Except for a few bad experiences (every company has some bad apples and law firms are no exception), I have found most opposing counsel at Littler to be professional and relatively pleasant to deal with under the circumstances.

You will not often hear me singing the “enemy’s” praises, but Littler recently received a perfect score (100) on the 2009 Corporate Equality Index.  This rating is given each year by the Human Rights Campaign Foundation, which is an advocacy group for gay, lesbian, bisexual and transgendered (”GLBT”) Americans.

I find it refreshing that a law firm dedicated to defending employers who have been accused of violating their employees’ rights has taken the steps necessary to discourage discrimination “at home”.

Employment defense counsel are always “talking the talk” to me about how their clients are committed to diversity, non-discrimination, etc. and would have “never” done what we are accusing them doing.

It looks as though Littler actually “walks the walk” (even if their clients do not always follow their example).  Congrats on a job well done.

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Discrimination | Harassment | Policy : Opinion | Sexual Orientation Discrimination

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This is because all contracts in California have an “implied covenant of good faith and fair dealing”.  This is one of the least sexy concepts in contract or employment law, so I will summarize it quickly.  This doctrine acts as a check on parties in contracts where one side has the right to exercise broad discretion that effects the other party’s rights.  The law says that in such a case when the party exercises their discretion it generally must be done “fairly”.

This is especially important in our case because on Wall Street investment bankers and other professionals are usually paid a (relatively) small salary and then an extremely large annual bonus at the end of the year.  In our case, the employee was used to making over $750,000 and suddenly his employer decided at the end of last year to give him a bonus of less than $50,000 for 2007 with no warning whatsoever and despite the fact that he was performing better than his peers.

It turns out that the employer was planning to lay him off in a few weeks, so they decided to give his usual bonus to his co-workers.  This is the classic case where the implied covenant comes up in California employment law cases.  If an employee performs acceptable work during the year with the expectation that he would receive a bonus similar to his peers and what he received in prior years, the employer does not exercise discretion in “good faith” by paying him hundreds of thousands of dollars less than they do to similar employees.

This might be an extreme case for most employees, but the same concepts can be applied to any bonus and even Christmas bonuses in certain circumstances.

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At the end of the consultation he said he was surprised at my response because he had spoken to another employee-rights firm in Southern California where they told him that he had a “great” case and wanted to pursue it for him.  While I know I may not always be right about the merits of a case, in this situation I was very confident in telling him that based on what he was telling me his case was definitely not “great” and likely non-existent.

I was suspicious about the situation, so I asked him about the other attorney he had seen and what sort of fee arrangement he was offered.  The firm had actually offered to represent him in exchange for (1) a large retainer fee (likely around $1-2,000) AND (2) an hourly fee agreement.  Of all the employee-rights attorneys I know in the California, this is the first firm I have seen that charges hourly fees.  Most other firms work on a contingency fee where the client pays nothing unless they recover damages on the client’s behalf.

This area of the law is unique in that almost all of our clients are people who recently became unemployed and wonder if they will be able to pay their mortgage and keep their house, much less substantial attorney’s fees.  We work almost entirely on contingency, although we do represent a few hourly clients, but usually just to review employment, severance and non-compete agreements.

Because attorneys in California generally charge $350-500 per hour, contingency fees are usually the only way a client can pursue these types of claims.  Fees add up very quickly and in an hourly billing arrangement clients can end up owing their attorney tens-of-thousands of dollars even if they lose.  This also creates a conflict of interest where it is actually in the attorney’s best interest financially to drag a case out, perform unnecessary work and bill more hours.  Debates over these issues are raging in the legal community, such as in the article The Billable Hour Must Die published last year in the American Bar Association Journal.

The bottom line is that if you speak to an employee-rights attorney and they offer to take your case either (1) on an hourly basis or (2) on a contingency fee but also with a large up-front retainer fee, you should be wary.  At the very least you should get a second opinion from another firm and ask how they would charge to represent you.  Our firm, as well as others in California offer free consultations that can be done over the phone.

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Attorney's Fees | Attorney-Client Issues | California Employment Law

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A good example of this is Harman v. San Francisco (2007) 158 Cal.App.4th 407.  In that case, the jury ruled that the defendant had a policy of “reverse” discrimination against white males, but only awarded the employee $30,300 in compensatory damages, including lost wages, etc.  However, the court also awarded Mr. Harman over $1 million in attorney’s fees.

The case lasted almost eight years between the trial and appeals, but in the end the employee prevailed.  When a client wins and is entitled to attorney’s fees, the court evaluates how much time the attorney spent on the case and sets an hourly rate comparable to similar attorneys in the community.  Unless the attorney performed substantial, time-consuming tasks for the case which were clearly unnecessary, all of the time will be reimbursed by the defendant.

Although several management-side employment attorneys were outraged by this decision, the employee (and his attorney) should not be penalized for spending the necessary time on the case to win.  While our firm does a great deal of litigation and we do not mind “fighting”, we start almost every case with a good-faith attempt at exploring informal settlement options with the defendant employer.  Both sides should want to do this for the simple fact that once attorney’s fees start accumulating, both sides become more adversarial and “invested,” so they feel they have to “win”.

Most savvy employment defense counsel are aware that where a claim appears to be valid, it is very much in their client’s best interest to at least try and resolve the case quickly.  This case is a prime example of a situation where the defendant likely could have settled for a fraction of what they ended up paying, yet they instead chose to “fight” and paid the price.

I am not suggesting that employees (or attorneys) should pursue (or refuse to settle) cases solely to rack up substantial attorney’s fees, but if a case has merit the employee should not have to wonder if their lawyer’s bill will be more than what they actually recover in the case, which is the case is many other parts of the country.

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The fact that women disproportionately care for children in the United States is likely a direct contributor to the fact that women still tend to make less money for doing the same work, despite the EPA and other laws.  This is because such discrimination is often subtle.

For example, a woman might take time off to care for children and when she returns to work make less money than her male counterparts because they have more “seniority”.  While this might be legitimate, “seniority” is sometimes used as a synonym for “loyalty” or “dependability” in reference to the possibility of the woman leaving again to have another child or as punishment for leaving before.

Additionally, mothers who remain in the workforce after having children often start working part-time hours and the other employees often receive a higher rate of pay for “full-time” work.  Reducing a part-time worker’s salary is not per se illegal, but there are certainly pitfalls.  For example, if mothers who switch to part-time have their salary reduced, then it still must be comparable to part-time male workers.  Also, if a woman cuts her hours by 50% and her pay is reduced by 70%, then it can be argued she is being “penalized” for working less.

While not always illegal, an employer would likely have to prove that this is the same rate ALL part-time workers have their wages reduced by and/or that there is a legitimate business reason for doing so.

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California Employment Law | Family Status Discrimination | Gender Discrimination | Pregnancy Discrimination | Wages and Hours

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In these situations, the employer’s concerns about how an employee or job applicant’s home life could affect their job performance are often valid in theory, but not in application. In cases such as these the employer only assumes that the employee will not be willing or able to do the job and has no reason (other than stereotypical views of women) to make their assumptions.

One common example is where an applicant is not hired because the employer assumes she will not be willing or able to work the long hours the job requires because of her (assumed) duties at home. However, it is quite possible that the husband/father or another family member has taken on some of the childcare duties to allow her to work more. Because this decision relies on the employer’s stereotypical assumptions about women, this could constitute illegal discrimination.

It is true that it might be valid in certain cases not to hire an employee because she cannot perform the job due to family responsibilities, but the employer would have to have some actual proof on which to base their decision. For example, if during the interview the employer mentioned the job would require her to work no less than 80 hours per week and the applicant responded that she could not possibly work more than 40 hours with two kids at home, then this could be a valid reason not to hire her.

One oft-cited case of this type is Trezza v. Hartford, Inc., 1998 WL 912101 (S.D.N.Y.). In that case, an attorney was not even considered for a promotion because it would have required extensive travel. Her employers simply assumed that she would not be interested in the position because of her family and promoted a less-qualified man instead.

The employee was also told that once her husband made enough money she would be “sitting at home eating bon bons” and the company’s vice president commented on the “incompetence and laziness of working mothers”.

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There are many ways family status discrimination can happen in the workplace, some of which are very subtle and difficult to prove. Other types are not subtle at all, such as the topic of today’s post, which is what I call “Moral Stereotyping”.

Moral Stereotyping Defined

Generally in family status discrimination claims the employer is largely concerned about how the employee’s caregiver responsibilities affect them, such as increased absences, less dedication to the job, less focus, unreliability, etc. However. one of the unique aspects of moral stereotyping is that the employer is often more concerned about the well-being of the employee, her child her family or other paternalistic rationale.

Yes, it is true that even in 2008 there are many employers out there who still believe a woman “belongs” at home and that their primary duty is to raise children even to take care of their husband. In these situations, employers might even terminate an employee (to their own detriment) in an effort to force the employee to do what they believe is “right”.

Some commonly-cited motivations based on this theory are discussed below.

“Women Belong at Home”

The notion that a woman simply “belongs at home” is the most common way in which these issues are expressed by management. This is a prime example of the sorts of gender stereotypes that foster discrimination against these employees.

The motivation here is not necessarily what is best for the employee or her child, but instead what the employer thinks she “should” do based on traditional gender roles. These employers think that even if the wife makes twice as much as her husband, she should quit her job to raise the children.

A more poignant way of expressing this can be found in Knussman v. Maryland, 272 F.3d 625 (4th Cir. 2001), where the employee was simply told “God made women to have babies”. Speaking of God, several employers do cite their religious views as a basis for this discrimination, which exposes the employer to an additional claim for religious discrimination.

“Children Need Their Mothers”

The traditional notion that children must spend as much time as possible with their mothers is certainly ingrained in our society. This category of cases usually involves an employer who believes they know what is best for the child and believes they are acting in the child’s best interest when they terminate or failure to hire the employee.

For example, in Moore v. Alabama State University, 980 F.Supp. 426 (MD Ala 1997), the employee’s supervisor told her he believed women should stay at home with their family and denied her a promotion because the new job would involve too much travel for a “married mother”, despite the fact that she applied for the job and had already worked out a plan with her husband to accommodate the travel.

Moral stereotyping is not limited to male management employees. Often these issues can come into play when an employee’s female supervisor either has grown children or grandchildren and holds strong views on these issues they are not afraid to make known.

A variation on this theme is where an employee’s supervisor expresses their belief that placing a child in day care is harmful to their development.

Men are the Breadwinners

Gender stereotypes are also commonly used against men. It is no longer unusual for a husband to drop down to part-time when a child is born while his wife, who might make more money than he does, continues to work full-time.

In certain testosterone-fueled workplaces, this can lead to harassment of “Mr. Mom” by co-workers or he might simply be denied the opportunity to work part-time, even though females are allowed to do so.

This type of claim is rapidly becoming more common as working mothers continue to enter the workplace and men volunteer to help with caregiver duties.

“Reverse” Caregiver Discrimination

Occasionally I come across a case where an employee has suffered “reverse” caregiver discrimination.

For example, if a layoff occurs in a company and a supervisor decides to terminate an above-average, single male employee and instead keep the below-average, married father of two.

In California, this more of an example of “marital status” discrimination, which is specifically prohibited under California law, but these facts could also constitute family status discrimination.

I use this example here because the supervisor is simply applying his own stereotypes and morals to “protect” the man with a family based on his own morals and values instead of what is “fair” to the better-performing employee or what is in the company’s best interest.

Bringing Moral Stereotyping Cases

Moral stereotyping cases tend to be the most lucrative and easiest to prove among the various types of caregiver discrimination for a number of reasons.

First, they often involve the most inflammatory evidence that is offensive to the highest number of potential jurors. If a supervisor testifies to his belief that “God made women to have babies” and that this belief was why he did not hire the plaintiff, you can bet that many on the jury may be quite hostile towards the company when awarding the plaintiff damages.

Second, the supervisor who takes the wrongful actions against a plaintiff in such as case is often quite vocal about their motivations when they terminate or refuse to hire because (1) they truly believe they are doing the “right” thing, (2) they want the employee to know that this is the “right” thing and (3) it never crosses their mind that they are handing the employee a substantial lawsuit by “lecturing” them.

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Widespread use of this claim is so recent that it does not even have a consistent name in legal circles. We call it “family status discrimination”, but others call it “family responsibilities discrimination”, “FSD” or “FRD” for short, “caregiver discrimination” and countless other names, but they are all the same idea.

This post is the first in a series on the subject which is fairly expansive, quite interesting and can also get confusing.

The Impetus

The reason I bring this subject up now is because I just started a case representing two women against the same former employer who violated almost all of the various family status discrimination theories in dealing with one or both of them.

It is a very interesting case for several reasons, not the least of which is the ironic twist that the employer is an organization that actively promotes equality for women and the building of strong families as its mission.

While settlement discussions are under way, I cannot speak too much about this case in particular, but if it does end up in litigation I will post more details such as the identity of the employer.

The Legal Basis

I should first point out that the term “family status” is not mentioned anywhere in federal or California employment law statutes.

Instead, these claims are based on other existing employment laws, such as gender, marital status or pregnancy discrimination. The Family Medical Leave Act, California Family Rights Act, Pregnancy Disability Leave and other statutes also come into play.

Family status discrimination is one of those areas where employee-rights attorneys are very “creative” in crafting their legal theories. New ways of approaching the claims are constantly being tested in courts across the country and often prevailing.

This series is meant to be an exploration of these various theories and how they can be used under California law to protect employees.

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One of two things almost always happens: (1) the republicans introduce a pro-employer bill that will never pass the democratically-controlled legislature or (2) the democrats introduce a pro-employee bill that passes but is then vetoed by Governor Schwarzenegger.

However, I gave an interview to a reporter this past week for law360.com to discuss some recently-introduced legislation aimed at severely limiting employees’ rights to meal periods in California that led me to some interesting discoveries.

In researching one of the bills, SB 1192, which was introduced by State Senator Bob Margett on February 12, 2008, I was reminded why I try to ignore these bills, the people who introduce them and the political process in general.

The Details of SB 1192

SB 1192 proposes the following changes to existing law:

SOL Change

The bill changes the statute of limitations for recovering penalties for missed meal periods from four years (under Murphy v. Kenneth Cole) to one year. This would severely limit employees’ right to recovery, which means an employer would have a lot less to lose by breaking the law.

The penalty is one hour of pay for each break not provided, but presumably an employer makes much more profit from one hour of an employee’s work than they pay the employee. Therefore, employers might be willing to risk having to pay more later for that work.

For example, if an employee brings a lawsuit to recover one year of missed meal periods, the employer might have to pay another $12 of pay to an employee for each day worked that year, because they made $30 of profit from that hour of work by the employee.

Violation of California meal period laws is widespread, but only a small minority of employees do anything about it, which makes the small risk of paying one year of penalties worthwhile to an employer.

However, if faced with four years of penalties, an employer might think twice about taking the risk.

Anti-Employee Definition of “Provide”

SB 1192 modifies the law to state that an employer is only required to make a rest period available “without interfering with its use”.

Under this interpretation, employers will argue that if an employee signs a document when they begin employment saying “you are provided with a lunch break” then their obligation is met.

Unless the employer actively prevents the employee from taking the break, such as instructing them not to take a lunch break they are in the clear. This would put the onus on employees who are too busy to take a lunch break to complain about it to their employer in order to get any relief.

Often employers are well aware that the requirements they place on employees mean that taking a lunch break is out of the question. However, they also know that employees are hesitant to complain about the situation because they do not want to seem like a “slacker” or “lazy”, so they work through their lunch breaks.

Time for Taking Break Expanded

This bill changes the law to state that lunch breaks may be given “commencing at any time before the start of the sixth hour of work”.

This would seem to allow employers to mandate that employees take their lunch breaks immediately upon starting work. Essentially employers would be able to get away with telling their employees to come to work 1/2 later than normal and count that as their meal period.

This change completely negates the rationale behind requiring employers to provide meal breaks in the first place.

Purpose of SB 1192 Misrepresented to the Public

After introducing the legislation, Senator Margett issued a press release entitled “Senator Margett Calls for Flexibility In Meal Periods For All California Employees and Employers”.

The release only mentions the last change discussed above regarding the timing of meal periods and totally misrepresents its effect. He tries to pass this off as a bill that has the sole purpose of allowing employees to take their meal period during their 5th hour of work instead of before the 5th hour, which current law requires in most situations.

The Senator repeatedly tries to make it sound like the only reason he introduced SB 1192 is that “too many employees must take their lunch breaks at unreasonable hours”. In fact, as I outlined above, this bill has the opposite effect, allowing employers to require that breaks be taken at unreasonable hours.

Senator Margett has essentially told the public he introduced a bill that expands employees’ rights when it really destroys the rights they have under current law.

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Sam Zell, the head of Tribune Co., met with his employees/journalists last week at the Orlando Sentinel, one of the newspapers covered by his idiotic/inspiring (depending on which side you are on in the debate) new employee handbook.

One employee asked Mr. Zell about the direction the newspaper was heading and asked some follow up questions when she felt like he did not answer her question directly. At the end of the exchange, Mr. Zell simply said: “F*ck you” to the employee and left it at that. Unfortunately for Mr. Zell, a video of the incident quickly made its way onto YouTube.

I would direct Mr. Zell to the following paragraph in the handbook he so proudly introduced just last month:

8. QUESTION AUTHORITY. …Question authority and push back if you do not like the answer. You will earn respect, and not get into trouble for asking tough questions.

Apparently Mr. Zell isn’t very concerned about practicing what he preaches. When “feel good” handbook policies like this are not followed by management, a culture of cynicism and hypocrisy emerges in most companies.

This is probably even more true in the case where the person who created the policy and widely publicized its merits, violates its own terms just a few weeks later just as publicly.

Mr. Zell has stated publicly that he tried to contact this employee twice and not been able to get in touch with her. Also, she has refused to comment about the incident to the media.

Sounds to me like she, and likely other Tribune Co. employees, have learned their lesson about talking out of turn and not to “question authority”.

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Questions include topics such as whether the contestant has cheated on their spouse, wishes to cheat on their spouse, has various addictions and other very personal areas.

I have no idea who would volunteer to go on this show, especially after knowing the questions in advance. If you know that you could be about to reveal on national television that you cheated on your spouse, why would you go through with it?

Employment Law Issues

I want to clarify that I myself have never actually seen the show, because the ads alone made me cringe. However, an article yesterday on CNNMoney.com questioned the employment law implications for those who go on the show and may be disciplined at work for what is revealed.

Past questions have included whether a personal trainer ever touches female clients more than necessary. He answered “no,” but apparently the lie detector revealed that the true answer was “yes“. On the same episode, a contestant admitted to looking through their co-workers’ desks.

CNN Got Bad Legal Advice

Unfortunately for the author of the CNN article, the attorneys he spoke to gave extremely bad legal advice when asked whether employers could legally discipline these employees based on the show.

The responses from the lawyers included that the information would be “fair game” for discipline and that “It would be neither illegal nor unfair” to do so.

However, these answers are just plain wrong. The Employee Polygraph Protection Act (29 USC 2001-2009) specifically makes it illegal to:

discharge, discipline, discriminate against in any manner, or deny employment or promotion to, or threaten to take such action against…any employee or prospective employee on the basis of the results of any lie detector test.”

There is no requirement that the employer itself administer the test and any employer who violates this law is liable to the employee for lost wages, benefits, costs, attorney’s fees, and a $10,000 civil penalty.

It Could Happen

It is not unprecedented for an employee to be terminated from a job for what they say or do on a TV show. For example, on the second season of The Apprentice, one of the candidates was terminated (from her “real life” job, not by Trump) for describing some elderly women as “two old Jewish ladies”.

If an employee is “caught” in a lie on Moment of Truth and the employer terminates the employee for it, then it would be a clear violation of the prohibition of adverse action “on the basis of the results of any lie detector test”.

Should it be legal to terminate an employee for essentially admitting on national TV that he likes to touch his female clients a little too much? Probably.

Is it legal? No.

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Hime & Company, a Tokyo-based marketing firm, offers paid leave to employees who have a bad breakup, termed “heartache leave”.  While this is quite generous and one could argue that such a leave is often necessary to regain your composure, the terms are quite interesting.  Employees 24 years old or younger only get one day off, those between 25 and 29 get two days off and those 30 or older get three days.

CEO Miki Hiradate explains the reason for these different policies: “Women in their 20s can find their next love quickly, but it’s tougher for women in their 30s, and their break-ups tend to be more serious.”

I won’t go into the age discrimination implications for women over 40, because this story is from Japan and the odds of this happening in the US are virtually none (unless you work at Tribune, Co.–then all bets are off).

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However, failure to adequately communicate such policies is a frequent problem, where only 80% of those companies rate anti-discrimination training “either somewhat or very important”.

This study is certainly timely in the debate over Tribune company’s hopelessly inadequate anti-harassment policy. Training employees using such a policy might actually have a negative effect, since it does not even recognize creation of a hostile work environment as illegal harassment.

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The Decision

The Court decided that employers can terminate employees in California who use medical marijuana with a doctor’s prescription for a valid medical reason and not be held liable for doing so under state employment discrimination laws.

The majority spent almost all of their opinion talking about how the Compassionate Use Act of 1996 (the referendum that decriminalized medical marijuana under California law) does not explicitly say employers are prohibited from terminating an employee for using medical marijuana at home.

However, the majority seems to have forgotten that the case was brought under California’s Fair Employment and Housing Act (”FEHA”) and not the Compassionate Use Act (”CUA”), seemingly concluding that because the CUA was not violated, neither was the FEHA.

The only reason that the CUA has any application here at all is by virtue of the fact that it is the reason that the plaintiff can say he was not breaking state law. Arguably, if state law says something is illegal, then state anti-discrimination laws cannot be held to protect an employee who breaks it. However, the fact that the plaintiff broke no California law should mean that the legality or illegality of the conduct is a non-issue.

FEHA Disability Discrimination Analysis

In California, employers are required to “reasonably accommodate” individuals with disabilities, which basically means that they need to work with the employee and their doctor to determine what the employee needs to be able to do their job and treat their disability. In Ragingwire, the employee simply wanted his employer to allow him to use medical marijuana at home during non-work hours.

The employer generally must allow any accommodation that does not cause it to suffer an “undue hardship”. In order avoid liability for refusing a particular accommodation, the employer must demonstrate what sort of undue hardship it would suffer.

Here, the Defendant pointed to virtually no undue hardship it would suffer by letting Ross use his medical marijuana at home during non-work hours. Instead, it pointed to “red herrings” (which the majority readily adopted as some of its justifications) such as:

• We cannot be forced to allow him to use drugs at work–The Court admits that Ross explicitly stated he was not asking for the right to use medical marijuana at work.
• We cannot be held responsible for him coming to work under the influence–Again, Ross was not asking to be allowed to be under the influence at work. This is exactly the same as if an employee had an Oxycotin or Vicodin prescription and could potentially show up at work under the influence of their medication.
• We cannot condone our employees violating the law–If you let your employees bet on sports such as running football pools, this is essentially the same thing. Under federal law simple possession of a small quantity of marijuana is a misdemeanor punishable with a maximum $1,000 fine and/or a year in jail, whereas gambling in California is punishable by a $1,000 fine and/or six months in jail. However, this argument is irrelevant where an employee is only using medical marijuana at home during non-work hours because an employee breaking a law on their own time does not create an undue hardship.

None of these arguments proves that the employer would suffer an undue hardship under these circumstances. Under the FEHA, a claim of hardship generally must be based on either (1) the fact that the accommodation would cost the employer too much to implement, or (2) it would be too inconvenient to implement the accommodation. (See Cal. Gov. 12940(m).)

The majority in this case simply glosses over this whole analysis (which is really the only question they needed to answer here) by conclusively stating “The FEHA does not require employers to accommodate the use of illegal drugs” with virtually no support for that statement. (p. 5)

The majority tries to support this statement by going into a long analysis of cases where it has held that (1) employees can be drug tested under certain circumstances, and (2) employees can be terminated for “abusing” drugs that have no “legitimate medical explanation”. Of course, neither of these arguments really has any application to this case, but I guess it sounds good.

Me and the Dissenters Make 3

The dissenting opinion, written by Justice Kennard (who was joined by one other justice to make the decision 5-2) gets the analysis right and reaches the right conclusions, in my opinion. Of course, my earlier post about this case makes his same points, but because we both seem to be in the minority it will probably be quite some time before our opinions are adopted.

It will, however, be interesting to see what the rest of the blawgosphere things about this decision.

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Comments: The Good, The Bad and the Ugly

The overwhelming majority of mail I received is in agreement with my comments on the handbook, but I also received the most hate mail for any post I have made in the past year. For example:

I’d like to see the legal system so jammed with lawsuits and uncollectible (sic) judgments that it fails altogether. Maybe then we could get out from under the thumb of the scum sucking lawyer filth who rule our lives. I support the kind of tort reform that would bankrupt 95% or more of attorneys.

However, I did actually receive some civil and thoughtful disagreement, most of which can be summed up by an anonymous comment that reads:

[T]hat “gobbledygook” that can be read and understood by 99% of the population is better than “gobbledygook” that is incomprehensible to 80% of the population. A legal system that is incomprehensible to the vast majority of those to whom it is supposed to apply is an incredibly bad system.

I agree with the second sentence of this comment, but to me the first sentence refers to a non-existent problem with employee handbooks. Generally these handbooks contain little (if any) legalese at all, because that would simply defeat their purpose.¹

Good Handbooks Have NO Gobbledygook

A post by Andrew Mitton at his new blog Legal Frontier that discusses the following provision as an example:

5.1 You may want to think twice before you enter into an intimate relationship with a co-worker. When you start, it might seem like a good idea. It’s when you stop, or the wrong people find out (and they will) that you could discover that perhaps it wasn’t.

While I did not originally comment on this provision, Daniel Schwartz at the Connecticut Employment Law Blog (an employment law defense attorney) has expressed concern over this provision. Mr. Mitton, on the other hand, praises the Tribune’s provision for not having “wherefores, the herebys, and the all-encompassing list” of rules against behavior.

However, under the Tribune’s provision, the company is refusing to take the position on the issue and the policy has no “teeth”. If they want to terminate an employee for violating it, all the company can say is “we told him he should ‘think twice’”, when they should have made it a rule.

You might wonder to yourself “Ok, fancy lawyer guy, how would YOU have written it?” Alright, I will give it a shot:

5.1 The company discourages intimate relationships between co-workers and prohibits such relationships between supervisors and subordinates.

This is a clear statement of policy that the company can point to when an employee refuses to follow the rules and must be terminated. It contains no legalese and, in my opinion, CAN be understood by 99% of the population.

The Tribune’s provision also does not prohibit relationships between supervisors and their subordinates, which are NEVER a good idea to allow. When the relationship sours, it can lead to sexual harassment suits and even if it does not go bad, employee morale can plummet when they think the subordinate is getting favorable treatment from the supervisor.

Of course, it is possible that the Tribune does not wish to prohibit relationships between supervisors and subordinates. It is also possible that instead of discouraging co-workers from having intimate relationships with each other, they simply want to make a public service announcement suggesting they “think twice”. If so, then I suppose this provision accomplishes its goals.

The Reality of Typical Employee Handbooks

The public might be surprised to know that even most lawyers are opposed to legalese and overly complicated language (myself included). In fact, most law students today are taught not to write in legalese and to use plain English. Many jurisdictions (including the federal courts) are completely rewriting their rules to remove legalese and make them more clear for laypeople.

I have probably read close to 1,000 employee handbooks in my career and I do not recall ever seeing one written in legalese using “wherefore’s” or “hereby’s”. In fact, using legalese in an employee handbook may even be as bad an idea as the Tribune’s approach.

The main purpose of handbooks is to put employees on notice of what is expected of them. In litigation, the employer would have a tough time justifying termination of an employee for violation of a handbook provision so complicated the employee could not have been expected to understand it.

While I have seen many handbooks that are poorly written and difficult to understand, this is almost always because the employer did not consult a lawyer about it not because they did.

1. Employment CONTRACTS, 401k, Health Insurance, and similar documents DO have this problem, though, and I agree that they should be clearer.

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This caught my eye because it is not every day that a company publicly releases or discusses their employee handbook. In fact, many handbooks actually state that its pages are the employer’s property and must be returned at the end of employment.

The (Bad) Idea

According to Zell, the handbook outlines “our company’s new core values” and “reminds us not to take ourselves too seriously, and to have fun.” Unfortunately for the Los Angeles Times, legal documents (which are almost always referred to in employment law cases by one or both sides) do serve a legal function.

Although the handbook has the requisite disclaimer stating that it is not a contract, its provisions may be modified at any time, etc. and contains a footnote stating “Of course, Tribune follows…state laws,” this will not let them off the hook in future litigation.

In provision 18.1.4 of the new handbook, the Tribune points out that:

It’s good judgment not to put in writing what you don’t want printed on the front page of a newspaper. Or posted on a website…

The company probably should have taken its own advice and left some of these provisions out of their official employee handbook, but it appears they did not consult an attorney before releasing it, so now they are stuck with it.

Use of Employee Handbooks in Litigation

Employee handbooks are used in litigation to demonstrate an employer’s mindset, attitudes or as foreshadowing conduct at issue in a lawsuit.

For example, a handbook might say “you will be terminated immediately if you cannot satisfactorily perform your job due to a medical condition” (from an actual handbook I have seen in a case).

This is extremely good evidence in a disability discrimination or family medical leave case because it can be used as proof that the employer has already stated its intention not to comply with the law.

Examples from the Tribune Handbook

Here are some examples from the recently implemented handbook that point out that likely will cause its outside employment counsel to drive their head repeatedly into the nearest brick wall.

Harassment is not “Harassment”

From section 4, “Harassment Policy (Sexual & Otherwise), of part 3, “Employee Manual” of the handbook:

4.1 Working at Tribune means accepting a creative, quirky,…odd, humorous,…opinionated and sometimes annoying atmosphere.

4.2 Working at Tribune means accepting that sometimes you might hear a word that you…might not use…experience an attitude you don’t share…[or] hear a joke that you might not consider funny.

4.3 This should be understood, should not be a surprise and is not considered harassment.

4.4 Harassment means being told that a raise, promotion or other benefit is dependent on you going on a date with your boss or some other similar activity. (emphasis added)

Provision 4.4 actually refers to the relatively uncommon “quid pro quo” sexual harassment, which includes “sleep with me or you are fired”-type conduct.

The vastly more prevalent form of sexual harassment is “hostile work environment” harassment, which occurs when a sexually-charged atmosphere is created, such as frequent, unwelcome sexual propositions towards an employee.

In fact, hostile work environment claims include situations where the conduct is not even directed at the plaintiff, such as other employees’ constant viewing of pornography in close proximity to her or constant sexual comments about other employees to or within hearing distance of her.

Provisions 4.1-4.2 could easily be read to encompass a hostile work environment and 4.3’s bold statement that in the company’s view it is simply “not considered harassment”. It does not take much work for a plaintiff’s attorney to argue that this provision basically says that the company does not consider hostile work environments to be a form of harassment.

If an employee complains about such conduct and is ignored or retaliated against, provision 4.3 will be very damaging to the employer’s case because its state position is that there is nothing wrong with the conduct in the first place.

Managers Love it When You Question Their Authority

8. QUESTION AUTHORITY. …Question authority and push back if you do not like the answer. You will earn respect, and not get into trouble for asking tough questions.

In theory, this might seem to be a “breath of fresh air” and a great company-wide “open door policy”. However, in practice this policy is likely bad for both employees and the company itself.

For the company, it is basically a promise that they will not take any action against an employee for complaining, no matter what it is about or how much they complaint. Every workplace has an employee who just loves to complain about anything and everything constantly. This provision both encourages such behavior and bars management from doing anything about it.

On the other side of the issue, I advise employees every day to be careful with taking such open-door policies too literally. It is commendable for a company to have a well-intentioned policy like this in place, but it has to be (and rarely is) followed by lower-level managers who usually do not like their orders or policies being questioned. In only a rare case will the employee earn any “respect” for complaining.

If an employee takes advantage of a policy like this, they should do so in writing and document both their complaints and their supervisor’s reactions. That way, if retaliation does occur then there is a paper trail to prove it.

Alcoholism: Only Disease You Can Get in Trouble for Having¹

7.1 If you use or abuse alcohol or drugs and fail to perform the duties required by your job acceptably, you are likely to be terminated…

Alcoholics and drug addicts are considered to be disabled under California law and an employer terminates them for it at their own risk. In many circumstances, the Americans with Disabilities Act also applies to these situations.

In fact, under California Labor Code § 1025-1028, employers are required to reasonably accommodate these employees by allowing them to attend an alcohol or drug rehabilitation program if they have a substance abuse problem.

These types of disability discrimination claims are often difficult to prove and an uphill battle to establish that the disability (and not its side effects along, e.g. tardiness, poor performance) is the reason for termination.

However, a handbook provision like this could be the piece of evidence that wins the case, since this is singled out as a specific reason for terminating a poor performer. In other words, it does not say “If you have a mental breakdown and fail to perform…,” so an argument that the difference is the specific disability itself is the reason gains a great deal of credibility.

“The company intends to actively discriminate…”

2.4 The company intends to actively discriminate based on job performance, ability and attitude.

2.5 Discrimination based on gender, age, race, religion, national origin, marital status, sexual orientation, disability, or any other characteristic not related to performance, ability or attitude, protected by federal or state law, or not protected (such as inability to tell a joke, the occasional poor wardrobe choice or bad hair day), is strictly prohibited.

There are a couple of issues with this provision that merit discussion, both of which can turn out bad for the company.

First, these paragraphs essentially promise that they will not terminate or otherwise discriminate based on any reason not related to performance, ability or attitude. Therefore, budget cuts, general “personality conflicts” with co-workers or management, or simply their manager’s not liking them are not valid reasons to terminate or take any other action against an employee.

Second, while singling out someone with the “inability to tell a joke, the occasional poor wardrobe choice or bad hair day” as “unprotected” is clearly intended as a light-hearted joke, it could also be applied to that “weird” janitor/mailroom person/manual laborer who works for the company. I have represented some of these employees who are terminated for their social awkwardness which is sometimes a symptom of a disability such as mild autism.

While this may seem far-fetched, Tribune Co. has tens of thousands of employees and such an issue is bound to arise at some point in the next several years.

That’s What Employment Law Attorneys Are For

Apparently the handbook was actually written by Randy Michaels, Tribune’s CEO for Interactive Broadcasting. He has said he believe that “The more policies you have, the more opportunities there are for someone who is very unhappy to sue.” However, with the right disclaimers in place, breaking a promise in an employee handbook itself provides no basis to sue.

Although our firm only practices employee rights law and does not advise employers or draft employee handbooks, this is most certainly the kind of thing that makes management-side employment law attorneys crucial in preventing lawsuits and other problems before they occur.

Mr. Michaels seems all too eager to say he is “amazed and amused at what lawyers get businesspeople to do,” suggesting that other companies who pay lawyers to write (as the LA Time piece puts it) “the mind-numbing, lawyer gobbledygook in most corporate manuals” are being swindled or misled. In fact, that “gobbledygook” is often instrumental in successfully defeating many lawsuits by employees.

Once the Tribune faces its first lawsuit where this handbook is used as evidence against them, they will hopefully realize that Mr. Michaels has actually created more legal liabilities than he has prevented.

At that point, I will feel sorry for the attorney who has to defend a company that believes they will “have fewer legal problems with plain English and common sense than with pages and pages of rules”. Essentially, that their own gobbledygook is better than any gobbledygook a lawyer could have written for them.

Good luck with that.

1. Courtesy of: Mitch Hedberg

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[P]eople have the right to discriminate…in choosing…an employee…. Civil rights legislation of the past thirty years has totally ignored this principle. Many ‘do-gooders,’ of course, argue from the ‘moral high ground’ for their version of equal rights, knowing that they can play the sympathies and the guilt of many Americans.

It appears Mr. Paul is not only against protection of women in the face of discrimination, but virtually all protected minorities and classifications, including race, religion, and age.

What else is there for me to say about Mr. Paul’s views other than I disagree completely and as someone who thinks of himself as a “do-gooder,” they offend me. I would think the majority of independent voters tend to agree with me, but recent polls showing independent support for him seem to tell a different story.

This will likely be my last foray into political commentary for this election cycle. It has been an eye-opening experience and at least solidified who I will not be supporting in the upcoming elections.

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