I frequently travel to Charleston, as do many Grand Strand residents. It’s a gorgeous town, full of rich heritage and beauty (not to mention great shopping and wonderful activities for kids). It feels every bit as much “home” as North Myrtle Beach does to me. I can’t put into words how heartbreaking yesterday’s tragedy is to all South Carolinians (NY Times - free registration required).

The South Carolina Employment Law Blog salutes nine fallen heroes.

• Captain Louis Mulkey
• Captain William Hutchinson
• Captain Mike Benke
• Engineer Mark Kelsey
• Engineer Bradford Baity
• Assistant Engineer Michael French
• Firefighter James Drayton
• Firefighter Brandon Thompson
• Firefighter Melvin Champaign

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This article from MSN Careers outlines the four worst offenders at work - The Talker, The Kiss-Up, The TMI (too much info) and The Gossip - and offers solid tips for dealing with each. What doesn’t work: ignoring it. You’ve heard the old saw: “the definition of insanity is doing the same thing over and over again and expecting different results.” Get proactive and solve the problem tactfully!

Technorati Tags: handling irritating coworkers

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Or fire you, as the case may be. Wise Bread, a wonderful site whose motto is “Living Large on a Small Budget” (seems apropos for my other blog, too!) has a post everyone should read which can really open your eyes about those “little things” you’ve maybe noticed at work lately. Out of the loop? People avoiding you? Just feeling a weird vibe? It might not be your imagination - they might really be out to get you! No one wants to encourage suspicion and paranoia but if you are on the chopping block, it’s best to know ahead of time so you can take the following proactive measures to keep your feet on the right work path:

1. Brush up the resume. Make sure it’s current, and perfect (no misspelled words, no missed punctuation).
2. Get organized. Make a list of your contacts who might be able to help steer you in the direction of a good position. Get your finances in order. Have medical checkups before the insurance runs out.
3. Stay positive. Now is not the time to engage in morose “why me?” introspection. Keep up your health and your confidence - you’ll need it for the job hunt to come.
4. Keep at it. To the patient go the jobs. Use the energy that comes with the situation to fuel your job search. Remember: You always look better to potential employers when you’re already employed!

Follow these tips and you can hit the ground running. And just imagine the look on your boss’s face when he finally does let you go, and you lean back with a slight smile and say, “I was wondering when you were going to get around to this ….” (OK, maybe that’s just me … but wouldn’t it feel good to surprise them for a change?)

Technorati Tags: warning signs, getting fired, finding work

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Penelope Trunk, the Brazen Careerist, has a column up at Yahoo.com’s Finance site that’s worth a look. Titled “Making Yourself More Likable At Work,” it’s full of good, common sense advice that we could all stand to remind ourselves of from time to time. The most arresting part of the column comes under the heading “ten ways to blow it” - here’s a snippet:

• Using sarcasm as a defense mechanism

You probably don’t know if you’re using sarcasm as a defense mechanism, but if you use it a lot, it’s a safe bet that it’s in a defensive way.

• Being quiet because you’re insecure

People are inherently social animals. If you have nothing that you want to say, then you’re probably not likable because you have nothing to offer.

But if you do have things to say but don’t say them, then you’re not likable only because you’re so insecure that you believe you’ll sound stupid when you talk.

• Not revealing emotions at work

Keeping to yourself emotionally makes you seem one-dimensional, and it’s hard to convey likability with no depth. Most people who talk but don’t reveal emotions are out of touch with their emotions. You have to know them yourself to share them with other people.

I think it’s interesting that over 400 people have rated her column, cumulatively, as merely “good” - 2.5 stars out of 5. Is that because it’s just a “good” article? I don’t think so. Penelope is an excellent writer, and the column itself is hard-hitting and succinct. I think it’s because most people think they’re already pretty likable, and perhaps those people interpret Penelope’s column as an unfair calling-out-on-the-carpet for something they think they didn’t do (i.e., being unlikable). Another possibility: some people might object to the entire premise - that it’s not what you do, it’s who you know and how much they like you.

Nevertheless, I think it’s good advice to cultivate a friendly reputation at work. No one suggests you have to like everyone you work with. But you can make your work life considerably easier by following Penelope’s suggestions.

Technorati Tags: making friends at work, improving work life

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The Federal Sector FMLA Blog posts about Brown v. The Pension Boards, United Church of Christ, a New York case where the court dismissed the employee’s case. The reason? The employee/plaintiff had his mom and sister report his need for FMLA leave, during his absence, to the employer.

The lesson? Unless you’re unconscious, pick up the phone and tell your boss you need FMLA leave.

Technorati Tags: FMLA

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It’s amazing to me how many employers think they can fire workers because they’re pregnant. Or refuse to hire a qualified employee because she “looks pregnant.”

So it ought to be no surprise that the EEOC is indeed reporting an uptick in the number of complaints it’s seeing regarding pregnancy discrimination (link to MSNBC.com story). For the record, such actions do indeed violate Title VII’s provisions (amended with the Pregnancy Discrimination Act:

Such charges filed with the EEOC, state and local agencies jumped nearly 19 percent to a record 4,901 last year, from 3,977 in 1997. And, [a spokesman for EEOC] adds, “pregnancy discrimination lawsuits by EEOC have increased about threefold from six or fewer per year in the early to late 1990s, to 16 or more per year since 2001.”  Oops. Looks like many employers forgot to read the Pregnancy Discrimination Act, which is an amendment to Title VII of the Civil Rights Act of 1964: Discrimination on the basis of pregnancy, childbirth or related medical conditions constitutes unlawful sex discrimination under Title VII. Women affected by pregnancy or related conditions must be treated in the same manner as other applicants or employees with similar abilities or limitations.

There you have it. There are limits to applicability relating to the number of employees, however, so speak to an attorney if you think you have been discriminated against on the basis of pregnancy or any other protected ground.

Technorati Tags: pregnancy discrimination, title vii

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The title’s a bit of a nerdy inside lawyer joke - ERISA, the federal law that governs employee benefit plans, is infamous for its wide and broad preemption provision, which basically means that no state court actions get the chance to look at cases with ERISA implications, and even when the federal district courts are involved, the “discretion” standard in ERISA pretty much guts all claims. That’s generally seen as great for plan administrators, bad for plan participants (that means you, as the worker).

So, it’s news when the Sixth Circuit comes up with a ruling that says “Not so fast with the preemption, there.” The facts of the Thurman v. Pfizer, Inc. case are pretty straightforward, and I’ll let Jottings By An Employer’s Lawyer’s Michael Fox take it from here:

Dr. Thurman, a veterinary pathologist, interviewed for a job with
Pfizer and was told that if he accepted the position, at age 62 he
would be entitled to a pension in the amount of $3,100. He accepted and
later was told that the information he received was incorrect and his
monthly pension benefits would be about $816 a month. Thurman
sued seeking either the difference or for rescission and reliance
damages in the form of benefits he relinquished by leaving his prior
position (higher wage and stock options among others). The district
court held that his entire claim was preempted by ERISA.

The appellate court said that while his claim for the difference was preempted, the other claims weren’t. In cautioning employers, the court stated, “If adhering to promises regarding ERISA
governed plans proves too cumbersome for employers, then during the
recruitment process, those employers must simply be more careful before
informing potential employees of the ERISA governed benefits to which they might be entitled.”

Not surprisingly, Michael apparently thinks this isn’t very practical. My response to that is confusion. Is it really that difficult for an employer to know what benefits are available to new hires? And if it is, the answer isn’t “let them tell the employee whatever they want” but “don’t tell them anything except ‘we’ll have to look into that’” - and then, do so. I really don’t see the issue here at all. Employers ought to know what they’re offering their new hires, period.

Technorati Tags: thurman v. pfizer, sixth circuit, erisa preemption

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SCOTUSBlog tells us that the 2nd Circuit Court of Appeals’ decision in a case called Meacham v. Knolls was the subject of what’s called a “petition for certiorari” - or “cert petition” for short - earlier this month. This the necessary procedural step that puts in motion the consideration of the case for a formal appeal by the U.S. Supreme Court. The Supreme Court can then deny the petition for cert (”deny cert”) or grant it (”grant cert”). If granted, the appeals process will move on to briefs, and usually oral arguments (though some cases can be heard without orals, if the Justices feel the oral argument process isn’t necessary).

The Meacham case centers around the federal law that prohibits age discrimination in employment (called - what else? - the Age Discrimination in Employment Act  or ADEA).  This federal law, as with many antidiscrimination statutes, provides that it “shall not be unlawful for an employer . . . to take any action otherwise prohibited . . . where the differentiation is based on reasonable factors other than age.” 29 U.S.C. § 623(f)(1). Basically, this is the employer’s defense - it has to prove that, while it arguably did treat older workers differently than younger workers, the real reason for that difference in treatment had nothing to do with age but was based on other factors.

The issues in the case are framed in the portion of the appeal papers called the “questions presented” - and they are:

1. Whether an employee alleging disparate impact under the ADEA bears the burden of persuasion on the “reasonable factors other than age” defense, as held by the Second Circuit in this case in conflict with the decisions of other circuits and a regulation of the Equal Employment Opportunity Commission.

2. Whether respondents’ practice of conferring broad discretionary authority upon individual managers to decide which employees to lay off during a reduction in force constituted a “reasonable factor other than age” as a matter of law.
What does that mean? In plain(er) English:

1. Who has to persuade the court (or jury) that the reasonable factors existed, or didn’t exist? Does the plaintiff have to prove that they didn’t exist, or that they were pretextual, or does the employer have to prove that they did?
2. If an employer lets its middle managers decide, as a matter of policy, who goes and who stays in a workplace reduction in force (RIF), is that policy alone one of those “reasonable factors” which would absolve the employer of liability under ADEA?

Interesting case - it’ll be interesting to see whether the Supremes take it. There seems to be a split in the circuits as to the first question, which generally weighs in favor of the Supremes taking a case.

As reported by Law.com, eleven states are considering legislation that would empower employees who’ve been subjected to abusive bully bosses to sue those bosses for the damages that result. The article reports that the laws would give “victims of abuse like taunting and yelling the right to sue for damages.” The states where such laws are pending are Connecticut, Hawaii, Kansas, Massachusetts, Missouri, Montana, New Jersey, New York, Oklahoma, Oregon and Washington.

The Strategic Lawyer thinks this is a problem. As proof, it quotes a statistic from a survey in the Law.com article that 44% of employees think that their boss is abusive. New Jersey Employment Law Blog mentions the same statistic and says simply “It’s hard to tell whether it says more about the bosses or the employees.” Well, yes, exactly! Frankly, having worked for my share of abusive and toxic bosses, I’d be more inclined to believe that 44% statistic merely supports the need for such legislation.

But expect the lawyers for management to complain loudly - lawyers like Stephen J. Hirschfeld of Employment Law Alliance. His comment will sound familiar to readers of this blog: “If they don’t get a handle on this in a proactive way, the legislatures and courts will take over. I don’t happen to believe that’s in America’s best interest. It’ll open the floodgates to litigation.”

Slippery slope! Beware! Maybe the floodgates should be opened.

Technorati Tags: bullying at work, toxic boss, employment law, south carolina

Is it necessary to have a lawyer in order to get through the required EEOC (or SHAC, in SC) process prior to filing suit over violations of certain federal laws (i.e., the provisions of Title VII, ADEA, EPA, etc.)?

No - strictly speaking, it isn’t necessary. However, it is a good idea. Here’s why: the process is not aimed at getting the plaintiff-to-be compensated for his or her injury. It’s designed to give the EEOC/SHAC/other agency (in other states) an opportunity to decide whether or not to take the case. The chances of that happening are pretty slim - in the vast majority of cases, what’s called a “notice of right to sue” letter will be issued. All this letter means is that the employee is given the go-ahead to file suit. It carries no weight or determination as to the merits of the case. In fact, EEOC only has limited options - “right to sue” letter or take the case itself.

What kinds of cases does the agency take? Usually those of significant social import, those involving large numbers of wronged employees, and those of egregious facts. If your case doesn’t fall within those categories, don’t be discouraged. While having the EEOC or other similar agency spearhead your litigation for you certainly carries some benefits it also means you give up a certain amount of control. So there are advantages and disadvantages both ways.

Why is a lawyer a good idea? Because she or he can make the most of the process to your advantage. Remember, the process isn’t designed to benefit either party - it’s solely for the agency’s benefit. The lawyer’s role is to help you shape your argument and your statement of the facts, and present sufficient evidence to the agency to enable the agency (and the lawyer, acting on your behalf) to more fully develop the facts.  Additionally, if mediation is offered and entered into by the employer, having a lawyer speak on your behalf can dramatically improve your chances of a reasonable settlement.

Consider retaining an experienced attorney who’s familiar with the process before you file your charge.