Thanks to Mike Fox of Jottings by an Employer's Lawyer for his mention of our site's new design. It's my hope that the new layout will give visitors easier access to useful information on our site.
If you have not already done so, I would encourage you to visit Jottings and bookmark it. It is truly one of the finest information sources for anyone working in HR. It is one of the few sites that I check every single day. You should too.
Yes friends, it's time once again to issue our Questionable HR Management Award Grand Prize. As you know we periodically hand out this prestigious award to a company that has shown particularly bad HR judgment and a complete lack of common sense.
Today the award goes to Packaging Corporation of America in Counce, Tenn. for its inadvisable termination of an employee in response to said employee's election to the Mississippi State Senate. According to the Clarion Ledger, Freshman state Sen. Eric Powell learned two days after his swearing-in last week that he had been fired from his regular job. Powell, said his firing came as a result of his election as a state senator in Mississippi.
"All of a sudden, with no phone call or anything, just a letter in the mail after 11 1/2 years of service," said Powell, who is married and has three children. "That's the kind of thanks I get for hard work and loyalty. It's the kind of thing I came to the Senate on behalf of working people to fight."
Labor Prof Blog, who put me on to the story, noted that it seems pretty clear that the termination was directly related to Mr. Powell's election. This was especially boneheaded given the fact that the company initially encouraged Powell in his run for office.
Now thanks to this bizarre HR snafu, instead of having an employee in the state senate, PCA likely has:1) a union grievance (Powell was a union member and the collective bargaining agreement specifically allows for employee leave when running for public office and only requires resignation if the office obtained is a full-time job);
2) a lawsuit (many states have statutory prohibitions on retaliation against employees for serving in public office); and
3) a state senator that is less than enamored with the company.
We therefore proudly award Packaging Corporation of America our Questionable HR Management Award! Feel free to print out the award emblem and wear it with pride.Just came across a good article at Law.com dealing with the implementation of new e-discovery rules that are forcing companies to turn over damning evidence that has been stored electronically.
General Counsels are pulling their hair out trying to educate their managers and others that email often lasts forever and that they should not opine as to the reason an employee was fired, etc. using email.
The article features several types of emails that cause the most trouble. Some of my favorite opening lines from emails:"Don't put this in writing, but ... " "This is off the record," started the e-mail that in fact put it all on the record; and"We may be in breach of contract, and here's why."
And of course there are the HR-related emails:
"I can't believe she's pregnant at such an inconvenient time at work." and"we need to get rid of the dead wood."
The message is clear: Employers must continue to train and retrain employees on what is an is not appropriate subject matter for an email. And for Plaintiffs, be diligent about seeking production of emails in discovery. There's gold in them there hills.
Women are a powerful and valuable force in today's workplace. They represent some of the best and brightest that industry has to offer, but many organizations aren't set up to properly attract and retain them. The HR World Editors have put together a list of 100 resources designed to help your organization recruit and retain talented female employees.
Source: HR World EditorsPeter Mullison over at the Colorado Employment Law Blog has a good article on employee privacy in the workplace, or more specifically, the lack thereof. Peter discusses the Court's opinion in United States v. Barrows, a 10th Circuit Court of Appeals decision finding that an employee did not have a protected privacy interest in the child pornography files found by a co-worker on this personal computer that he brought to work.
The analysis in this case is slightly more involved because the employer in question was a government entity and therefore state action was at issue. In cases involving employees of private employers, the employee's positions would be even weaker.
Mullison points out two rules to live by:
1) Stay away from kiddie porn; and2) Recognize that your privacy rights in the workplace are less than you might think.
Good rules.
Source: Colorado Employment Law BlogThis is a question that I get quite often from employees: What are the limits of what I can say in the workplace? The answer is usually "Not as much as you think." Many employees are surprised to learn that, generally speaking, employees of private sector employers have no constitutional "free speech" rights in the workplace.
The Delaware News Journal has an article on the limits of free speech in the workplace that employees would do well to read if they have questions in this are.
We have previously covered instances in which employees have been fired for posting something on their blog that their employer did appreciate. With the advent of Facebook, MySpace and other social media, the problem is only becoming more acute.
Employers are wisely beginning to respond to the situation by publishing their own policies governing such communications. You can find IBM's blogging policy here. And here is Yahoo's policy as to personal blogs.
If your company does not have its own policy yet, you might give these two policies a look to get a general idea as to what an employer's expectations will likely be regarding its employee's conduct in the online world.The WARN Act is one of those areas that everybody needs a refresher course in now and again. Most HR officers (and frankly many HR lawyers) deal with it infrequently at best. To the rescue comes Diane M. Pfadenhauer or Strategic HR Lawyer Blog, and her article: "BEYOND THE WARN NOTICE: GETTING TO THE TIPPING POINT AND BEYOND"
I commend it to your reading.As more companies adopt workplace models in which employees work from home, it has become more important for managers to learn to communicate and supervise, as well as foster teamwork among employees who work remotely, without the benefit of frequent face-to-face contact in a regular office setting.
Here is a good article from the Wall Street Journal addressing the topic.
Hat tip to Home Office Lawyer Blog for the link.Most employers believe that if they set up an at-will system and police it vigorously they will be safe from lawsuits. However, despite almost universal acceptance of at-will relationships in the United States, employment litigation is on the rise and is now a large percentage of cases on court dockets. A recent article by Ellen Dannin gives thoughtful consideration to the at-will doctrine and whether it still serves a useful purpose.
In her article, she notes that dissatisfaction with at-will doctrine has led courts and legislatures to develop many common law contract, tort doctrines and statutory exceptions, leading to greater complexity and uncertainty. By now most bad reasons for firing workers have been made illegal, so an at-will regime is limited to firing workers for a good reason or no reason. It also seems unlikely that most employers want to fire their employees for no reason, because, by definition, this means firing good employees. Thus the so-called "at will" doctrine is reduced to one in name only. Her article asks what is the benefit to employers of this strategy. . . and what is the alternative.
Source: LaborProf Blog
Working America blog has announced its winners in its "My Bad Boss" contest. The winner? A boss that through out an employee's leave paperwork, causing him to lose out on any pay for days missed due to cancer treatment. Now that is bad.
There is a new federal minimum wage and with it comes a new minimum wage poster. All employers subject to the FLSA must display the poster. Fortunately, you need not go out and buy one. The Department of Labor has been kind enough to produce a printer-ready file of the required poster that you can download straight from their website.
You can get the poster here.
This past week retired Harvard Business School Professor Shoshana Zuboff published an article addressing the issue from an environment standpoint. He is addressing mayors from the around the country that were meeting to discuss the air polution and road congestion issues facing their respective cities. Here is a snippet:
Big city mayors meet this week [note: that was the week of May 15] to discuss what they can do to reduce global warming. Alot of their talk will focus on how to get people to do less: drive less, use less electricity, etc. As in the spirit of John's recent post, the debate takes the form of parsing a scarce resource. It's punitive and puritanical. Worst of all, it assumes that the institutional demands on us stay the same. As always, it's the individual that is asked to sacrifice and change-not the institutions.But inside the support economy is a far more sustainable and profound response to climate crisis. It entails the shift from concentrated to distributed patterns of life, work, consumption. Start with our daily obeisance to the gods of command and control: the commute. The commute exists because in the late eighteenth century canny British factory owners figured out that they could get more work out of people and use fixed assets more efficiently if everyone worked in the same place at the same time. Today, the concentrated pattern of work costs far more than it saves for firms, individuals, and the planet: It feeds needless bureaucracy; it destroys value by insulating employees from consumers; it requires mass-carbon-spewing transport. The barriers to distributed working are not technological or substantive. Progress on this front has been slow because employers don't want to give up physical supervision, because office politics require face time, because people who work "away" take unfair hits on their careers and prospects. Concentrated work patterns express power politics and are maintained out of inertia on both sides of the power equation.
You can read the rest of her article here.
As this recent editorial in the New York Times points out, this fight is pitting two formidable interests - the gun lobby and corporate America - against one another. From the article:
Bills to deny this common-sense right to workplace safety were initially approved in three states. But they failed last year in such gun-friendly states as Florida, Georgia, Indiana and Virginia after business interests rose up in active opposition. The National Rifle Association is back at work harder than ever in a dozen states. But so are Chambers of Commerce and corporate executives, warning of the danger -- and business liability -- of forcing companies to allow workers to carry guns.
Here in Texas, the gun lobby is hard at work to pass just this sort of legislation. My friend Mike Fox put me on to state House Bill 220, which would prohibit employers from banning guns in parking lots except under very narrow circumstances, and SB 534/HB 992, which would provide a cause of action for anyone discharged for having a gun on an employer's parking lot if certain notice requirements have been met by the employee.
As if employers didn't have enough to deal with without employees being allowed by law to pack heat at work. Pure insanity.
OK here is some homework for every Texas employer that reads this blog: Contact your state senator and congressperson and let them know that employee safety is important to you and that you hope they will not support any of these bills.State Senator Contact Info . State Representative Contact InfoTheoretically related Links:Guns in the Workplace - HR Lawyer's BlogNational Rifle Association web page in support of the Texas billsHouston Chronicle Article on the Texas bills
Last year at this time we were covering a topic that got a great deal of attention. Women in the Workplace: Having it all or "Half of it all." Among other things, the article noted:
"Although the nation's law schools for years have been graduation classes that are almost evenly split between men and women, and although firms are absorbing new associates in numbers that largely reflect that balance, something unusual happens to most women before they begin to climb into the upper tiers of law firms. They disappear."
So, a year later. . . are we doing any better?
Although there is no law that requires employers to have employee handbooks or personnel manuals, they are one of the best tools for communicating information to employees about your company's policies, their performance standards, and employment benefits. By having written policies in place, an employer is also able to develop uniform standards within the workplace that can help promote fairness and the consistent treatment of its employees. Handbooks are therefore a must in terms of an employer's ability to comply with their legal obligations to their employees.
An employer that does not have written guidelines in place is much more likely to encounter problems arising from ignorance of its policies, inconsistent or unfair application of those policies, conflicting policies, and resulting confusion among its employees. This can lead to internal problems such as employee dissatisfaction and discrimination charges filed by employees who feel they have been treated unfairly.
Jacqueline McManus has an excellent article in the Monterey Herald describing all of the reasons why an employee handbook is really a necessity for even relatively small employers. I reccomend it to you for your consideration.
Despite criticisms of the hourly billing format, its use continues to grow. In 2005, 87.1 percent of companies said they used standard or discount hourly rates, compared with 81.2 percent in 2004 and 81 percent in 2003.While 62 percent of respondents are open to alternative fee arrangements -- including fixed, blended hourly rate, contingency and retainer -- they say that 90 percent of outside counsel resist the suggestion. (Emphasis added).
Ninety Percent? So why are big law firms resistant to change? The answer is simple. Hourly billing is often nothing short of an acceptable form of overbilling. Work on a project is open-ended, set objectives are often as vague as "win the case" and there often is no billing budget set out at all. Combine these ingredients with the incredible pressure large firms place on their associates to bill hours and the pressures partners face in earning enough to cover their gigantic overhead plus a more than attractive PPP and you have a recipe for an unbelievable amount of over...er... hourly billing.
With these kind of economics at work, its no wonder that large firms treat alternative billing as some type of odd-ball granola alternative lifestyle. "As if traditional (hourly) billing came over on the Mayflower."This problem is often no more apparent than in the employment law context. How frustrating must it be for general counsels to see case after case cost $50K, $75K, $100K or more to litigate through the summary judgment phase only to then settle for $50K or less. Ridiculous. And just as strange, some large firms still don't offer flat rates for everyday types of services such as employment handbooks or EEOC Charge responses. I agree with Jay that I don't think corporate counsels are going to allow themselves to be ignored forever on these issues. It may take more of an effort on their part to shop around for local firms that truly believe in providing real customer service and sensible billing models but eventually they will decide its worth it.
For more on alternative billing, read:
Friend of mine Michael Maslanka has an excellent article this month in Texas Lawyer entitled "A Plea for Sanity: How GCs Can Help Stop the Culture of Extreme Work". I encourage everyone to read it. The dangers of overworking employees is an issue that I have spoken on and written about here before. Mike's article is an excellent description of the problem and a thoughtful look at some possible solutions.
From the article:
Employees work too hard, and that's not good for business. Tired accounting staff don't add columns A and B correctly. Exhausted executives make rash decisions. Sleep-deprived employees driving home from a late night at the office run off the road or worse. I'm not talking about work-life balance. I'm talking about working to extremes.Simply put, there's no return on investment on exhausted employees. It's the general counsel, the adviser and counselor to the company, who's often in the best position to put the work lives of the executives, managers and employees into a context that makes sense and that creates the biggest ROI.
Don't believe that overtired employees and execs are a problem? The December 2006 issue of the Harvard Business Review has an insightful article titled "Extreme Jobs: The Dangerous Allure of the 70-Hour Work Week." In it, authors Sylvia Ann Hewlett and Carolyn Luce report that 62 percent of high-earning individuals work more than 50 hours per week, 35 percent work more than 60 hours per week and 10 percent work more than 80 hours per week.
Michael goes on to discuss some possible solutions including:
Union membership dropped to 12% of U.S. workers last year, extending a steady decline from the 1950s when more than a third belonged to unions.
After membership had held steady at 12.5% in 2005, it declined anew last year, a decrease of more than 325,000 workers, the Bureau of Labor Statistics said.
Membership had been 20.1% in 1983, when the bureau first provided comparable numbers. About 35% of American workers were union members in the mid-1950s.
Source: LA Times
Discontented workers, lured by promises of better salaries and more opportunities, could move in sizable numbers to new jobs this year, a national survey by Yahoo HotJobs shows. The online survey of 5,331 workers showed 45 percent planned to change jobs at some time during 2007 and only about one-third were so satisfied with their current position they were not expecting to look.
Given that this was an internet survey, the fact that internet users tend to be younger and more affluent thant the geeral public should be taken into considerationSee more coverage here.
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