The current issue of Business Week has a fascinating series of articles all about avoiding disasters in the modern workplace.  As promised, here are the highlights from an employment lawyer’s perspective.

Work-life Balance.  It’s pretty simple:  happy, balanced employees are less likely to sue and happy, balanced managers are less likely to get sued.  Here’s what the gurus suggest:

• Results, not hours.  What matters is actual results, not how many hours employees put in at the office.  Employers that allow telecommuting and other flexible arrangements often see improved productivity and morale.  Focusing on results also helps reduce the potential for discrimination based on non-job-related factors.
• Embrace diverse work styles and schedules.  More and more employers are waking up to the fact that diversity of all sorts is the key to a healthy work environment.   Encourage employees to work in ways that foster teamwork and results, as opposed to mandatory 8-to-5 cubicle confinement.
• Unplug.  Encourage employees to turn off their CrackBerries and to enjoy life every once in awhile.  They’ll be happier and so will you.

Toxic Bosses.  Few things land an employer in legal hot water faster than a toxic boss.  Here’s how to reduce the toxicity level:

• Be ethical or be gone.  That’s the advice of Sherron Watkins, the employee who blew the whistle on corrupt Enron execs.  Companies that fail to address unethical behavior at the management level may put the entire organization at risk.
• Be nice or be gone.  According to Robert Sutton, putting people in positions of power has two unfortunate side effects:  (1) they start focusing more on themselves and less on others and (2) they act as if they are immune from the rules.  One study even found that new managers tend to suddenly develop disgusting personal habits such as eating with their mouths open.  Train managers on the dangers of abusing power, the need to be sensitive to employee concerns and the importance of listening (as well as chewing with their mouths closed).

Death by Bureaucracy.  Bad processes can lead to bad decisions which can lead to bad lawsuits.  Here’s how to avoid choking the organization to death:

• Question Everything.  Periodically assess all processes (even those owned by HR and Legal) to identify and remove potential bottlenecks.
• Communicate.  Promote transparency.  Give all employees access to information for faster (and better) decisions.

Generation Gaps.  The articles provide loads of tips on how to deal with generational tensions in the workplace.  Caution:  Avoid stereotyping and making decisions based strictly on age-related assumptions.  Get to know each individual employee’s strengths, weaknesses and style.

Several thousand TV writers inked a $4.5 million settlement with talent agency International Creative Management, Inc. (ICM), resolving the first of 23 pending age discrimination suits against various talent agencies, TV networks and studios.

The lawsuits were filed in 2000 and include cases pending in California state court against media giants ABC, CBS, NBC, Fox, Disney, Columbia, Warner Brothers and talent agencies ICM, Creative Artists, William Morris and others.  The writers allege that the agencies refused to represent older writers and aided and abetted the networks’ and studios’ systematic failure to hire them.

In addition to the payment, ICM agreed to implement a variety of institutional changes, including working with an independent task force to scrutinize its policies and procedures and participating in a program that will seek to promote the top 25% of older writers based on script evaluations conducted by a panel of experts.

The plaintiffs’ law firm says it is in “serious settlement negotiations” with the remaining defendants.

The Lessons

As discussed previously here on the Blawg, age discrimination cases are #1 in terms of verdict size.  Those numbers will undoubtedly continue to grow as the so-called “graying” of the U.S. workforce continues.

Court dockets are packed with cases in which older workers allege that they feel left behind by companies trying to update their image and move faster to stay in step with the new economy.  The focal point of many of those cases is the use of subjective “ageist” terms such as “slow” or ”outdated” when referring to older employees.  Those cases usually don’t work out too well for employers.  Click here for a real-life example.

Obviously, employers should avoid any hint of bias against older workers as well as any facially neutral policies or procedures that could have a disparate impact.  Older employees can be a valuable resource and often have tremendous skills and experience.  Help your managers see the value of inclusiveness and diversity and the dangers of making potentially discriminatory remarks and decisions.

Business Week is running a fabulous series of articles with loads of tips for avoiding potential workplace disasters, including irritating co-workers, mean bosses, generational tensions and many more.  Check ‘em out here.

We’ll provide a handy summary of the highlights from an employment lawyer’s perspective soon.  Stay tuned.

Congress has created a new whistleblower claim under the recently passed Consumer Product Safety Improvement Act of 2008. 

In short, the Act creates a cause of action for employees who blow the whistle on product safety issues.  For all you legal junkies, here’s the language in all its glorious legalese:

No manufacturer, private labeler, distributor, or retailer may discharge an employee or otherwise discriminate against an employee with respect to compensation, terms, conditions, or privileges of employment because the employee, whether at the employee’s initiative or in the ordinary course of the employee’s duties (or any person acting pursuant to a request of the employee) . . .

(1) provided, caused to be provided, or is about to provide or cause to be provided to the employer, the Federal Government, or the attorney general of a State, information relating to any violation of, or any act or omission the employee reasonably believes to be a violation of any provision of this Act or any other Act enforced by the Commission, or any order, rule, regulation, standard, or ban under any such Acts;

(2) testified or is about to testify in a proceeding concerning such violation;

(3) assisted or participated or is about to assist or participate in such a proceeding; or

(4) objected to, or refused to participate in, any activity, policy, practice, or assigned task that the employee (or other such person) reasonably believed to be in violation of any provision of this Act or any other Act enforced by the Commission, or any order, rule, regulation, standard, or ban under any such Acts.

The law includes a penalty for frivolous complaints.  Unfortunately, it only allows the targeted employer to recover a “reasonable attorneys’ fee” not exceeding $1,000.

Click here to see the full text.

The Bottom Line 

As with other whistleblower claims, it’s critical that employers take employee complaints of wrongdoing seriously and do whatever is necessary to prevent retaliation based on those complaints.

Several unions have filed suit to prevent enforcement of a Department of Transportation (DOT) rule that would require transportation employees who previously tested positive for a banned substance to be observed when giving urine samples.  The rule will take effect August 25, unless the court intervenes.  (BNSF Railway Co. v. DOT,  No. 08-1264 (D.C. Cir))

The unions contend that the rule violates the Fourth Amendment protection against unreasonable searches and that it was issued without the notice required by the Administrative Procedure Act.  The DOT maintains that the rule is necessary given the “wide variety of products for adulteration of urine” that are now available. 

The DOT’s drug rules apply to more than 12 million employees who work in “safety-sensitive” transportation jobs.

Stay tuned for more.

The following is based on a true story . . .

Let’s say you’re head of HR for a prominent fast food restaurant chain.

Late one Friday, you get a call from an area manager informing you that an employee apparently thought it would be a good idea to get naked and take a bath in one of the restaurant’s sinks.  Not only that, but another employee captured the entire event on video and posted it on MySpace and YouTube, where it’s already been seen by several thousand people.

The area manager forwards you a link to the video.  You watch it and are horrified.  Basically, it’s three-and-a-half minutes of a mohawked and heavily tattooed employee who calls himself “Mr. Unstable” taking a bubble bath in the very sink where the restaurant’s cooking equipment and utensils are cleaned.  Various employees can be seen milling about, including a manager who is specifically asked to check out the incident but declines to do so.  You then get a call from the health department, notifying you that they’re on the way to the restaurant to make an inspection.

For those who want more background, the news story is here and the video here.  Proceed at your own risk — it ain’t pretty.

In preparation for my upcoming October 30 Halloween webinar, entitled Answers to the World’s Scariest Employment Law Questions, I conducted a survey of the finest employment lawyers in the country to get their answers to the following question:

What are the top ten employment law issues most likely to wake you up screaming in the middle of the night?

Here are the answers . . .

1. Inadequate knowledge of employment law basics
2. Executive misconduct
3. Any form of discrimination
4. Wage and hour violations
5. Retaliation
6. Inadequate investigation
7. Failure to follow policies
8. Bad documentation/communication
9. Emotional rather than fact-based decisions
10. Inconsistency

Over the next few weeks leading up to the webinar, we’ll give you our recommendations for reducing the scream-inducing capacity of each of these truly frightening items.

In the meantime, I suggest using this list as a sort of self-audit priority list.  Start with #1, assess your company’s risk, and then take steps to fix it.  Then move on to #2 and repeat.  If you get all the way through #10, you (and your lawyers) should be able to sleep a whole lot better.

More to follow.

A new study indicates that all parties to a lawsuit may be better off settling rather than going to trial.

Litigation consultants DecisionSet studied civil trial verdicts over a forty-year period and reached some interesting conclusions.  The highlights:

• approximately 90% of all cases settle
• plaintiffs made the wrong decision in 61% of cases by going to trial
• defendants made the wrong decision in 24% of cases by going to trial
• getting it wrong cost plaintiffs an average of $43,000
• getting it wrong cost defendants an average of $1.1 million

So, who’s to blame for all these bad decisions?  According to Randall Kiser, co-author of the study, the answer may be litigation lawyers.  ”It’s entirely possible that attorneys are not giving adequate advice,” he says. 

As evidence, Kiser pointed to a “troubling finding” that bad decisions to go to trial have actually become more frequent over the years.  “It’s peculiar if any field is not improving its performance over a 40-year period,” he said. 

In its analysis of the study, the New York Times noted that “[c]ritics of the profession have long argued that lawyers have an incentive to try to collect fees that are contingent on winning in court or simply to bill for all the hours required to prepare and go to trial.”  It also pointed out that law schools don’t teach lawyers how to handicap the odds of winning a trial.

Lawyers have been quick to criticize the study, which actually hasn’t been released yet.  “Most clients think they are completely right,” Michael Shepard of the law firm Heller Ehrman told the Times.  “A good lawyer has to be able to tell clients that a judge or jury might see them differently.”

The Lesson

Whether it’s lawyers or clients who are more at fault, we suggest taking matters into your own hands by doing an early case evaluation of all lawsuits to determine the merits of settlement versus trial.  Click here for handy tips on that and other ways to make litigation less painful.

A few weeks ago, we reported here on some intriguing developments under the Pregnancy Discrimination Act.  As we discussed, employers that are overly paternalistic in dealing with pregnant employees can find themselves in legal hot water.

An article in the USA Today helps illustrate the problems with that approach.  Apparently, when management at New York’s Bridges and Tunnels Authority discovered that one of its officers was pregnant, it declared her ”unfit for duty, stripped her of her gun and sent her to work in a tollbooth.”

The Authority says its actions were “guided by the advice of our agency’s medical doctor.”  The employee, however, claims her personal doctor cleared her to work.

According to union officials, other women have been “sidelined” for being pregnant.  “Word got around that officers would lose their gun if pregnant.  One woman didn’t say a word until she was six months pregnant when her own doctor suggested she stop,” said one official.  “It’s like it’s still 1950 or something.”

Click here to read more.  The comments below the article are particularly interesting.

As we discussed briefly on Friday, the answer to the above question is “yes,” according to a pair of recent federal court decisions.

The federal appeals court for the District of Columbia ruled that sexual relations and sleeping constitute “major life activities” for the purpose of determining whether an employee is “disabled” under the law.  (Adams v. Rice, No. 07-5101; Desmond v. Mukasey, No. 07-5139)

The Test

An employee is “disabled” if he or she has a physical or mental impairment that “substantially limits one or more major life activities.”  Major life activities previously identified by courts include breathing, seeing, hearing, sitting, standing, walking, learning, caring for oneself, performing manual tasks and working, among other things.

Sex?

Kathy Adams filed a lawsuit claiming that the government denied her employment because she was a breast cancer survivor.  She alleged that her condition substantially limited her ability to engage in the major life activity of sexual relations. 

The lower court rejected Adams’ contention, concluding that sexual relations is not a major life activity.  Adams appealed. 

The appeals court reversed.  It relied on an earlier Supreme Court decision holding that “[r]eproduction and the sexual dynamics surrounding it are central to the life process itself.”  Accordingly, the appeals court reached the “self-evident conclusion” that sexual relations could qualify as a “major life activity.”

Sleep?

Martin Desmond also sued the government, alleging that it discriminated against him based on his post traumatic stress disorder which impaired his ability to sleep.  Like the Adams case, the lower court concluded that no reasonable jury could find in Desmond’s favor. 

The appeals court reversed.  Citing various sources ranging all the way from Macbeth to biology textbooks, the court concluded that sleep is “central to the life process itself” and thus unquestionably a “major life activity” under the law. 

The court also declined to require Desmond to prove that his sleep deprivation negatively impacted his work performance.  The court stated:  “neither the statute nor the regulations interpreting it include any indication that the major life activity of sleeping is substantially limited only if some other life activity is also limited.”

What’s Next?

Both cases now return to the lower court.  The juries will then decide whether Adams is substantially limited in her ability to engage in sex and whether Desmond is substantially limited in his ability to sleep.  If the plaintiffs pass those tests, then the juries will decide if the government discriminated against them.

For now, these decisions apply only in the D.C. Circuit.  However, it’s not inconceivable that other courts could follow suit.  In fact, the Ninth Circuit has already found sex to be a major life activity and several other circuits have found sleep to be included as well.

Stay tuned for more.