At Work: Solutions for Employers & Employees

By Tiffanie Benfer, Esq.

Alexander McPherson is a professor of molecular biology and biochemistry at UC Irvine. He was a recently stripped of his responsibilities and placed on unpaid leave because, as he described in his column “The Sham of Sex Harassment Training” Los Angeles Times, (11/28/08) “I have consistently refused, on principle, to participate in the sexual harassment training that the state and [his] employers seem to think is so important.
See http://www.latimes.com/news/opinion/la-oe-mcpherson21-2008nov21,0,4090949.story

Well, McPherson’s employer is not the only employer to realize that sexual harassment training is important. In fact most public and private sector employers provide sexual harassment training.

What McPherson unfortunately fails to recognize is that the training he describes “as a disgraceful sham” provides a forum for employers to remind employees that conduct that they may not identify as sexually harassing can be perceived by others as sexually harassing. Not all employees have the wisdom to understand that fondling genitals, groping breasts, rubbing up against legs, arms, etc., sharing graphic sexual fantasies, shoving hand down pants, pinning up against wall, making sexual innuendos, soliciting sexual acts, touching genitals in front of them, making lewd references about one’s sexual orientation, and unsolicited exposure to male genitalia is inappropriate for the work place. Unfortunately, employees’ resumes do not reveal to the employer whether they understand what constitutes inappropriate conduct in the work place, and until that day comes every employee must endure sexual harassment training.

While sexual harassment training may not prevent the harasser from harassing, it reiterates to all employees such conduct will not be tolerated. Importantly for employers, an effective sexual harassment policy may help insulate an employer from liability for sexual harassment claims.

It appears Columnist, Radio Commentator and blogger Glenn Sacks agrees with McPherson. In his depiction of McPherson’s stance he indicates “he’s been fired for refusing to participate in feminist sexual harassment training.” Sacks’ need to insert the word feminist in his description of sexual harassment training speaks volumes about what he thinks about sexual harassment training. See http://glennsacks.com/blog/?cat=78. I guess neither man believes that an employer should do everything in its power to prevent women from having to endure inappropriate conduct in the workplace. Thankfully, they are not the voice of management.

Posted by Tiffanie Benfer at 11:33 AM | Permalink | Comments (0) | TrackBacks (0)

The New York Times reports that 533,000 jobs were lost in November, the largest one-month decline since December 1974.

http://www.nytimes.com/2008/12/06/business/economy/06jobs.html?_r=1&adxnnl=1&adxnnlx=1228507331-YNAOQpjUJ8LVr45LIZgrIg

No doubt that this is a difficult time for both employers and employees. For employees facing layoffs, emotions are obviously running high. For employers, a reduction in force brings many possible pitfalls. An ounce of prevention in the form of careful planning and review of the decisions of managers may prevent many pounds of damage in the form of lawsuits and liability. Here are some suggestions for employers:

1. Take a careful look at the demographics of the people who will be laid off. Consider having someone independent of the managers who made the layoff decisions conduct this analysis. Make sure that employees in a protected class – older workers, women, or any particular racial group – are not being targeted disproportionately. Imagine that you will have to explain any disproportionate impact to a jury.

2. If lower level managers are told to make cuts in their departments, be sure that the decisions are reviewed by someone with more objectivity. Make sure that the reduction in force is not used by those managers as cover for an improperly motivated firing.

3. Watch for workers who may have a retaliation claim. Is there an employee who has called out wrongdoing in the company who is now slated for firing? Be aware that firing this person might be perceived as retaliatory. Is there an employee who has complained of sexual harassment or discrimination? Retaliation for raising these complaints is against the law. What about someone who just returned from FMLA leave? Someone who has asked for an accomodation because of disability? They, also, are protected from retaliation. This is another reason to have someone objective check the decisions of lower level managers.

4. Get a good release in exchange for a severance payment. Work with an attorney to be sure that the release protects the company from future litigation and that the release complies with all of the applicable laws. (For example, age discrimination claims cannot be released unless specific review and revocation times are included in the release.)

5. Find out whether the layoff requires prior notification to the employees under WARN (Worker Adjustment and Retraining Act).

6. Document everything. Document the need for the reduction in force. Document the reasons for choosing to eliminate particular positions. Document any examples of poor performance by employees.

7. Are you about to hire someone new? Think twice. How will you justify this during a reduction in force? Your former employees (or a jury) may view this as a sign that your reduction in force was a pretext for an unlawful firing. Also, be careful of firing long-term employees if you’ve just hired new ones.

8. Be sure to meet your obligations of notification under COBRA.

9. The Golden Rule is always good advice. Be as considerate as you can to the employees whom you are firing. Employees are more likely to sue if they feel that they have been treated with particular disrespect.

10. Caveat to the Golden Rule: Some managers are so uncomfortable with the prospect of firing someone that they try to rationalize it or make it sound not so bad. Off the cuff comments made during the exit interview can come back to haunt you later. Be careful if you are tempted to say something like, “Well, now you can spend more time with your children” (Exhibit A in a gender discrimination case). Equally dangerous: “You were planning to retire pretty soon anyway, weren’t you?” Here comes an age discrimination claim.

Posted by Tiffanie Benfer at 04:45 PM | Permalink | Comments (0) | TrackBacks (0)

by Tiffanie C. Benfer, Esq.

November 4, 2008 was a historic day for many Americans. They voted in their first presidential election. When I heard some of these first time voters speak about what motivated them to vote I got goose bumps. I was especially moved by individuals voting for the first time because they believed that for the first time their vote would count.

I was saddened to hear from a colleague, subsequently, that an individual lost his job because he exercised his constitutional right to vote. The Los Angeles Times also reported an incident of an employee of 20 years who was terminated because she voted during her break. Here is the link: http://articles.latimes.com/2004/dec/09/nation/na-voter9.
Many states have statutes that afford employees with the right to time off to go and vote. But, Pennsylvania and New Jersey do not provide statutory protection to the voter on voting day. In Pennsylvania there is case law that establishes it is against public policy to fire someone for jury duty. Voting could be considered a similar civic duty, which would render a termination of an employee for exercising his/her constitutional right to vote a wrongful termination.

State requirements:

Alabama—§ 17-1-5—Employees can have up to one hour if they give their employer reasonable notice; employer may designate the time when employee can leave to vote; if the employee’s shifts starts two hours after the polls open or ends one hour before the polls close, the employer does not have to give leave.

Alaska—§ 15.56.100—Employer must give paid time unless the employee has two consecutive hours before or after work to vote; no notice is required.

Arizona—§ 15-402—Employer must give paid time unless the employee has three consecutive hours before or after work to vote; employee must give one day notice; employer can choose when employee leaves to vote.

Arkansas—§ 7-1-102—Employer should arrange employees work schedule so employee has time to vote.

California—Election Code § 14000—Employer must allow time unless employee has two hours before or after shift to vote; employee must give two working days notice.

Colorado—§1-13-719—Employer must give up to two paid hours to vote if the employee does not have three consecutive hours to vote.

Connecticut—No law requiring employee time off to vote.

Delaware—15 Del. Code § 4709—If the employee has vacation time and the employer is not in critical need of the employee, the employer shall not deprive the employee of the time off.

District of Columbia—No law requiring employee time off to vote.

Florida—§ 104.081—Employer cannot fire an employee for voting; otherwise no law requiring time off.

Georgia—§ 21-2-404—Employees can take up to two hours paid leave; employer can decide when employee can leave to vote.

Hawaii—§ 11-95—Employees can have up to two paid hours, unless the employee has two consecutive hours to vote outside work hours; employee must show proof to be paid.

Idaho—No law requiring employee time off to vote.

Illinois—10 I.L.C.S. § 5/17-15—Employees can have up to two hours unpaid leave; employees must give one day notice; employer can decide when employee may leave to vote.

Indiana—No law requiring employee time off to vote.

Iowa—§49.109—Employee may have paid leave, unless employee has three consecutive hours to vote outside work; employee must give written notice; employer can designate time employee can leave to vote.

Kansas—§ 25-418—Employee can have up to two hours paid leave, unless the employee has two consecutive hours to vote outside work hours; employer may choose the time employee may leave to vote.

Kentucky—§ 118.035—Employee may have a “reasonable time” up to four hours unpaid to vote; employee must give one day notice; employer may designate when employee may take leave to vote; employer may punish employee who takes leave but does not vote.

Louisiana—§ 23:961—No law requiring employee time off to vote. An employer with more than 20 employees cannot forbid their participation in politics.

Maine—No law requiring employee time off to vote.

Maryland—33 § 10-315—Employee may have two hours paid leave; employee must provide proof he or she voted to receive pay for time.

Massachusetts—Gen. Laws ch. 149 § 178—Employees in manufacturing, mechanical, or mercantile jobs may apply for leave in the first two hours polls are open.

Michigan—No law requiring employee time off to vote.

Minnesota—§ 204C.04—Employee may have paid time off to vote in the morning.

Mississippi— No law requiring employee time off to vote.

Missouri—§ 115.639—Employees may have up to three paid hours to vote, unless the employee has three consecutive hours outside work to vote; the employee must vote to be paid for time; employer can designate the time employee may leave to vote.

Montana—No law requiring employee time off to vote.

Nebraska—§ 32-922—Employee may have two paid hours, unless employee has two consecutive hours outside of work to vote; employee must give notice; employer may designate when employee may leave to vote.

Nevada—§ 293.463—Employee may take paid leave to vote if it is not practical to vote before or after work; employee must give notice; if the employee lives less than two miles from the polling place, the employee may have one hour; if the employees lives between two and ten miles from the polling place, he or she may have two hours; if the employee lives more than ten miles from the polling place, he or she may have three hours.

New Hampshire—No law requiring employee time off to vote.

New Jersey—No law requiring employee time off to vote.

New Mexico—§ 1-12-42—Employee may have up to two hours, unless shift begins more than two hours after polls open or ends more than three hours before polls close.

New York—N.Y. Elec. Law § 3-110—If employee does not have sufficient time to vote, he or she may take up to two paid hours, unless he or she has four consecutive non-work hours prior to or after shift when polls are open; employee must give notice of at least two days, but not more than ten days, before the election; employers must post notice of these provision not less than ten working days before the election.

North Carolina—No law requiring employee time off to vote.

North Dakota—N.D. Cent. Code § 16.1-1-02.1—Encourages employers to allow employees time off to vote if regularly scheduled to work while polls are open.

Ohio—§ 3599.06—Employee allowed “reasonable amount of time” to vote.

Oklahoma—title 26 § 7-101—Employee may have up to two hours, or more if employee lives far away from polling place, unless employee shift starts more than three hours after polls open or ends more than three hours before polls close; employee must give one day notice; employer may designate time employee may leave to vote.

Oregon—No law requiring employee time off to vote.

Pennsylvania—No law requiring employee time off to vote.

Rhode Island—No law requiring employee time off to vote.

South Carolina—No law requiring employee time off to vote.

South Dakota—§ 12-3-5—Employee may take up to two paid hours, unless employee has two consecutive non-working hours; employer may designate when employee leaves to vote.

Tennessee—§ 2-1-106—Employee is allowed a reasonable time up to three hours, unless shift starts three hours after the polls open or shift ends three hours before polls close; notice must be given by 12 p.m. the day prior to the election.

Texas—§ 276.004—Employer may not refuse to allow employee time to vote, although no time limit is specified, unless employee has two consecutive hours of non-work time while polls are open.

Utah—§ 20A-3-103—Employee may take up to two hours at the beginning or end of his or her shift, unless employee has three consecutive non-work hours; employee must give notice; employer can decide when time taken to vote.

Vermont—No law requiring employee time off to vote.

Virginia—No law requiring employee time off to vote. § 24.2-118.1—Employers may not fire or charge sick or vacation leave for employees who serve as election officers, provided the employee gave reasonable notice.
Washington—§ 49.28.120—Employer must arrange employees’ schedule to allow sufficient time to vote, unless employee has two consecutive non-work hours while polls are open.

West Virginia—§ 3-1-42—Employee may have up to three paid hours to vote, unless employee has three consecutive non-work hours while polls are open; leave is paid only if employee votes; employee must give three days notice. If the employee works in essential government, health, hospital, transportation, communication services, or is in an industry requiring continuous operations, the employer may specify the time off for an employee to vote.

Wisconsin—§ 6.76—Employee may have up to three unpaid hours; employee must give notice; employer may designate when employee may take leave.

Wyoming—§ 22-2-111—Employee may have one hour paid leave, unless employee has three consecutive non-work hours while polls are open; leave is paid only if employee votes.

Posted by Tiffanie Benfer at 12:15 PM | Permalink | Comments (0) | TrackBacks (0)