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Should Workplace Bullying be Unlawful?
Tomorrow I will be speaking on a panel with other attorneys at the American Bar Association's Labor and Employment Law Mid-Winter meeting in Miami about Workplace Bullying.
Eight states are currently considering anti-bullying legislation. The text of the draft legislation in these states is either identical to or based in large part on the Healthy Workplace Bill--created by the Workplace Bullying Institute. Not surprisingly, New York seems to be best positioned to actually pass such a law.
Do we need anti-bullying legislation? Consider the following:
The Society of Human Resources Management conducted a 2011 study in which half of all employers reported knowing about bullying in their workplaces. Most of the reported bullying consisted of shouting, cursing, name-calling, malicious gossip, rumors and lies. Twenty percent of the bullying occurred on social media.
In one of my first jobs here in Chicago I worked for a managing partner who epitomized a bully. I was a brand new lawyer and he regularly screamed and cursed at me, called me names like stupid and idiot, got drunk in the office (which increased his screaming and insults) and further berated me and threatened my job just for fun. He did this to other young lawyers (both male and female) too so it was not personal to me but, at the time, it sure felt like it. I left after a year of working there solely because of his behavior and the awful working environment it created. His fellow partners knew he acted like this but did nothing to stop him. Years later, I have no doubt that he is still doing this. Silver lining--that ridiculous working environment is what lead me to want to represent employees.
Opponents of anti-bullying legislation think that tolerating such behavior should all be in a days' work and that anything that would ban such conduct would mean mandating civility in the workplace. Opponents also worry that, if passed, these statutes would lead employees to bring legal claims every time a manager or co-worker raises his voice or looks at them wrong.
An examination of the HWB reveals, however, that it is not so scary. In fact, in an effort to actually get the bill passed, it seems the drafters have gone out of their way to create hurdles for plaintiffs seeking to bring these claims. For one, the definition of bullying is a steep one and, for another, aggrieved employees would have to show medical evidence of harm resulting from the bullying (something that is not required by any of the anti-discrimination laws).
So should we have anti-bullying legislation? As an employee rights attorney I certainly think so and having previously worked with a bully I, personally, understand the toll that such a workplace can take on you. I was fortunate in that I had a law degree and could easily find another job. A lot of employees--especially these days--are not so fortunate.
The proposed legislation of the HWB does not mandate civility in the workplace. It seeks to eliminate abusive treatment. And, regardless, workplaces should be civil, shouldn't they? We are not a bunch of Neanderthals are we? Being an employee should not mean leaving your dignity at the door nor should it mean risking your health to keep your job. In our practice we have first-hand knowledge of the stress-induced illnesses that can result from working in a hostile working environment. We see it with our clients every day.
More information on anti-bullying legislation can be found at www.healthyworkplacebill.org. If you are interested in supporting such legislation, this website will give you information about how to contact your representatives.
Yahoo! Ban on Telecommuting – Should Other Companies Follow Suit?
Many have likely heard about the latest decision from Marissa Mayer, CEO of Yahoo!, to implement a new company policy prohibiting employees from working from home. This announcement has already sparked a good deal of public debate, especially from the business community, as to whether such a policy will actually benefit or inhibit worker productivity and company profitability.
From an employment lawyer’s perspective, this decision also begs questions as to whether such a policy is likely to have some discriminatory implications.
While many workers, both men and women alike, take advantage of work-from-home /telecommuting policies, these policies often lend themselves to accommodating specific subsets of the working population—subsets who may fall under statutory protections. For instance, telecommuting or work-from-home arrangements may constitute a reasonable accommodation for individuals with disabilities. These types of circumstances may arise, for instance, where an employee undergoes surgery and requires a period of post-surgery recovery time at home or where an employee suffers from a condition like cancer that requires regular or periodic treatment such as chemotherapy that does not prevent the employee from performing the essential functions of his or her job, but may otherwise interfere with a typical 9 to 5 day in the office.
And, in our tech-savvy workplaces where people can conduct business remotely through servers, email, phone, Skype, video conference, or similar platforms, working from home has become increasingly feasible and reasonable. In its Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, the EEOC has long recognized that working-from-home can constitute a reasonable accommodation for qualified individuals with disabilities.
There are certainly valid arguments as to why Yahoo! put forward this prohibition on telecommuting. Face-to-face interaction among employees can lead to increased solidarity, teamwork, collaboration, morale, innovation, and creativity among other benefits. However, it bears noting that any policy prohibiting telecommuting such as Yahoo’s will also need to carve out exceptions for employees where needed to avoid running afoul of statutes such as the Americans with Disabilities Act.
Furthermore, companies that are not located in more, temperate climates like California may need to consider other implications. When employees face inclement weather conditions such as those that, at times, transpire in Chicago or widespread illnesses like we have seen during this year’s flu season, blanket bans on telecommuting that prevent employees from minimizing their risks to such exposures may subject employees to increased health and safety hazards that could not only subject employers to unwanted liability, but may also actually impair worker productivity and efficiency.
Best Buy recently also jumped on the Yahoo! bandwagon and announced its intention to eliminate its work-from-home program.
As Yahoo! and other companies implement such telecommuting bans, it will be interesting to see how they apply these policies to employees within protected categories and honor any other legal obligations that may arise.
Representative Schakowsky Introduces the Part-Time Worker Bill of Rights Act of 2013
First, the Act seeks to eliminate the requirement of the Family & Medical Leave Act ("FMLA") that an individual work 1,250 hours over the previous 12 months to be eligible for protected FMLA leave. The FMLA is the federal law which provides that employers with 50 or more employees provide up to 12 weeks of protected leave to employees who have worked for the company for more than 1 year and for at least 1,250 hours in the preceding year. The leave is provided to care for, amongst other categories, the worker's own serious health condition, the worker's child or other family member's serious health condition, maternity leave, and paternity leave.
Unfortunately, because of the 1,250 hour requirement, most part-time workers are not entitled to the protected leave. This often results in part-time workers losing their jobs or being disciplined at work because they or their loved ones become ill and their attendance suffers. Representative Schakowksy's proposed legislation would remove that hour requirement so that any worker, full-time or part-time, who had worked for a company for at least one year would be entitled to FMLA protected leave.
Next, the Act seeks to eliminate the incentive for employers to refuse health insurance coverage to part-time employees. As you may recall, the Affordable Care Act penalizes employers who fail to provide health insurance coverage to full-time employees. Because there is no similar penalty pertaining to part-time employees, many fear that employers will simply start to decrease their employees' hours to just below the threshold of 30 hours, so that their full-time employees qualify as part-time employees and no penalty would apply. The Part-Time Worker Bill of Rights would create a similar penalty to employers who fail to provide insurance coverage to part-time employees which would hopefully have the two-fold effect of 1) encouraging employers to provide health insurance to their part-time staff and 2) discouraging employers from decreasing full-time staff hours.
There are a lot of great protections that could come of this Act were it to enacted and we strongly encourage you to call your congressional reps and urge that the legislation be brought up for a vote and passed. Perhaps more importantly, share this information with your friends and family out of state and help us try to gain more widespread support for the Act! To read the full text of the Act, click here: http://www.gpo.gov/fdsys/pkg/BILLS-113hr675ih/pdf/BILLS-113hr675ih.pdf.
Discrimination Against the Unemployed
There was another depressing article today about the difficulties individuals are facing finding work while unemployed, this one out of New York. Check it out at:
Unfortunately, this isn't new news but it is an excellent reminder that we need to push our representatives to pass new legislation in Illinois prohibitting discrimination against the unemployed. Call your legislators about SB 2153 today!
Supreme Court Will Again Address the Question of "Mixed Motive" Versus "But For" Causation in Employment Cases
Whether Title VII's retaliation provision and similarly worded statutes require a plaintiff to prove but-for causation (
i.e., that an employer would not have taken an adverse employment action but for an improper motive), or instead require only proof that the employer had a mixed motive (i.e., that an improper motive was one of multiple reasons for the employment action).In a 2009 decision (Gross v. FBL Financial Services, Inc.), the Court ruled that the Age Discrimination in Employment Act required but for causation (as opposed to mixed motive) and, since that time, the Federal Courts of Appeals have been divided as to whether that standard of causation should apply to all employment related claims (in other words: disability discrimination claims, retaliation claims, etc.) or whether the ruling should be limited to age claims.
The Seventh Circuit Court of Appeals, the appellate court presiding over our local federal district courts, has repeatedly applied Gross to other types of employment claims, including claims under the Americans With Disabilities Act and First Amendment Retaliation Claims under Section 1983 - making the burden of proof for those claims much more difficult. However, a number of other Circuit Courts of Appeals have refused to require but for causation in the context of other types of employment claims.
The Supreme Court is now poised to rule on whether Title VII retaliation claims require but for causation and, presumably, to clarify for all of the Circuits how far the Gross decision should reach. This is one to keep an eye on as the Court's decision is sure to cause waves, regardless of which way the ruling falls.
I can tell you, though, that these employee advocates will be keeping their fingers crossed for a win for motivating factor causation!
Catch Twenty-Two for Workers with the Flu.
I heard a really interesting news piece on my way into work this morning highlighting the difficulty for workers suffering from the flu who have no paid sick leave to utilize. By all accounts, this is one of the worst flu seasons the country has seen and public health officials are urging the sick to stay home from work to avoid spreading the virus further. But for those with no paid sick leave, heeding that advice and choosing to stay home sick could mean risking their jobs.
Click here to read the full article which makes it clear why we need to focus on ensuring that every worker in the country has access to paid sick leave: http://www.wbez.org/sections/work/flu-upon-us-call-sick-or-not-call-sick-104918.
Kristin Case and Kate Sedey Again Voted "Rising Stars" By Super Lawyers
You can visit their Super Lawyer profiles at:
http://www.superlawyers.com/illinois/lawyer/Kristin-M-Case/cfd6bfb4-5d4d-42af-bff3-4eed18b39076.html
http://www.superlawyers.com/illinois/lawyer/Kate-Sedey/fe6951ed-193d-4420-b053-84030edb9a7c.html
For more information about the Super Lawyers organization or the Rising Star selection process, please go to:
http://www.superlawyers.com/about/selection_process.html
Employers Should Think Twice before Demanding Access to their Employees’ Facebook Pages!
It has become commonplace for tech-savvy employers to use Facebook, Twitter, LinkedIn and other social media to vet job applicants and monitor their current workforce. As plaintiff’s employment lawyers, we have seen employers use social media to drudge up claims of misconduct, violations of company policy, breaches of contract, or even violations of law to support disciplinary investigations, termination decisions, and lawsuits or counterclaims against their employees or former employees.
However, a recent amendment to the Illinois Right to Privacy in the Workplace Act, which takes effect, January 1, 2013, should make employers think twice before relying on social media when gathering information about prospective and current employees. The Amendment makes it “unlawful for any employer to request or require any employee or prospective employee to provide any password or other related account information in order to gain access to the employee’s or prospective employee’s account or profile on a social networking website or to demand access in any manner to an employee’s or prospective employee’s account or profile on a social networking website.” 820 ILCS 55/10(b)(1). This newly-adopted prohibition adds quite a bit of teeth and clarity in protecting employee privacy rights in our social media culture, where clear expectations of what is private and what is not seem increasingly vague and nebulous.
Employees should note that this Amendment does not prohibit employers from obtaining information about prospective or current employees that already exists in the public domain or on social media accounts that are not password protected. This new law highlights the importance of always choosing the strictest privacy settings on any social media account. If employees do so, they should be protected under this new amendment.
Another Great Decision - this one for workers with disabilities!
Great New Case Law for Employees Bringing FMLA Interference Claims
A new Seventh Circuit decision, Pagel v. TIN, Inc., 2012 WL 3217623 (7th Cir. Aug. 9, 2012), creates great case law for employees bringing FMLA interference claims. The plaintiff in the suit, a sales employee, began suffering shortness of breath and other unexplained symptoms in the summer of 2006. Between July and October, he was hospitalized on several occasions to undergo tests and was ultimately diagnosed with septal wall ischemia. During this time, Mr. Pagel missed several days of work for related doctor’s appointments and tests. Each time, he notified his supervisor of his need for leave and gave his employer enough information regarding the nature of his symptoms, tests, and treatments that the employer could have determined that he was suffering from an FMLA-qualifying condition.
Two months into this time frame and just days before a scheduled angioplasty, Mr. Pagel's boss called a meeting with him to discuss Mr. Pagel's declining performance and decreased productivity as compared to his peers. Significantly, the numbers which his supervisor had used to assess his per-day sales calls and other daily performance metrics included days on which Mr. Pagel had been absent under FMLA-protected leave. Regardless, Mr. Pagel was told that if he did not improve his performance, he faced possible termination. Several weeks later, Mr. Pagel's supervisor called to schedule a sales call observation (or "ridealong") for the following day, despite that company policy required that sales people be given one week's advance notice of such observations. Ultimately, Mr. Pagel, who had been undergoing a pet scan the day his boss notified him of the ridealong, was unable to fully prepare and the sales call was a failure. One week later, Mr. Pagel was terminated for his declining productivity and his poor performance on the ridealong.
Mr. Pagel filed suit alleging that his employer had interfered with his FMLA rights and retaliated against him for exercising those rights. The lower court granted summary judgment in favor of the employer, holding that Mr. Pagel's poor performance on the ridealong was sufficient justification for his termination. However, the Seventh Circuit reversed that decision, making some important statements about FMLA interference claims.
First, the Court explicitly stated that "the FMLA does not require an employer to adjust its performance standards for the time an employee is actually on the job, but it can require that performance standards be adjusted to avoid penalizing an employee for being absent during FMLA-protected leave." This means that an employer cannot judge an employee's productivity or performance over the course of any given day, week, or month without first accounting for any time which the employee was out of work using FMLA-protected leave. While this seems like a no-brainer, I can't tell you the number of clients we have had whose employers fail to take that off-the-job time into consideration when assessing performance and then justify terminations with skewed or improperly calculated data.
Second, the Court acknowledged that when an employer holds an employee using FMLA leave to higher standards than other employees (in this case giving Mr. Pagel just one day to prepare for a ridealong rather than the required week), it looks "suspicious" and could be interpreted as "setting [the employee] up to fail." The Court held that a jury should be allowed to consider this evidence and make their own reasonable interpretations as to whether the employer was merely looking for a way to justify the termination. This, again, seems to be explicit court recognition of a common sense notion - that when an employee is not given adequate (or at least equal) time to prepare or perform, that could be evidence that an employer does not want to see that employee succeed - and, at a minimum, a plaintiff should be allowed to present that evidence to a jury and let his peers consider the issue.
The FMLA often presents complicated and thorny legal issues over which employers and employees can be legitimately confused. This decision, however, helps interpret the Act with a straightforward, common sense approach; one which I hope will help employers better implement the Act's protections and employees better understand their rights.
Click here to read the full decision:
http://scholar.google.com/scholar_case?case=12755460087412542482&hl=en&as_sdt=2,14