Employment Law Information

Archive for July, 2009

Getting Even With Your Boss For Not Following The Rules

This is one of my favorite, sneakiest ways to get even with a pissy boss – the company’s own employee manual.  It can be used as ammunition against your boss because even the boss man — or boss bitch — must follow the rules.

Chances are better than none if you were given a company employee manual when you were hired, you stuffed it in the bottom drawer of your desk and never looked at it again.  Well, it’s time to get it out.  If you don’t have one, go to HR and get it.  Then take it home and read it.  I know.  It’s boring as hell and the rules are unfair and a bit Gestapo-like.  Often times employee manuals overstate what’s required by law, sort of a “we really mean it so you better not try doing any of this crap”.  In being “so complete” they may be hanging themselves.  Cool!  Embrace it because you may be able to spin them around to work in your favor. 

The key to reading and enjoying it — yes, I did say enjoying it — is to pretend your going on an Easter egg hunt.  Many bosses don’t know their own company policies and procedures and you’re going to make turn that disadvantage into your advantage.  If the manager fails to follow what is outlined in those company rules, it can be held against him.  Hunt down as many of those violations as you can.  Your goal is to turn the rules around and to one day use them against your manager to prove he’s vindictive and out to get you and violated company policy to do it.

Here’s an example:  Your manager says “you have to clock in my 7:00 am or you’ll be fired, but there is no such thing listed in the employee manual.  Even though company policy is not employment law, in court it will make your manager look like he’s out to get you and can show purposeful, discriminatory intent. 

If the manager takes some sort of action and it violates company policy, make sure you document what happened.  Keep records of his violations with the who, what, where, when, and why.  Keep a diary and keep it off site and at home.  Do it on your computer if you have one.  Just open up a Word document and make your entry.  Then print out a hard copy and stick it in a binder.  Wouldn’t hurt to back it up on an SD card or USB thumb drive, too.

Back in the day when I was working, my company manual said we were all part of the same team.  We were required to work together as such and to treat each other with respect.  One day I was starting a new project.  It was a massive software conversion from client/server applications to web based.  I received an email from my boss saying to give it my best shot.  He had confidence in me because I’ve done conversions twice before, but never to web based.  So he said if I ever need help with some of the web stuff to go ask “Skank”.  Obviously, that’s not her real name, but she was one.

So nearing the very end of the project that had gone on for about a year, in my annual evaluation my boss said that I was pawning off work on her.  I was livid.  I had single handedly completed that project by myself and only went to her when I was truly having problems with the web stuff, but never to do the work, only to get guidance. 

I had years and years of excellent reviews with large raises and bonuses, then suddenly I got a “needs improvement”.  Funny thing is, it was also after having a new director who didn’t like me.  There was also a pattern of laying off the women in the company.  I was being squeezed out.  They were looking for a way to get rid of me.  It was just one of many, many incidences.

Had I known all I know today from reading Work Laws Exposed, I would NOT have signed on the dotted line for that enhanced severance package when I got laid off.  Instead, I would have gone straight to the EEOC and filed discrimination, disability harassment, and retaliation complaints.  But I didn’t know.  I had no idea I could get even.  When I read Work Laws Exposed it was like reading my own employment history.  The things my company got away with for all those years were illegal and they knew it.  That’s why they made me agree not to sue them if they gave me that severance package.

Even if you have the slightest gut feeling that something’s going down at work, but you don’t know what to do about it, I urge you to get Work Laws Exposed.

Disclaimer: I am not an attorney and I am not providing legal advice. This article is being provided for information and should not be relied on.

The time to start building a case against your boss is before trouble happens. One of the best ways to do this is with documentation. It can give you a gold mine of hard, cold, physical proof of wrong doing.

I’m sure you’ve heard it before, never say anything in an email that you wouldn’t say in public. Bosses are no exception and they get sloppy with what they put in writing. Often times your boss is pissed off and makes threats without first thinking it through. Emails can be full of knee-jerk reactions and bad blood when tempers are flaring — illegal, discriminating things. The types of things that make the company attorneys cringe.

The Good, the Bad, and the Ugly…

…but not necessarily in that order.

The Ugly

I say let those bosses have their rants like the sissy little girls they are, but never stoop down to their level by replying back with something you shouldn’t be saying in an email. Keep your cool because it can come back to bite you or hopefully your boss, in this case. Why? Because you’re going to save that vile email for future use as an email can show criminal intent in court. Forward the email off-site to your own private email account, not your work email.

Before hastily replying to one of these emails with a knee-jerk reaction of your own, take some time to think your response through, overnight if necessary. Play nice. Always write as if it will be publicly viewed. When you do reply, bcc your private email account so you have a record of it.

The Good

However, there is also a very important flip side to this. You must also document the good emails, the ones that praise you and pat you on the back for a job well done. You want to establish that you are a good employee. It’s also going to be critical in helping to pinpoint where the wheels fell off the cart.

The Bad

Even the bad emails need to be saved. The ones that show where your boss chastised you for screwing up. Your boss may bring it up in court in an attempt to show that you can’t do your job. Not to worry because you’re also going to document where you fixed the problem and show that it was a one-time occurrence, rather than a pattern of neglect and incompetence.

Manager Subjected Women to Hostile Work Environment, Federal Agency Charged

SAN ANTONIO — A Fredericksburg, Texas restaurant will pay $50,000 to settle a sexual harassment and retaliation lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced today.

The EEOC alleged in its suit that Winslow’s Restaurant’s male general manager engaged in sexual harassment of women employees, which occurred on a regular basis. The abuse included offensive touching of women as well as crude sexual statements and requests for sexual favors, the EEOC charged. Despite efforts by two female employees to report the harassment to the owners, the owners failed to take prompt and effective corrective action and instead allowed the general manager to engage in retaliatory conduct against the two women. The reprisals included a demotion and the reduction of hours which resulted in less pay, the EEOC said. Moreover, these two affected employees felt forced to leave the job because of the intolerable working conditions arising from the sexual harassment and retaliation.

Sexual harassment and retaliation for complaining about it violate Title VII of the Civil Rights Act of 1964. The EEOC filed suit after first attempting to reach a voluntary settlement.

On May 12, 2009, the consent decree settling the suit was signed by Judge Lee Yeakel of U.S. District Court for the Western District of Texas, Austin Division. In addition to providing $50,000 for the victims and enjoining Winslow’s Restaurant from engaging in sexual harassment and retaliation, the consent decree mandates that the restaurant adopt and implement an effective sexual harassment policy, train its employees on the requirements of Title VII, and post a notice in the workplace of its intent to fully comply with that law.

“Employers who ignore complaints of harassment show a tremendous disregard both for the law and for the employees whom the law seeks to protect,” said Eduardo Juarez, senior trial attorney of the EEOC’s San Antonio Field Office. “When they not only fail to correct the situation but also punish the complainers, they’re only compounding their own unlawful conduct. The EEOC will continue to fight for the rights of those who suffer this kind of abuse.”

In Fiscal Year 2008, 13,867 sexual harassment charges were filed with the EEOC and state or local agencies nationwide, an increase of 11 percent from the prior year and the highest level since FY 2002.

The EEOC enforces federal laws prohibiting employment discrimination. Further information about the EEOC is available on the agency’s web site at www.eeoc.gov.

Hospital Settles EEOC Disability Discrimination Suit

PITTSBURGH — A Pittsburgh hospital has agreed to pay $100,000 and furnish other equitable relief to settle a disability discrimination lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced today. The EEOC had charged the hospital with firing an employee because she had cancer.

According to the EEOC’s lawsuit against LifeCare Hospitals of Pittsburgh, Inc., former business manager Diana Altieri-Hand, of Murrysville, Pa., needed a reasonable accommodation for her disability after she had surgery for cancer and underwent chemotherapy. Altieri-Hand was a longstanding employee of LifeCare Hospitals of Pittsburgh or its predecessor and had a good performance record. LifeCare Hospitals of Pittsburgh, a free-standing hospital facility managed or operated by LifeCare Management Services, LLC, initially provided a reasonable accommodation to Altieri-Hand.

However, the EEOC charged, in about August 2007 the regional director of finance suddenly stopped accommodating Altieri-Hand’s disability and demanded that she return to work full-time with no restrictions. The EEOC’s complaint alleged that after Altieri-Hand returned to work full-time, the supervisor discriminated against her because of her disability, including substantially increasing her workload, removing her full-time staff assistant, and subjecting her to unwarranted work scrutiny. Finally, the EEOC charged, the hospital fired Altieri-Hand because of her disability.

Disability discrimination violates the Americans With Disabilities Act (ADA), which requires employers to make reasonable accommodations for employees’ disabilities as long as this does not pose an undue hardship on the business. The EEOC filed suit (Civil Action No. 08-1358, filed in U.S. District Court for the Western District of Pennsylvania) after first attempting to reach a voluntary settlement out of court.

The consent decree resolving the lawsuit prohibits the hospital from engaging in disability discrimination and retaliation. As part of the settlement, the hospital will also train all employees regarding the ADA’s prohibitions against disability discrimination. LifeCare did not admit liability in the consent decree, which is pending judicial approval.

“It is particularly disturbing and sadly ironic when a health care facility, of all places, refuses to reasonably accommodate an employee’s disability,” said EEOC Acting Regional Attorney Debra Lawrence. “The resolution of this case will remind employers about their legal responsibilities under the ADA.”

During Fiscal Year 2008, disability discrimination charges rose to 19,453 — an increase of 10 percent from the prior fiscal year and the highest number of disability bias charges filed with the EEOC in 14 years.

The EEOC enforces federal laws prohibiting employment discrimination. Further information about the Commission is available on its web site at www.eeoc.gov.

Federal Agency Charged County Used Threat of a Stress Test for Persons Age 70 and Older to Force Employee to Retire

OMAHA, Neb. — Dawes County, located in northwestern Nebraska, will pay $50,000 to an elderly former employee to settle an age discrimination lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced today.

According to the EEOC’s suit, Dawes County instituted a policy requiring all full-time employees over age 70 in the Roads Department to take a medical stress test. Russell Hack worked in the Roads Department and was the only full-time employee over age 70. Although Hack planned to work several more years, his supervisor told him he had to retire because he would not pass the test. After Hack retired, the EEOC said, the county never implemented the stress test policy.

Such alleged conduct violates the Age Discrimination in Employment Act (ADEA). The EEOC filed suit in U.S. District Court for the District of Nebraska (EEOC v. Dawes County, Nebraska, Civil Action No. 07-CV-376-JFB-TDT) after first attempting to reach a voluntary settlement.

Under the consent decree settling the suit, Dawes County will provide training to its employees on age discrimination. The county also agreed to post a notice in its facility defining and prohibiting discrimination, informing employees of their rights under federal law, and setting forth a procedure for employees to make reports of discrimination. The county will also be subject to EEOC reporting provisions that provide for the agency’s monitoring of age discrimination issues that may arise in the future.

“Employers must not use age as a criteria in employment decisions,” said James R. Neely, Jr., director of the EEOC’s St. Louis District Office. “Forced retirement is prohibited by the ADEA except in very limited circumstances.”

The St. Louis District Office is responsible for litigation in Nebraska, and the EEOC’s Oklahoma Area Office is part of the St. Louis District and handled the litigation.

EEOC Senior Trial Attorney Michelle Robertson added, “Retirement is an important milestone in a person’s life, a symbol of years of dedication and hard work, but forcing someone to retire simply because of age may violate the law.”

Age bias has accounted for one of the fastest-growing categories of discrimination charges filed with the EEOC in the past few years — steadily increasing from 16,548 filings in fiscal year 2006 to 24,582 filings in FY 2008, a record high.

The EEOC enforces federal laws prohibiting employment discrimination. Further information about the EEOC is available on the agency’s web site at www.eeoc.gov.

Fight age discrimination.  Get Work Laws Exposed.

Hispanic Workers Subjected to Ethnic Taunts, Federal Agency Charged

FRESNO, Calif. – Sam’s Club, the wholesale chain store owned and operated by Wal-Mart, violated federal law by compelling Latino employees to endure a hostile work environment based upon their Mexican national origin, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it filed today.

The EEOC’s suit (EEOC v. Wal-Mart Stores, Incorporated, dba Sam’s Club, et al, Case No. 09-CV-00804), filed in U.S. District Court for the Eastern District of California, charges a Fresno Sam’s Club subjected Latino employees to repeated verbal harassment, including the repeated use of derogatory words such as “wetback.”

National origin discrimination violates Title VII of the Civil Rights Act of 1964. The EEOC filed suit after first attempting to reach a voluntary settlement. The agency’s suit seeks compensatory and punitive damages for each of the claimants as well injunctive relief, including the creation of a formal discrimination complaint procedure, effective investigative and monitoring mechanisms, and annual training on equal employment opportunity for all employees.

“It is appalling that an employer, after becoming aware of the harassment, allowed this type of behavior to continue without taking appropriate and corrective action,” said the EEOC’s Fresno local director, Melissa Barrios. “The EEOC will continue to expand its presence in the Central Valley to ensure that its employers understand the magnitude of their duty to protect employees from discrimination.”

Anna Park, regional attorney of the Los Angeles District Office, added, “Particularly in California, tolerance of openly racist behavior towards Latinos should be a closed page in our history books. Since such a moment has not been reached, the EEOC will pursue all available remedies, including litigation, to ensure that Central Valley employees are protected against this sort of intolerable and unlawful harassment in the workplace.”

Wal-Mart Stores, Inc. is an Arkansas-based international retailer with more than 7,800 stores worldwide.

The EEOC enforces federal laws prohibiting employment discrimination. Further information about the EEOC is available on its web site at www.eeoc.gov. It is also available in Spanish at www.eeoc.gov/es/.

Fight racial employment discrimination.  Get Work Laws Exposed.