tip a delivery person who brings sandwiches to the workplace:  Why tip someone for a job I’m capable of doing myself?  I can deliver food.  I can drive a taxi.  I can, and do, cut my own hair.  I did however, tip my urologist, because I am unable to pulverize my own kidney stones.

So, what kind of VP would Schrute make?  Here is Schrute’s own description of his tenure as #2 in The Office:  I have been Michael’s number-two guy for about 5 years.  And we make a great team.  We’re like one of those classic famous teams.  He’s like Mozart and I’m like . . . Mozart’s friend.  No.  I’m like Butch Cassidy and Michael is like . . . Mozart.  You try and hurt Mozart?  You’re gonna get a bullet in the head courtesy of Butch Cassidy.

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.

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.

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!

The Ninth Circuit upheld an award of more than $700,000 to a female employee who alleged that she was raped and subjected to other forms of sexual harassment and retaliation during her employment.

The Claims

Olivia Tamayo was employed as a farm worker by California-based Harris Farms for fifteen years, beginning in 1985.  She alleged that for years she was forced to work in isolation with a supervisor, Rene Rodriguez, who continually harassed and intimidated her and forcibly raped her on three separate occasions.

She testified that she initially didn’t report the incidents because of Rodriguez’s threats,  and the fact that he routinely carried a gun and/or knife.  When she eventually did report the harassment, Tamayo says the company failed to take action to protect her and continued to force her to work alone in a field near Rodriguez’s home. 

The company contended that it took sufficient steps to protect Tamayo, including calling in a sheriff’s deputy to investigate Tamayo’s claims.  The deputy declined to file criminal charges against Rodriguez.

Tamayo filed a complaint with the EEOC in 1999.  The company allegedly reacted by suspending her and telling her that she would be terminated if additional “problems” occurred.

Tamayo eventually quit in 2001, claiming constructive termination.

The Verdict

The jury found the company liable for sexual harassment, retaliation and constructive termination.  She was awarded $300,000 in punitive damages, $350,000 in compensatory damages, $91,000 in front pay and $53,000 in back pay.  The judge also imposed an injunction against the company, ordering it to refrain from any further retaliation against employees who complain of harassment.

The Appeal

The company appealed the punitive damages award on the grounds that it was inappropriate and excessive.  The Ninth Circuit disagreed, pointing to the company’s ”retaliatory tactics,” including its suspension of Tamayo after she reported the harassment.

The EEOC issued the following statement following the ruling:  “The Ninth Circuit agreed with the jury’s verdict:  punitive damages were justified in light of the retaliation Mrs. Tamayo suffered.  As an immigrant with limited education and limited English, she faced significant financial risks and social obstacles to speak out against harassment.  In fact, her harasser threatened to kill her husband and otherwise harm her family.  To come forward under these circumstances only to be met with further retaliation by Harris Farms is unjust and illegal.”

The Lesson

Employers who fail to take adequate steps to address claims of harassment face significant potential liability.  Each claim should be investigated promptly, thoroughly and as confidentially as possible to ensure fairness and safety for all employees.

As evidenced by this case, failing to separate the alleged harasser and victim could be a recipe for disaster.  This is particularly true in remote work locations, where the potential for inappropriate conduct is heightened.  The employer should consider placing the alleged harasser on paid leave during the investigation, transferring him/her to a different shift or allowing him/her to telecommute.  Again, the goal is fairness and safety for all.

In a few minutes, I’ll post a handy checklist to help guide your investigations.  Check it out.