Your Employee Matters

An employee is entitled to long-term disability benefits when she’s afflicted with “sick building syndrome” and can’t work in the large office building required by her job, according to a recent federal appeals court ruling. The National Safety Council defines sick building syndrome as occurring when occupants of a building complain of health problems seemingly linked to time spent in a building, but no specific illness or cause can be identified. Symptoms include headaches; eye, nose, and throat irritation; a dry cough; dry or itchy skin; dizziness and nausea; difficulty in concentrating; as well as fatigue and sensitivity to odors. Those who suffer from this syndrome often feel relief soon after leaving the building.

In the case before the federal court, a partner at a large law firm developed severe headaches, fatigue, and respiratory problems that improved when she left the high-rise office building where she worked. She tried working from home, but her employer told her that doing so on a permanent basis didn’t mesh with the nature of her work. The attorney then sought long-term disability benefits from the law firm. The firm’s Workers Comp carrier denied her claim, arguing she could work from home or find work at a smaller firm, which would likely be located in a smaller building, as she had earlier in her legal career.

However, a federal appeals court disagreed, holding that large employers must be located in spaces large enough to accommodate all their employees. Even if the plaintiff could find equivalent employment, it would probably be with an employer located in a large office building environment.

According to the court, the insurance carrier ignored evidence that the woman could not work from home or at a smaller firm. Instead, insisting that she should work from home. The court also said that because of the woman’s area of expertise — commercial real estate law — working at a smaller law firm wasn’t a viable alternative. To read the case, click here.

Ray v. UNUM Life Insurance Co., 10th Cir. No. 05-1284

More and more companies are restricting employee use of personal cell phone cameras at the office for fear that the ubiquitous camera phones could create legal headaches. Improper photos at work might lead to job-related claims, as well as compromise company trade secrets.

For example, employees could take inappropriate photographs of co-workers without their permission, and the secret photos or videos could amount to sexual harassment or an invasion of privacy. Even if the picture-taking doesn’t create a legal problem, it could still make some employees uncomfortable or embarrass them if photos or videos appear on such Web sites as MySpace or YouTube.

Another worry relates to a soured working relationship. A disgruntled employee might want to embarrass a boss or gather evidence for filing a legal claim. All sorts of photos — from a supervisor getting upset with an employee to overall working conditions — could become fodder in an employment dispute.

For companies with patented products and closely-protected manufacturing processes, any information leaked to a competitor might be extremely damaging. Companies need to protect against cell phone cameras used to copy confidential documents or record other internal information.

What can an employer do? A big first step is to adopt a written policy that controls employee use of cell phone cameras at work. Determine which employees need cameras as part of their jobs. It might be a good idea, for example, if truck drivers carried cameras in case they have to photograph an accident for insurance purposes.

Employees permitted to use camera phones at work should agree that the employer has the right to review all photos and videos on the camera, and can delete any work-related photos. The employer should also prohibit employees from posting work-related photos on the Internet. For those workers who don’t need to use camera phones at work, it’s okay to ban their use outright.

The easiest way to address camera phone use is to update your employee handbook. Once that’s done, follow up with either a company-wide memo or a discussion with employees about why camera phone use is being restricted. The key is enforcement. Don’t develop the policy unless you’re willing to enforce it in every instance that it’s violated.

The standard mileage reimbursement rate for employees who use their own cars for business purposes will increase from 48.5¢ per mile in 2007 to 50.5¢ per mile in 2008, the Internal Revenue Service announced. Each year, the IRS issues standard mileage rates used to calculate the deductible costs of operating an automobile for business, charitable, medical or moving purposes.

Employers who use the IRS standard rate to reimburse employees may deduct the reimbursement as a business expense. If employers use the approved rate (or a lower rate), the IRS considers that requirements to substantiate and adequately account for the expense are satisfied without extensive documentation of actual expenses.

As of January 1, 2008, the standard mileage rates for the use of a car (including vans, pickups or panel trucks) will be:

• 50.5¢ per mile for business miles driven
• 19¢ per mile driven for medical or moving purposes
• 14¢ per mile driven in service of charitable organizations

The standard mileage rate for business is based on an annual study of the fixed and variable costs of operating an automobile. The IRS noted that a taxpayer may not use the business standard mileage rate for a vehicle after using any depreciation method under the Modified Accelerated Cost Recovery System (MACRS), after claiming a Section 179 deduction for that vehicle, for any vehicle used for hire, or for more than four vehicles used simultaneously.

The Secretary of Labor sued Florida-based Hotel Oasis and its president, Lionel Lugo-Rodriguez, for failure to pay minimum wage, to pay training time or meeting time held during non-working hours, and to pay appropriate overtime. The federal district court held Lugo personally liable for the “out-of-pocket” losses of the plaintiffs, as well as for liquidated damages. In agreeing with the trial court, the appellate court stated, “Lugo was not just any employer with some supervisory control over employees. He was president of the corporation and had ultimate control over the company’s day-to-day operations. In particular, it’s undisputed that Lugo was the corporate officer principally in charge of directing employment practices, such as hiring and firing employees, requiring employees to attend meetings without pay, and setting employees’ wages and schedules. He was thus instrumental in ‘causing’ the corporation to violate the FLSA.”

The court also noted that a corporate officer may be held liable even if they have no corporate ownership interest. To read the entire case, click here.

The California Appellate Court recently let a case proceed against Google for age discrimination. Google fired the 54-year-old plaintiff, alleging in part that he “was not a cultural fit.” He was also told that his ideas were “ancient,” “too old to matter,” “obsolete,” and that he was “lethargic,” “sluggish,” and “lacked urgency.” In addition, the plaintiff’s expert showed a statistical disparity when it came to performance ratings and bonus payments.

Whether he succeeds in his case will be up to a jury. If it does, the verdict would be high. The largest average verdict is for a white male over 40. Either way, the case carries these lessons for all employers.

Lessons learned:

1. Use “age-neutral” language where possible.
2. Don’t hire cultural misfits. The risk on the termination side vastly outweighs any benefits on the hiring side.
3. Know your statistics. Don’t let an outsider clue you in to disparate impact claims.
4. Keep a consistent story. Google’s reason for the termination changed over time, undermining its credibility with the court.

To review the case, click here.

In light of well-publicized events years ago, the U.S. Postal Service adopted a zero-tolerance violence policy. A recent case tested the limits of that policy. Mr. Jones had been dating and going to work with a fellow postal worker, Ms. Ortiz, for many years. Eventually they broke up, but continued to share rides to work. One day, she chose not to pick him up for work — which upset him. Depending on whose story you believe, Jones came to work upset and intended to let Ms. Ortiz know how upset he was. According to the court, “There was little doubt that Jones’s actions, as an initial matter, fell within the scope of the zero tolerance policy.”

The arbitrator in the underlying case explained, “Despite his denials of having cursed the involved co-worker, called her a bitch, or even to have forced her arm from his face, and/or pushed her against a mail container, his admissions of having entered her work area in a ‘confrontational posture’, having ‘scolded her’ and having ‘touched her’ in doing so, had been sufficient ‘misconduct’ for disciplined purposes.” However, the arbitrator felt that USPS went too far and that a 30-day suspension would have been enough — so Jones was reinstated with back pay.

Not satisfied, Jones then sued USPS, arguing that he was retaliated against under the ADA and Rehabilitation Acts. He alleged that his history of back problems caused him to be accommodated by doing a “torn mail handler” job and that the USPS was pressuring him to give unreasonable medical proof that it was necessary for him to stay in that position.

The court entertained the plaintiff’s argument that he was treated differently under similar circumstances than other employees simply because of his need for disability accommodation, and that his termination for the “violent act” was really a pretext. However, the court eventually ruled that since Jones could not isolate the disability discrimination as the sole reason for his termination that his ADA claim failed.

This case carries three lessons:

1. It’s not a bad idea to have a zero-tolerance workplace violence policy.
2. Any time you fail to follow any policy consistently, you’ll open yourself up to discrimination-type arguments.
3. Because a plaintiff will always argue that the proffered reason for termination is pretext or retaliation you’d better have documentation to back it up.

To read the case, click here.

There’s an axiom among lawyers that “bad cases make for bad law.” What follows is one of those cases.

The plaintiff, Miguel Arrieta-Colon, sued Wal-Mart and a handful of his supervisors and managers because he was ridiculed after receiving a penile implant used to correct a sexual dysfunction. Apparently the implant itself left the plaintiff with the appearance of a semi-erection.

The plaintiff alleged that he was subject to a hostile work environment because he was constantly harassed and ridiculed by both supervisors and co-workers and, despite his complaints, no corrective actions were taken. The jury eventually awarded $76,000 in compensatory damages and $160,000 in punitive damages because Arrieta-Colon had to quit in light of the harassment.

This decision raises three important points:

1. The defense attorneys blew the opportunity to argue whether or not the plaintiff had an actual disability or met the “regarded as” test under the ADA. Because the attorneys failed to use this argument on appeal the court could not consider it.
2. The plaintiff was able to move forward with a constructive discharge case because Wal-Mart failed to take any action to prevent his harassment.
3. Punitive damages were awarded against Wal-Mart in large part because its human resource officer took the position that “boys will be boys” and didn’t interfere with the actions taken by the store’s management.

You can read the case by clicking here.

The other day, I suffered from a retail experience that we’ve all encountered. I was at the counter ready to check out and there were two management types behind the counter “busy doing things,” as they were trying to find another clerk to write me up. It literally took a PA announcement and then another minute or so to get someone behind the counter.

I don’t know about you, but if I were the owner of that store and watched this going on, I would be horrified. The most important thing to that store’s survival — its customer, willing to spend money now — was completely ignored by two able-bodied employees. I don’t care what they were doing. I don’t care what their title was. They should have stopped and gone to the counter. Everything else that business does is secondary. As you can imagine, I have no desire to ever shop at that store again.

As Dr. Deming was fond of saying, “Management tends to recycle ignorance.” This experience is a classic example of what he meant. How can employees possibly know how to do better when management doesn’t know to do better?

Unfortunately, much of the same type of thing goes on in HR. Instead of focusing on the strength of the personnel relationship, we build up a lot of administration around it — our own little bureaucracies — with the same horrible consequences. Do your HR managers focus on their “busyness” at the expense of what’s really important? Take a look at this month’s Form of the Month: The 12-Question Survey. I’d be curious to see how your HR person would answer it.