A Study That Won't Make You Feel Good in Half the Country

Sara Murray of the WSJ has an interesting story this week about state legislation in the now 23 states that as of January will require employers to allow employees to bring weapons into their parking lots. Guns in the Parking Lot: A Delicate Workplace Issue. 

What caught my attention was the mention of this statistic:

 A 2005 North Carolina-based study in the American Journal of Public Health showed that workplaces that allowed guns were about five times more likely to have a worker get killed on the job compared to workplaces that prohibited all kinds of weapons.

For guns, the linkage was actually 5 to 7 times more likely. For those who want to get into the weeds, a link to an abstract of the study is here.

Now one study alone is not enough to dictate policy, but if I am an employer responsible for assembling a large group of humans 300+ times a year, it would certainly give me sufficient pause to ask for a concrete explanation of why such a legislative action makes sense.

Blogging Is a Habit

And like any other habit, it is much easier to fall out of than create.  I am always amazed how after working out regularly for several months, missing a couple of weeks can put me back to ground zero in terms of the work out “habit.”

That has certainly happened to me with blogging as well.  But with the first Monday of October, which of course is the opening of the current term of the U.S. Supreme Court, it seems a like a good time to try to kick the habit back in gear.

At least I have been doing some things, including sharing some of my thoughts on the practice of law with the folks at the Paralegal 411 website:  http://www.paralegal411.org/interviews/michael-w-fox/

And there’s more in store.  This Friday in Austin, Angie Marshall and I will be speaking at our firm’s seminar on:

TITLE VII AND EMPLOYMENT LAW: THE FIRST FIFTY YEARS

When Congress passed the Civil Rights Act of 1964, it marked not only a turning point in civil rights, but the beginning of the imposition of an adversary system in the workplace. Trace the history of the development of anti-discrimination law, obtain a greater understanding of current cutting edge issues, and gain an insight into the future during this informative session.

There will be lots of other great speakers and topics as well, including former NLRB member,  Brian E. Hayes.  For more information and registration information, check here:  11^th Annual Labor and Employment Law Update.

And before the year ends, I will be speaking  in lovely Charleston, South Carolina with Peter Hughes and Anthony Alfano, Chief Employment, Labor & Benefits Counsel, Tyco at a program designed exclusively for Labor and Employment law in house counsel .

Our topic:

Trial Techniques for In-House Counsel: Don’t Make Juries Mad

Taking a case before a jury can be a nerve-wracking prospect for in-house counsel. The stakes are high and the results can be gratifying . . . or astonishing. This session will cover multiple trial issues and strategies, including juror insights and strategies for voir dire, challenging evidentiary issues, preparing witnesses, selecting experts, and more.

And hopefully, by then I will also be back in the blogging habit.

Whose Side Are You On? The Perils of HR

I have often said that being a front line supervisor is the most difficult job in today's workplace. I think that is still true for a specific position. But if there is a department that is fraught with peril, it has to be the Human Resources group.

This came to mind because of a great article by Alison Green, 5 Secrets You Should Know About HR.

The points Green makes, that HR knows things they can't tell you, that their job is to support the managers of the company not employees, to list  just two, are true, but point up one of the problems for HR in the modern world.

Too often, the constituency that they are asked to serve is not made clear, or at least not explicitly so. Is HR an employee advocate, looking out for the interests of the employees? Maybe, and clearly that has a role, but in reality, the responsibility is more often in support of management, although that support often comes in the form of being the compliance policeman.

This topic certainly deserves a lot more attention than this brief post. Until this issue is resolved at any particular company, HR will forever be sentenced to a very unhappy existence.

Pay Cards - Federal Standard Might Be Helpful

Although employers are often ambivalent, if not negative, about federal involvement in the workplace, there are time when it is beneficial. 

There is not anything that is more basic about the employment relationship than how employees get paid. I can still remember getting my 65 cents an hour pay as a delivery boy for Graves Drugstore, in cash, in a little white envelope every Saturday.  For a 15 year old netting $35 a week that was fine, but not very scalable for a larger employer.

And in a world where the number of the unbanked and underbanked is growing larger, see the Forbes article, Who Needs Banks?, it's an issue that also impacts employees.

One solution has been pay cards. But for a national employer using this means of payment means complying with a whole host of state laws, very few of which are specifically designed to address that particular issue. So, wending your way through the maze can be complicated, and that means expensive.

So the NYT article, 16 Senators Seek Inquiry of A.T.M.-Style Pay Cards, highlights one of the times where at least some segments of the employer community might be happy with a comprehensive review of the issue and a federal solution.

As the article points out, it is an area where there can be abuse. But abusing employees is not the desire nor intent of all but the most rogue of employers, and so reasonable rules and regulations that could be applied across the country no matter where the employee works would really be helpful.

The devil is in the details of course, but my guess is that this is one area where common ground could be found and Congress might could actually solve a problem that exists for  employers and make sure that employees are protected. 

Wouldn't that be a novel gift from Congress?

Federal Government Action on Employment Discrimination Before Title VII

Congress as early as the Unemployment Relief Act of 1933 made a policy declaration "That in employing citizens for the purpose of this Act no discrimination shall be made on account of race, color, or creed."

Action to enforce the policy were much slower to develop. Nothing was passed by Congress.

 In 1941 and 1943, President Roosevelt created two Fair Employment Practice Committees whose focus was on preventing discrimination by government contractors who were involved in the war effort. The first FEPC had only 8 staff members and no powers. The 1943 version was better staffed with 120 employees, but still no powers. They did receive over 8,000 complaints and held 30 public hearings, but their powers were limited to enforcing any decision by negotiation, moral suasion, and the pressure of public opinion. The powers of the second FEPC expired in June 1946.

Under Presidents Truman and Eisenhower the federal government's efforts were focused on government contractors, but again with no real teeth.

In March of 1961, President Kennedy issued Executive Order 10925, which established the President's Commission on Equal Employment Opportunity to focus on eliminating employment discrimination on the basis of race, color or national origin in both government employment and by government contractors. It also for the first time adopted the concept of requiring affirmative action on the part of government contractors.

This Executive Order also required government contractors to file reports and gave the Commission the power to recommend suits by the Department of Justice and to debar contractors who failed to comply with its requirements. Much of the energy though was 200 "plans of progress" under which large companies set up voluntary recruitment plans designed to give minorities equal employment opportunities.

It was this Commission on Equal Employment Opportunity that seemed to be the model for what was originally included in Title VII introduced in June of 1963.

June 1963 - Civil Rights Act Introduced

On June 20, 1963, what became the Civil Rights Act of 1964 was introduced as H.R. 7152, in the 1st Session of the 88th Congress. It was referred to the Judiciary Committee which was chaired by  Rep. Emanual Celler (D-NY). He referred it to a sub-committee, which he also chaired.

On June 26, 1963, the first hearing was held with Attorney General Robert F. Kennedy as the sole witness.

Since for purposes of this blog, the key provision was Title VII, which is the foundation for the advent of employment law, it is interesting to note some of the provisions of the bill as originally introduced:

• It created four protected categories, race, color, national origin and religion;
• It was designed to prevent discrimination in voting, education and public accommodations;
• In the introduction it made the following statement:  It is also desirable that disputes or disagreements arising in any community from the discriminatory treatment on the basis of race, color, or national origin shall be resolved on a voluntary basis, without hostility or litigation. Accordingly, it is the further purpose of this Act to promote this end by providing machinery for the voluntary settlement of such disputes and disagreements.
• There was a Title VII, which allowed the President to establish a Commission on Equal Employment Opportunity with a mission of eliminating discrimination on the basis of race, color, national origin and religion by government contractors and sub-contractors. It would have the powers given to it by the President and would be chaired by the Vice President of the United States, with the Secretary of Labor serving as the Vice-Chair.

Obviously, a far cry from what would emerge as Title VII one year later in the bill as passed by the Congress and signed into law by President Johnson.

Let's Get a Grip, Employees' Rights Did Not End Yesterday

Reporting is no easy task. But I have heard several reports concerning the two Supreme Court decisions yesterday that  convey misleading information, or at least don't put it in proper context.  An example is By 5-4, a More Hostile Workplace by New York Times editorial board member Teresa Tritch.

My comments on the two decisions, Vance v. Ball State and University of Texas Southwestern Medical Center v. Nassar with links to the decision themselves, are here and here.

There is no doubt that the employer prevailed in both cases, and that employers will benefit from the two decision in the future. But implying they will lead to a more hostile workplace or some of the other ills being proclaimed, are off the mark.

The starting point of any discussion about the efficacy of employment law should start with a basic premise -- once an employer has been sued they have lost. The only question is how little they have lost. See (albeit in another context) my explanation of that point. Bullying As a Cause of Action - One Large Step Closer.

Secondly, by definition all employees who bring cases based on their termination come from a pre-selected pool. That pool consists of individuals intentionally selected by a business manager or group of managers as not working out as an employee, or in cases of economic driven layoffs, not being the best to keep.

You don't have to accept that all employers are free of discriminatory motives, although I would argue most are, to understand that just based on the hassle and cost of terminating an employee, not to mention the concern of being sued, that is not an action that will be taken lightly. Thus you should not expect that all terminated employees would have meritorious claims or that there should be some 50/50 split. That employers "win" most cases should be the rational rule, not some surprise. (Even then see prior paragraph, how "wins" by employers are really minimized losses.)

With that small bit of context, which almost is never recognized in such articles, here are some additional comments (portions of the article in italics)

But according to a 5 to 4 decision by the Supreme Court today, the answer is no. With that ruling, the conservative majority — Chief Justice Roberts, and Justices Alito, Kennedy, Scalia and Thomas — has left many victims of workplace harassment without legal recourse.

No victims of workplace harassment are without legal recourse. The importance of whether someone was a supervisor goes back to an earlier pair of Supreme Court decisions in which the Court determined what standard would be utilized to decide harassment cases. The Court decided that in cases of co-employees the standard would be negligence, that is, did the employer know (or should have known) about the harassment and failed to take action.

In the case of  harassment by "supervisors" the court held that there were two types of harassment. In those where in addition to the harassment there was a "tangible employment action," then the standard was strict liability, the employer would have no defense. However, if there was harassment by a supervisor, but no tangible employment action, the employer would be strictly liable unless it could establish a two part affirmative defense.

In other words, the manner of proof depends on the status of the harasser and whether there was any tangible job action. There are three buckets:

1. co-workers (or third parties);
2. supervisors + tangible employment action; and
3. supervisors with no tangible employment action.

Based on yesterday's decision, more people in the work force fall into bucket 1, as opposed to buckets 2 and 3. Each bucket is protected from harassment, just in different ways.

To be fair, Tritch later qualifies her earlier statement:

Under Title VII of the 1964 Civil Rights Act, employers are liable for discrimination by a “supervisor,” but not by co-workers (unless the victim has reported abuse by co-workers to a supervisor who does nothing to remedy the situation.)

The relegation of the whole first bucket to the parenthetical shows a misunderstanding of how harassment law works. It also fails to mention that the negligence standard covers not only situations where abuse was reported and the employer failed to act, but situations where the employer should have known abuse was occurring and failed to act.

What Justice Alito was doing was defining what standard would apply. Since there are different methods of proof, it is not insignificant, but it is hardly the end of the world and it is certainly not removing protection from harassment from any employee.

In the Nassar case, Tritch starts out on a wrong foot:

A second employment case, University of Texas Southwestern Medical Center versus Naiel Nassar, decided by the same 5 to 4 majority also thwarts the ability of employees to sue for discrimination under Title VII.

The whole basis of Nassar is that there are different standards, in different parts of the statute, for discrimination and retaliation under Title VII. Nassar has absolutely no impact on any employee claiming that they have been discriminated against because of their race, color, national origin, religion or sex, the five protected categories under Title VII. It only deals with retaliation.

The biggest error is this:

The university medical center appealed, saying that for Dr. Nassar to prevail, he had to show that retaliation was the sole factor leading to the job denial.

Tritch later repeats that mistake saying Justice Kennedy said that Nassar had to "show that retaliation was the sole factor in the job denial."

The trouble is he does not, even after yesterday's decision.

There are at least three different standards for finding liability in employment cases. The easiest way to show the difference is to use mathematical terms, although it is admittedly an oversimplification:

1. motivating factor - Means that the person making the challenged decision had both legal and illegal motives in making the decision. For e.g. if 40% of the reason for firing an employee was her sex, and 60% her attendance, she could establish sex was a motivating factor.
2. but for - Means that in the same case, the employee would not have been fired for her attendance if she were a man. Using the mathematical terminology, she would have to show that sex was 51% of the reason she was fired.
3. sole reason - The employee would have to show that sex was 100% the reason she was fired.

If as Tritch said, the Supreme Court had held that an employee had to show retaliation was the sole reason, it would have been a really big deal. But the Court didn't. It held that you had to use test #2, but-for, not test #1, motivating factor.

Again, I am not saying it is not a victory for employers, nor insignificant. However, I would argue that in all fairness if it is not the only reading of the law as written, it is at least a fair reading of the law on which reasonable minds could differ.

It also is a repeat of what the Supreme Court decided was the standard in ADEA cases in Gross v. FBL Financial Services, and although there were similar cries that the world was ending for age cases, I haven't seen any support that has actually happened in the four years since Gross was decided.

There are also good reasons why motivating factor is not a workable standard for use when we have jury trials. In fact I testified before the Senate Judiciary Committee to that effect when they were considering legislatively reversing Gross. See link here. I would like to say my testimony persuaded them otherwise, but I am fairly certain it had more to do with legislative grid-lock than anything I had to say.

Employers definitely won yesterday. But in a system where employers lose just by being sued, to imply that these were drastic decisions demolishing the protections of the workplace, just goes too far.

I mean,

The question now is how far and how deeply the infection will spread before Congress passes legislation to establish the E.E.O.C’s reasonable definition of “supervisor” as the law of the land.

Really? Let's all get a grip.